EXHIBIT 10.3
EXECUTION COPY
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MARCH 31, 2002
AMONG
▇▇▇▇▇▇▇ ▇▇▇▇▇ RENTAL, L.P.,
AS COMPANY,
▇▇▇▇▇▇▇ ▇▇▇▇▇ RENTAL HOLDINGS, L.P.,
AS GUARANTOR,
THE LENDERS LISTED HEREIN,
AS LENDERS,
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
AS LEAD ARRANGER AND SYNDICATION AGENT,
AND
FLEET NATIONAL BANK,
AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT
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▇▇▇▇▇▇▇ ▇▇▇▇▇ RENTAL, L.P.
▇▇▇▇▇▇▇ ▇▇▇▇▇ RENTAL HOLDINGS, L.P.
CREDIT AGREEMENT
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS................................................................................ 2
1.1 Certain Defined Terms...................................................................... 2
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement........ 44
1.3 Other Definitional Provisions and Rules of Construction.................................... 44
1.4 Changes in GAAP............................................................................ 45
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS................................................. 45
2.1 Commitments; Making of Loans; the Register; Notes.......................................... 45
2.2 Interest on the Loans...................................................................... 52
2.3 Fees....................................................................................... 55
2.4 Scheduled Payments of Term Loans Repayments, Prepayments and Reductions in Revolving Loan
Commitments; General Provisions Regarding Payments; Application of Proceeds of Collateral
and Payments Under Guaranties. 56
2.5 Use of Proceeds............................................................................ 63
2.6 Special Provisions Governing Eurodollar Rate Loans......................................... 64
2.7 Increased Costs; Taxes; Capital Adequacy................................................... 66
2.8 Obligation of Lenders and Issuing Lenders to Mitigate...................................... 70
2.9 Defaulting Lenders......................................................................... 70
2.10 Removal or Replacement of a Lender......................................................... 72
SECTION 3. LETTERS OF CREDIT.......................................................................... 73
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations Therein.............. 73
3.2 Letter of Credit Fees...................................................................... 77
3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit......................... 78
3.4 Obligations Absolute....................................................................... 80
3.5 Indemnification; Nature of Issuing Lenders' Duties......................................... 81
3.6 Increased Costs and Taxes Relating to Letters of Credit.................................... 82
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT.................................................. 83
4.1 Closing Date............................................................................... 83
4.2 Conditions to Effectiveness of this Agreement.............................................. 84
4.3 Conditions to All Loans.................................................................... 88
i
4.4 Conditions to Letters of Credit............................................................ 89
4.5 Failure to Meet Conditions to Effectiveness................................................ 89
SECTION 5. HOLDINGS' AND COMPANY'S REPRESENTATIONS AND WARRANTIES..................................... 90
5.1 Organization, Powers. Qualification. Good Standing, Business and Subsidiaries.............. 90
5.2 Authorization of Borrowing, etc............................................................ 91
5.3 Financial Condition........................................................................ 92
5.4 No Material Adverse Change................................................................. 93
5.5 Title to Properties; Liens; Real Property.................................................. 93
5.6 Litigation; Adverse Facts.................................................................. 94
5.7 Payment of Taxes........................................................................... 94
5.8 Performance of Agreements; Materially Adverse Agreements................................... 94
5.9 Governmental Regulation.................................................................... 95
5.10 Securities Activities...................................................................... 95
5.11 Employee Benefit Plans..................................................................... 95
5.12 Certain Fees............................................................................... 96
5.13 Environmental Protection................................................................... 96
5.14 Employee Matters........................................................................... 96
5.15 Solvency................................................................................... 97
5.16 Matters Relating to Collateral............................................................. 97
5.17 Disclosure................................................................................. 98
5.18 Subordination of Shareholder Subordinated Notes............................................ 98
SECTION 6. HOLDINGS' AND COMPANY'S AFFIRMATIVE COVENANTS.............................................. 98
6.1 Financial Statements and Other Reports..................................................... 99
6.2 Corporate/Partnership Existence, etc....................................................... 104
6.3 Payment of Taxes and Claims; Tax Consolidation............................................. 105
6.4 Maintenance of Properties; Insurance; Application of Net Insurance/Condemnation Proceeds... 105
6.5 Inspection Rights; Audits of Inventory and Accounts Receivable; Lender Meeting; Internal
Audit; Supplemental Appraisal; Field Examinations.......................................... 107
6.6 Compliance with Laws, etc.................................................................. 108
6.7 Environmental Review and Investigation, Disclosure, Etc.; Actions Regarding Hazardous
Materials Activities, Environmental Claims and Violations of Environmental Laws............ 108
6.8 Execution of Subsidiary Guaranty and Personal Property Collateral Documents by Subsidiaries
and Future Subsidiaries.................................................................... 111
6.9 Conforming Leasehold Interests; Matters Relating to Additional Real Property Collateral.... 112
6.10 Interest Rate Protection................................................................... 114
6.11 Post-Closing Deliveries.................................................................... 115
6.12 Deposit Accounts and Cash Management Systems............................................... 115
6.13 Sale of Assets............................................................................. 115
ii
SECTION 7. HOLDINGS' AND COMPANY'S NEGATIVE COVENANTS................................................. 115
7.1 Indebtedness............................................................................... 115
7.2 Liens and Related Matters.................................................................. 118
7.3 Investments; Joint Ventures................................................................ 120
7.4 Contingent Obligations..................................................................... 122
7.5 Restricted Junior Payments................................................................. 123
7.6 Financial Covenants........................................................................ 124
7.7 Restriction on Fundamental Changes; Permitted Asset Sales and Acquisitions................. 127
7.8 Fiscal Year................................................................................ 129
7.9 Sales and Lease-Backs...................................................................... 129
7.10 Sale or Discount of Receivables............................................................ 129
7.11 Transactions with Shareholders and Affiliates.............................................. 130
7.12 Disposal of Subsidiary Interests........................................................... 130
7.13 Conduct of Business........................................................................ 130
7.14 Amendments of Documents Relating to Subordinated Indebtedness and Senior Notes; Amendments
of Term Loan Credit Documents.............................................................. 131
7.15 ▇▇▇▇ Management Fee........................................................................ 132
SECTION 8. EVENTS OF DEFAULT.......................................................................... 132
8.1 Failure to Make Payments When Due.......................................................... 133
8.2 Default in Other Agreements................................................................ 133
8.3 Breach of Certain Covenants................................................................ 133
8.4 Breach of Warranty......................................................................... 133
8.5 Other Defaults Under Loan Documents........................................................ 133
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc....................................... 134
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc......................................... 134
8.8 Judgments and Attachments.................................................................. 134
8.9 Dissolution................................................................................ 135
8.10 Employee Benefit Plans..................................................................... 135
8.11 Change in Control.......................................................................... 135
8.12 Invalidity of Guaranties; Failure of Security; Repudiation of Obligations.................. 135
8.13 Material Adverse Effect.................................................................... 136
SECTION 9. AGENTS..................................................................................... 137
9.1 Appointment................................................................................ 137
9.2 Powers and Duties; General Immunity........................................................ 138
9.3 Representations and Warranties; No Responsibility For Appraisal of Creditworthiness........ 140
9.4 Right to Indemnity......................................................................... 140
9.5 Successor Administrative Agent and Swing Line Lender....................................... 140
9.6 Collateral Documents and Guaranty.......................................................... 141
iii
SECTION 10. MISCELLANEOUS.............................................................................. 143
10.1 Assignments and Participations in Loans and Letters of Credit.............................. 143
10.2 Expenses................................................................................... 146
10.3 Indemnity.................................................................................. 147
10.4 Set-Off; Security Interest in Deposit Accounts............................................. 148
10.5 Ratable Sharing............................................................................ 148
10.6 Amendments and Waivers..................................................................... 149
10.7 Independence of Covenants.................................................................. 150
10.8 Notices.................................................................................... 150
10.9 Survival of Representations, Warranties and Agreements..................................... 151
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative...................................... 151
10.11 Marshalling; Payments Set Aside............................................................ 151
10.12 Severability............................................................................... 151
10.13 Obligations Several; Independent Nature of Lenders' Rights................................. 152
10.14 Headings................................................................................... 152
10.15 Applicable Law............................................................................. 152
10.16 Successors and Assigns..................................................................... 152
10.17 Consent to Jurisdiction and Service of Process............................................. 152
10.18 Waiver of Jury Trial....................................................................... 153
10.19 Confidentiality............................................................................ 154
10.20 Counterparts; Effectiveness................................................................ 154
10.21 Limitation on Liability of General Partner................................................. 155
10.22 "C" Corporation Conversion................................................................. 155
10.23 Effect on Existing Credit Agreement........................................................ 155
10.24 Reaffirmation of Validity and Enforceability of Documents and Obligations.................. 156
10.25 Arm's Length Agreement..................................................................... 156
10.26 No Third-Party Beneficiaries............................................................... 156
10.27 Release.................................................................................... 156
10.28 Advice of Counsel.......................................................................... 157
iv
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
IV FORM OF REVOLVING NOTE
IV-A FORM OF TERM NOTE
V FORM OF SWING LINE NOTE
VI FORM OF COMPLIANCE CERTIFICATE
VII FORM OF OPINIONS OF COUNSEL TO LOAN PARTIES
VIII FORM OF ACKNOWLEDGEMENT AND AUTHORIZATION-NET CAPITAL EXPENDITURES
IX FORM OF ASSIGNMENT AGREEMENT
X FORM OF CERTIFICATE RE NON-BANK STATUS
XI FORM OF FINANCIAL CONDITION CERTIFICATE
XII FORM OF INTERCREDITOR AGREEMENT
XIII FORM OF PLEDGE AND SECURITY AGREEMENT
XIV FORM OF SUBSIDIARY GUARANTY
XV FORM OF HOLDINGS GUARANTY
XVI FORM OF MORTGAGE
XVII FORM OF COLLATERAL ACCESS AGREEMENT
XVIII FORM OF SUBORDINATION PROVISIONS
XIX FORM OF BORROWING BASE CERTIFICATE
XX FORM OF ACKNOWLEDGMENT AND CONSENT
XXI FORM OF BUDGET
XXII FORM OF LOCKBOX ACCOUNT AGREEMENT
XXIII FORM OF BLOCKED ACCOUNT AGREEMENT
XXIV FORM OF VARIANCE REPORT
XXV FORM OF RECONCILIATION REPORT
v
SCHEDULES
A LIST OF DEFAULTS AND INCIPIENT DEFAULTS
1.1 (i) ADJUSTMENTS TO BORROWING BASE
1.1 (ii) ADD BACKS TO EBITDA
1.1 (iii) OTHER INVESTORS/EXISTING INVESTORS
1.1 (iv) RECAPITALIZATION TRANSACTIONS
1.1 (v) 1998 CLOSING DATE AND 1999 CLOSING DATE INITIAL VALUES
1.1 (vi) CERTAIN SUBSIDIARIES
1.1 (vii) VALUATION PERCENTAGES
1.1 (viii) APPRAISAL FIRMS
1.1 (ix) EQUIPMENT NOT APPRAISED
1.1(x) THIRD PRIORITY TERM LOAN DOCUMENTS
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
3.1 EXISTING LETTERS OF CREDIT
4.2C CORPORATE AND CAPITAL STRUCTURE; OWNERSHIP
4.2E(vi) CERTAIN LIENS ON VESSELS
5.1 SUBSIDIARIES OF COMPANY
5.3 CERTAIN UNDISCLOSED LIABILITIES
5.4 CERTAIN MATERIAL ADVERSE CHANGES
5.5 REAL PROPERTY
5.5A TITLE TO PROPERTIES; LIENS
5.16 EXCEPTIONS TO CREATION, PERFECTION AND PRIORITY OF LIENS
6.11 POST-CLOSING DELIVERIES
6.13 SALE OF CERTAIN ASSETS
7.1 CERTAIN EXISTING INDEBTEDNESS
7.2 CERTAIN LIENS EXISTING ON THE EFFECTIVE DATE
7.3 CERTAIN EXISTING INVESTMENTS
7.4 CERTAIN EXISTING CONTINGENT OBLIGATIONS
7.7 CERTAIN PERMITTED REAL ESTATE SALES
7.9 CERTAIN PERMITTED LEASEBACK TRANSACTIONS
7.11 CERTAIN TRANSACTIONS WITH AFFILIATES
7.12 FLEET MAIN ACCOUNT; LOCKBOX ACCOUNTS; LOCKBOX ACCOUNT BANKS;
DISBURSEMENT ACCOUNTS;
vi
▇▇▇▇▇▇▇ ▇▇▇▇▇ RENTAL, L.P.
▇▇▇▇▇▇▇ ▇▇▇▇▇ RENTAL HOLDINGS, L.P.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT is dated as of March 31,
2002 and entered into by and among ▇▇▇▇▇▇▇ ▇▇▇▇▇ RENTAL, L.P., a Pennsylvania
limited partnership ("Company"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ RENTAL HOLDINGS, L.P., a
Pennsylvania limited partnership ("Holdings"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS
L.P. ("GSCP"), as lead arranger (in such capacity, "Lead Arranger") and
syndication agent (in such capacity, "Syndication Agent"), THE FINANCIAL
INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (each individually referred to
herein as a "Lender" and collectively as "Lenders"), FLEET NATIONAL BANK
("Fleet"), as administrative agent for Lenders (in such capacity,
"Administrative Agent") and Fleet as Collateral Agent for Lenders (in such
capacity, "Collateral Agent").
R E C I T A L S
- - - - - - - -
WHEREAS, capitalized terms used herein having the meanings assigned to
those terms in subsection 1.1;
WHEREAS, Company and certain financial institutions (the "Original
Lenders"), the Syndication Agent, the Administrative Agent and Collateral Agent
were party to a Credit Agreement dated as of July 22, 1998 (the "Original Credit
Agreement");
WHEREAS, the Company, the Original Lenders, certain other financial
institutions (such additional financial institutions, together with the Original
Lenders, the "Existing Lenders"), Holdings, the Syndication Agent, the
Administrative Agent, and the Collateral Agent amended the Original Credit
Agreement in its entirety pursuant to the terms of an Amended and Restated
Credit Agreement dated as of June 30, 1999 (as amended or otherwise modified
prior to the date hereof, the "Existing Credit Agreement");
WHEREAS, the Company and Holdings have notified the Administrative Agent
that certain "Events of Default" and "Potential Events of Default" (as defined
in the Existing Credit Agreement) have occurred and such Events of Default and
Potential Events of Default are set forth on Schedule A annexed hereto
(collectively, the "Existing Defaults and Incipient Defaults"), and the Company
and Holdings have requested that the Administrative Agent, the Syndication Agent
and the Existing Lenders amend the Existing Agreement in accordance with the
terms hereof;
WHEREAS, as an accommodation to the Company, Holdings and the Loan Parties,
the Administrative Agent, the Syndication Agent and the Existing Lenders have
agreed to amend and restate the Existing Credit Agreement, subject to and solely
on the terms and conditions set forth herein;
WHEREAS, as part of such amendment and restatement transaction, on or prior
to the Effective Date, ▇▇▇▇/ACR, L.L.C. has agreed to provide the Company with
$8,000,000 in third-
1
priority debt financing on the terms and conditions set forth in the Third
Priority Term Loan Documents (as defined below);
WHEREAS, in connection with such amendment and restatement transaction, the
Company, Holdings, the Loan Parties, the Administrative Agent, the Syndication
Agent, and the Lenders have agreed to amend the Existing Credit Agreement in
certain respects and to enter into this Agreement as a restatement of the
Existing Credit Agreement;
WHEREAS, it is the intention of the Company, Holdings, the Loan Parties,
the Administrative Agent, the Syndication Agent and the Lenders that the
amendment and restatement of the Existing Credit Agreement pursuant to this
Agreement shall not effect a refinancing or novation of the Obligations under
the Existing Credit Agreement (the "Existing Obligations") which shall remain
outstanding under this Agreement, but rather a modification of the terms
governing repayment of such Existing Obligations, which shall remain outstanding
as of the date hereof and shall remain secured by the "Collateral" (as defined
in the Existing Credit Agreement);
WHEREAS, it is the intention of the parties hereto that, upon the
occurrence of the Effective Date, the Existing Defaults and Incipient Defaults
shall no longer be in effect; and
WHEREAS, it is the intention of the parties that the amendment and
restatement of the Existing Credit Agreement pursuant to this Agreement shall be
without prejudice to any rights or remedies that the Administrative Agent and
the Lenders have or may have with respect to any Events of Default or Potential
Events of Default as defined in, and pursuant to the terms and conditions of,
this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements, provisions and covenants herein contained, Holdings, Company,
Existing Lenders, the Syndication Agent, the Administrative Agent agree that, on
the Effective Date, the Existing Credit Agreement shall be amended and restated
in its entirety as follows:
SECTION 1.
DEFINITIONS
1.1 Certain Defined Terms.
---------------------
The following terms used in this Agreement shall have the following
meanings:
"Accounts" shall mean all of Company's and Permitted Subsidiaries' accounts
receivable, whether now or hereafter existing, arising in the ordinary course of
business from sales or leases of goods or rendition of services made by Company
or Permitted Subsidiaries, or through any of Company's or Permitted
Subsidiaries' divisions.
"Acknowledgment and Consent" means that certain Acknowledgment and Consent
executed by Holdings, the Company, and the Subsidiary Guarantors dated as of the
Effective Date and substantially in the form of Exhibit XX annexed hereto, as
such Acknowledgment and Consent may be amended, restated, supplemented or
otherwise modified from time to time.
2
"Actual Appraisal" means an actual appraisal of (i) all or substantially
all of the Company's Rental Equipment classified as crawler cranes, conventional
truck cranes, tower cranes and crane attachments, which appraisals may be
conducted by taking one or more samples and (ii) selected reasonable samples of
the remainder of the Company's Rental Equipment that is not classified as
crawler cranes, conventional truck cranes, tower cranes and crane attachments,
which appraisal shall be conducted during the period from September 30, 2002 to
January 1, 2003 by one of the appraisal firms listed on Schedule 1.1 (viii)
selected by the Company that is reasonably acceptable to the Administrative
Agent.
"Additional Mortgage" has the meaning assigned to that term in subsection
6.9.
"Additional Mortgaged Property" has the meaning assigned to that term in
subsection 6.9.
"Adjusted Borrowing Base Amount" means, as of any date of determination,
the Borrowing Base Amount, as adjusted in accordance with Schedule 1.1(i)
annexed hereto.
"Adjusted Eurodollar Rate" means, for any Interest Rate Determination Date
with respect to an Interest Period for a Eurodollar Rate Loan, the rate per
annum obtained by dividing (i) the arithmetic average (rounded upward to the
nearest 1/16 of one percent) of the offered quotations, if any, to first class
banks in the interbank Eurodollar market by Reference Lenders for U.S. dollar
deposits of amounts in same day funds comparable to the respective principal
amounts of the Eurodollar Rate Loans of Reference Lenders for which the Adjusted
Eurodollar Rate is then being determined (which principal amount shall be deemed
to be $1,000,000 in the case of any Reference Lender not making, converting to
or continuing such a Eurodollar Rate Loan) with maturities comparable to such
Interest Period as of approximately 10:00 A.M. (New York time) on such Interest
Rate Determination Date by (ii) a percentage equal to 100% minus the stated
maximum rate of all reserve requirements (including any marginal, emergency,
supplemental, special or other reserves) applicable on such Interest Rate
Determination Date to any member bank of the Federal Reserve System in respect
of "Eurocurrency liabilities" as defined in Regulation D (or any successor
category of liabilities under Regulation D); provided that if any Reference
Lender fails to provide Administrative Agent with its aforementioned quotation
then the Adjusted Eurodollar Rate shall be determined based on the quotation(s)
provided to Administrative Agent by the other Reference Lender(s).
"Administrative Agent" has the meaning assigned to that term in the
introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 9.5A.
"Affected Lender" has the meaning assigned to that term in subsection 2.6C.
"Affiliate" means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise.
3
"Agent" means, individually, each of Lead Arranger, Syndication Agent,
Administrative Agent and Collateral Agent, and "Agents" means Lead Arranger,
Syndication Agent, Administrative Agent and Collateral Agent, collectively.
"Agreement" means (x) prior to the Effective Date, the Existing Credit
Agreement and (y) on and after the Effective Date this Second Amended and
Restated Credit Agreement dated as of March 31, 2002, as it may be amended,
supplemented or otherwise modified from time to time.
"Applicable Base Rate Margin" means on and after the Effective Date, with
respect to Revolving Loans and Term Loans, a rate per annum equal to the
percentage set forth below opposite the Applicable Total Leverage Ratio in
effect as of such date of determination, any change in any such Applicable Base
Rate Margin to be effective on the date of any corresponding change in the
Applicable Total Leverage Ratio.
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APPLICABLE APPLICABLE
APPLICABLE BASE RATE MARGIN BASE RATE MARGIN
TOTAL LEVERAGE FOR FOR
RATIO TERM LOANS TERM LOANS
----------------------------------------------------------------
**** 5.5:1.00 2.50% 3.25%
----------------------------------------------------------------
* 5.5:1.00
**** 5.0:1.00 2.25% 3.25%
----------------------------------------------------------------
* 5.0:1.00
**** 4.5:1.00 2.00% 3.25%
----------------------------------------------------------------
* 4.5:1.00
**** 4.0:1.00 1.75% 3.25%
----------------------------------------------------------------
* 4.0:1.00
**** 3.5:1.00 1.50% 3.25%
----------------------------------------------------------------
* 3.5:1.00 1.25% 3.00%
================================================================
"Applicable Commitment Fee Percentage" means on and after the Effective
Date, a rate per annum equal to the percentage set forth below opposite the
Applicable Total Leverage Ratio in effect as of such date of determination, any
change in the Applicable Commitment Fee Percentage to be effective on the date
of any corresponding change in the Applicable Total Leverage Ratio.
=======================================
APPLICABLE APPLICABLE
TOTAL LEVERAGE COMMITMENT
RATIO FEE PERCENTAGE
---------------------------------------
**** 5.0:1.00 0.500%
---------------------------------------
* 5.0:1.00 0.375%
**** Denotes greater than or equal to
* Denotes less than
4
=======================================
**** 4.0:1.00
---------------------------------------
* 4.0:1.00 0.250%
=======================================
"Applicable Eurodollar Rate Margin" means on and after the Effective Date
with respect to Revolving Loans and Term Loans, a rate per annum equal to the
percentage set forth below opposite the Applicable Total Leverage Ratio in
effect as of such date of determination, any change in any such Applicable
Eurodollar Rate Margin to be effective on the date of any corresponding change
in the Applicable Total Leverage Ratio.
========================================================
APPLICABLE APPLICABLE
EURODOLLAR EURODOLLAR
APPLICABLE RATE MARGIN RATE MARGIN
TOTAL LEVERAGE FOR FOR
RATIO REVOLVING LOANS TERM LOANS
--------------------------------------------------------
**** 5.5:1.00 3.50% 4.25%
--------------------------------------------------------
* 5.5:1.00
**** 5.0:1.00 3.25% 4.25%
--------------------------------------------------------
* 5.0:1.00
**** 4.5:1.00 3.00% 4.25%
--------------------------------------------------------
* 4.5:1.00
**** 4.0:1.00 2.75% 4.25%
--------------------------------------------------------
* 4.0:1.00
**** 3.5:1.00 2.50% 4.25%
--------------------------------------------------------
* 3.5:1.00 2.25% 4.00%
========================================================
"Applicable Total Leverage Ratio" means, with respect to any date of
determination, the Total Leverage Ratio set forth in the Pricing Certificate (as
defined below) in effect for the Pricing Period (as defined below) in which such
date of determination occurs. For purposes of this definition, (i) "Pricing
Certificate" means an Officer's Certificate of Company certifying as to the
Total Leverage Ratio as of the last day of any Fiscal Quarter and setting forth
the calculation of such Total Leverage Ratio in reasonable detail, which
Officer's Certificate may be delivered to Administrative Agent at any time on or
after the date of delivery by Company of the Compliance Certificate (the
"Related Compliance Certificate") with respect to the period ending on the last
day of such Fiscal Quarter pursuant to subsection 6.1(vi), and (ii) "Pricing
Period" means each period commencing on the first Business Day after the
delivery to Administrative Agent of a Pricing Certificate and ending on the
first Business Day after the next Pricing Certificate is delivered to
Administrative Agent; provided that, anything contained in this definition to
the contrary notwithstanding, (a) the Applicable Total Leverage Ratio for the
period from the Effective Date to but excluding the date of commencement of the
next Pricing Period shall be deemed to be greater than 5.50:1.00 for purposes of
making the relevant calculation referred to above and (c) in the event that,
after the commencement of such first Pricing Period,
**** Denotes greater than or equal to
* Denotes less than
5
(X) Company fails to deliver a Pricing Certificate to Administrative Agent
setting forth the Total Leverage Ratio as of the last day of any Fiscal Quarter
on or before the last day on which Company is required to deliver the Related
Compliance Certificate (such last day being the "Cutoff Date") and (Y)
Administrative Agent determines (each such determination being an "Agent
Determination") on or after the Cutoff Date (on the basis of the Related
Compliance Certificate or a Pricing Certificate delivered after the Cutoff Date)
that the Applicable Total Leverage Ratio that would have been in effect if
Company had delivered a Pricing Certificate on the Cutoff Date is greater than
the Total Leverage Ratio set forth in the most recent Pricing Certificate
actually delivered by Company, then (1) the Applicable Total Leverage Ratio in
effect for purposes of making the relevant calculation referred to above for the
period from the Cutoff Date to the date of delivery by Company of the next
Pricing Certificate (or, if earlier, the next date on which an Agent
Determination is made) shall be the Total Leverage Ratio determined pursuant to
the Agent Determination and (2) on the first Business Day after Administrative
Agent delivers written notice to Company of any Agent Determination, Company
shall pay to Administrative Agent, for distribution (as appropriate) to Lenders,
an aggregate amount equal to the additional interest, letter of credit fees and
commitment fees Company would have been required to pay in respect of all
applicable Loans, Letters of Credit or Commitments in respect of which any
interest or fees have been paid by Company during the period from the Cutoff
Date to the date such notice is given by Administrative Agent to Company if the
amount of such interest and fees had been calculated using the Applicable Total
Leverage Ratio based on such Agent Determination.
"Approved Fund" means, with respect to any Lender that is a fund that
invests in commercial loans, any other fund that invests in commercial loans and
is managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Asset Sale" means the sale by Holdings, the Company, any of the Loan
Parties or any of their Subsidiaries to any Person, other than Holdings or any
of its wholly-owned Subsidiaries (and solely with respect to clause (i), the
General Partner) of (i) any of the stock or partnership interest of any of
Holdings' Subsidiaries, (ii) substantially all of the assets of any division or
line of business of Holdings, the Company, any of the Loan Parties or any of
their Subsidiaries, (iii) any of the Collateral, or (iv) any other assets
(whether tangible or intangible) of Holdings or any of its Subsidiaries;
provided, however, that Asset Sales shall not include (1) any discount without
recourse of accounts receivable arising in the ordinary course of business, but
only in connection with the compromise or collection thereof, (2) the leasing
(pursuant to operating leases in the ordinary course of business) or licensing
of personal property, (3) the sale for cash in the ordinary course of business
of Cash Equivalents, (4) disposals of obsolete, uneconomical, negligible, worn-
out or surplus property (including Intellectual Property) in the ordinary course
of business provided that the aggregate fair market value of all such property
does not exceed $2,000,000 during any Fiscal Year (it being understood that any
such individual disposal in the ordinary course of business of personal property
not included in the Borrowing Base Amount having a fair market value of less
than $50,000 will not be measured against the $2,000,000 basket), and (5) assets
transferred in connection with an Investment permitted pursuant to Section 7.3.
"Assignment Agreement" means an Assignment Agreement in substantially the
form of Exhibit IX annexed hereto.
6
"Bain" means ▇▇▇▇ Capital, LLC and/or one or more of its Affiliates.
"Bain Advisory Services Agreement" means that certain Advisory Services
Agreement by and among Company, Holdings and Bain, in the form delivered to
Agents prior to the 1998 Closing Date and as such agreement may thereafter be
amended, supplemented or otherwise modified from time to time to the extent
permitted under subsection 7.14A.
"Bain Cash Collateral Account" means the account established by the Company
with Fleet National Bank, account number 9429170652, into which the $8,000,000
received by the Company from the issuance of the Third Priority Term Loan Note
will be deposited.
"Bain Intercreditor Agreement" means an intercreditor agreement, in form
and substance satisfactory to the Collateral Agent, the Requisite Lenders,
Bain/ACR, L.L.C. and the Company, executed and delivered by ▇▇▇▇, Company and
the Collateral Agent.
"Bain Investors" means collectively, Bain/ACR, L.L.C., BCIP Associates II,
BCIP Associates II-B, ▇▇▇▇ Capital Fund VI, L.P., Bain/ACR Investment VI Corp.,
▇▇▇▇ Capital Fund VI-B, L.P., BCIP Trust Associates II, BCIP Trust Associates
II-B, Bain/ACR Investment BCIPII Corp., Bain/ACR Investment BCIPII-B Corp. and
BCIP Associates II-C.
"Bain Management Fees" means the fees (including one-time fees payable in
connection with acquisitions, divestitures and financings) payable by Holdings
or the Company to Bain pursuant to the Bain Advisory Services Agreement.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Base Rate" means a fluctuating interest rate per annum in effect from time
to time, which rate per annum shall at all times be equal to the higher of:
(i) the rate of interest announced publicly by Fleet in Boston,
Massachusetts, from time to time, as Fleet's base rate; and
(ii) 1/2 of 1% per annum above the Federal Funds Effective Rate.
"Base Rate Loans" means Loans bearing interest at rates determined by
reference to the Base Rate as provided in subsection 2.2A.
"Blocked Account Agreement" means an agreement substantially similar to
Exhibit XXIII hereto to which a Deposit Account is subject and to which the
Company, the Collateral Agent and a Deposit Account Bank are party.
"book value" means, with respect to any asset or assets, of any Person, the
value attributed thereto in the books and records of such Person from time to
time.
"Book Cash" means, as of any date of determination, all Cash Equivalents,
plus the amount of cash on deposit in the Deposit Accounts (other than the Bain
Cash Collateral Account) of Holdings, Company and its Subsidiaries on such date,
plus the amount of checks
7
deposited to such Deposit Accounts on such date, minus the outstanding checks
written against such Deposit Accounts and not yet presented.
"Borrowing Base Amount" means, at any date of determination, the sum of:
(i) 100% of the Orderly Liquidation Value of Eligible Cranes and
Lifting Equipment; plus
(ii) 75% of the Orderly Liquidation Value of Eligible Trucks and
Trailers;
plus
(iii) 85% of the aggregate value of Eligible Account Receivables; plus
(iv) 75% of the aggregate value of Eligible Parts and Supplies
Inventory; plus
(v) 75% of the aggregate Orderly Liquidation Value of Eligible
Excavation Equipment;
all as reflected on the most recently delivered Borrowing Base Certificate.
"Borrowing Base Certificate" means a certificate substantially in the form
of Exhibit XIX annexed hereto, with such modifications to form and presentation
as Administrative Agent may request from time to time, delivered to
Administrative Agent by Company pursuant to subsections 4.2 and 6.1(xix) or as
otherwise provided under Schedule 1.1(i).
"Branch Account" means a Deposit Account that is listed as a "Branch
Account" in Schedule 7.12, maintained by the Company at the branch level.
"Budget" means a monthly budget, substantially in the form of Exhibit XXI
and reasonably satisfactory in form and substance to the Administrative Agent
and the Requisite Lenders, reflecting the Company's projected cash receipts and
disbursements on a consolidated basis for the immediately succeeding 13-week
period.
"Business Day" means any day excluding Saturday, Sunday and any day which
is a legal holiday under the laws of the States of New York and Pennsylvania or
is a day on which banking institutions located in such state are authorized or
required by law or other governmental action to close, and (ii) with respect to
all notices, determinations, fundings and payments in connection with the
Adjusted Eurodollar Rate or any Eurodollar Rate Loans, any day that is a
Business Day described in clause (i) above and that is also a day for trading by
and between banks in Dollar deposits in the London interbank market.
"Capital Lease", as applied to any Person, means any lease of any property
(whether real, personal or mixed) by that Person as lessee that, in conformity
with GAAP, would be required to be accounted for as a capital lease on the
balance sheet of that Person.
"Carlisle" means Carlisle Equipment Group, L.P..
8
"Cash" means money, currency or a credit balance in a Deposit Account.
"Cash Collateral Account" has the same meaning as assigned to the term
"Collateral Account" in the Intercreditor Agreement.
"Cash Equivalents" means: (i) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Ratings Group ("S&P") or ▇▇▇▇▇'▇
Investors Service, Inc. ("Moody's"); (iii) commercial paper maturity no more
than one year from the date of creation thereof and at the time of acquisition,
having a rating of at least A-l from S&P or at least P-l from Moody's; (iv)
certificates of deposit or bankers' acceptances (or, with respect to foreign
banks, similar instruments) maturing within one year from the date of
acquisition thereof issued by any bank organized under the laws of the United
States of America or any state or territory thereof or the District of Columbia,
Japan or any member of the European Economic Community or any U.S. branch of a
foreign bank having at the date of acquisition thereof combined capital and
surplus of not less than $200,000,000; (v) 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 (iv) above; and (vi) investments in money market funds which invest
substantially all of their assets in securities of the types described in
clauses (i) through (v) above.
"Certificate re Non-Bank Status" means a certificate substantially in the
form of Exhibit X annexed hereto delivered by a Lender to Administrative Agent
pursuant to subsection 2.7B(iii).
"Class" means, as applied to Lenders, each of the following classes of
Lenders: (i) Lenders having Term Loan Exposure and (ii) Lenders having Revolving
Loan Exposure.
"Closing" or "Closing Date" has the meaning ascribed to that term in
subsection 4.1.
"Collateral" means, collectively, all of the real, personal and mixed
property (including capital stock) in which Liens are purported to be granted
pursuant to the Collateral Documents as security for the Obligations.
"Collateral Access Agreement" means any landlord waiver, mortgagee waiver,
bailee letter or any similar acknowledgment or agreement of any landlord or
mortgagee in respect of any Real Property Asset where any Collateral is located
or any warehouseman or processor (excluding lessees of property or equipment in
the ordinary course of business) in possession of any Collateral, substantially
in the form of Exhibit XVII annexed hereto with such changes thereto as may be
agreed to by Administrative Agent in the reasonable exercise of its discretion.
9
"Collateral Agent" means Fleet in its capacity as Collateral Agent under
the Collateral Documents and the Intercreditor Agreement and also means any
successor Collateral Agent appointed pursuant to Section 6(g) of the
Intercreditor Agreement.
"Collateral Documents" means the Pledge and Security Agreement, the
Intercreditor Agreement, the Bain Intercreditor Agreement, the Blocked Account
Agreements, the Collateral Access Agreements, the Lockbox Account Agreements,
the Reaffirmation Agreements, the Mortgages and all other instruments or
documents delivered by any Loan Party pursuant to this Agreement or any of the
other Loan Documents in order to grant to Collateral Agent, on behalf of
Lenders, a Lien on any real, personal or mixed property of that Loan Party as
security for the Obligations.
"Collateral Warranties" shall mean the representations and warranties made
with respect to the Collateral pursuant to subsections 5.5A and 5.16A of this
Agreement and Sections 5 and 8.6 of the Pledge and Security Agreement.
"Commercial Letter of Credit" means any letter of credit or similar
instrument issued for the purpose of providing the primary payment mechanism in
connection with the purchase of any materials, goods or services by Company or
any of its Subsidiaries in the ordinary course of business of Company or such
Subsidiary.
"Commitments" means the commitments of Lenders to make Loans as set forth
in subsection 2.1A of this Agreement.
"Common Units" means common partnership interests of Holdings (including
Class A, Class B, Class C and Class L units).
"Company" has the meaning assigned to such term in the introduction to this
Agreement.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit VI annexed hereto delivered to Administrative Agent by Company pursuant
to subsection 6.1 (vi).
"Conforming Leasehold Interest" means any Recorded Leasehold Interest as to
which the lessor has substantially agreed in writing for the benefit of
Administrative Agent (which writing has been delivered to Administrative Agent),
whether under the terms of the applicable lease, under the terms of a Landlord
Consent and Estoppel, or otherwise, to the matters described in the definition
of "Landlord Consent and Estoppel," which interest, if a subleasehold or sub-
subleasehold interest, is not subject to any contrary restrictions contained in
a superior lease or sublease.
"Consolidated Adjusted EBITDA" means, for any period, the sum of the
amounts for such period of (i) Consolidated Net Income, (ii) Consolidated
Interest Expense, (iii) provisions for taxes based on income (including, without
duplication, foreign withholding taxes and any payment of Permitted Tax
Distributions), (iv) total depreciation expense, (v) total amortization expense,
(vi) other non-cash items reducing Consolidated Net Income, and (vii) to the
extent deducted in determining Consolidated Net Income, those items described on
Schedule 1.1(ii) annexed hereto, less (a) other non-cash items increasing
Consolidated Net Income, and (b) to the
10
extent included in Consolidated Net Income, net gains on sales of used Cranes
and Lifting Equipment and used Excavation Equipment, all of the foregoing as
determined on a consolidated basis for Company and its Subsidiaries in
conformity with GAAP.
"Consolidated Capital Expenditures" means, for any period, the aggregate of
(i) all expenditures (whether paid in cash or other consideration or accrued as
a liability and including that portion of Capital Leases which is capitalized on
the consolidated balance sheet of Company and its Subsidiaries) by Company and
its Subsidiaries during that period that, in conformity with GAAP, are included
in "purchases of property, plant or equipment" or comparable items reflected in
the consolidated financial statements of Company and its Subsidiaries and (ii)
the purchase prices of all acquisitions (whether such acquisitions are
structured as purchases of assets or purchases of equity) made by the Company
and its Subsidiaries during that period (whether or not such acquisitions
constitute capital expenditures in conformity with GAAP) reflected in the
consolidated financial statements of Company and its Subsidiaries; provided,
however, that Consolidated Capital Expenditures shall exclude, whether or not
such a designation would be in conformity with GAAP, expenditures made in
connection with the replacement or restoration of assets to the extent that (i)
such expenditures are reimbursed or financed with insurance or condemnation
proceeds and (ii) the Company delivered its written acknowledgment and
authorization to the Agents in the form attached hereto as Exhibit VIII with
respect to such expenditures.
"Consolidated Cash Interest Expense" means, for any period, Consolidated
Interest Expense for such period excluding, however, any interest expense not
payable in Cash (including interest expense paid in kind and amortization of
discount, of deferred financing fees, of premiums paid on Hedge Agreements and
of debt issuance costs).
"Consolidated Interest Expense" means, for any period, total cash and non-
cash interest expense (including that portion attributable to Capital Leases in
accordance with GAAP, interest expense paid in kind and amortization or write-
off of discount, of deferred financing fees, of premiums paid on Hedge
Agreements and of debt issuance costs, and accretion of any debt discount and
capitalized interest) of Company and its Subsidiaries on a consolidated basis in
accordance with GAAP with respect to all outstanding Indebtedness of Company and
its Subsidiaries, including all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing, net costs under Interest Rate Agreements, commitment fees accrued
under subsection 2.3A and any administrative agent's fees payable to
Administrative Agent.
"Consolidated Net Income" means, for any period, the net income (or loss)
of Company and its Subsidiaries on a consolidated basis for such period taken as
a single accounting period determined in conformity with GAAP; provided that
there shall be excluded (i) the income (or loss) of any Person (other than a
Subsidiary of Company) in which any other Person (other than Company or any of
its Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Company or any of its
Subsidiaries by such Person during such period, (ii) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of Company or is merged
into or consolidated with Company or any of its Subsidiaries or that Person's
assets are acquired by Company or any of its Subsidiaries, (iii) the income of
any Subsidiary of Company to the extent that the declaration or payment of
dividends
11
or similar distributions by that Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
that Subsidiary, (iv) any gains or losses attributable to asset sales, other
than of new or used Cranes and Lifting Equipment or new or used Excavation
Equipment or returned surplus assets of any Pension Plan, and (v) (to the extent
not included in clauses (i) through (iv) above) any net extraordinary gains or
net extraordinary losses.
"Consolidated Total Debt" means, as at any date of determination, the
aggregate stated balance sheet amount of all Indebtedness of Company and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"Contingent Obligation" as applied to any Person, means any direct or
indirect liability, contingent or otherwise, of that Person (i) with respect to
any Indebtedness, lease, dividend or other obligation of another if the primary
purpose or intent thereof by the Person incurring the Contingent Obligation is
to provide assurance to the obligee of such obligation of another that such
obligation of another will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such obligation
will be protected (in whole or in part) against loss in respect thereof, (ii)
with respect to any letter of credit issued for the account of that Person or as
to which that Person is otherwise liable for reimbursement of drawings, or (iii)
under Hedge Agreements. Contingent Obligations shall include (a) the direct or
indirect guaranty, endorsement (otherwise than for collection or deposit in the
ordinary course of business), co-making, discounting with recourse or sale with
recourse by such Person of the obligation of another, (b) the obligation to make
take-or-pay or similar payments if required regardless of non-performance by any
other party or parties to an agreement, and (c) any liability of such Person for
the obligation of another through any agreement (contingent or otherwise) (X) to
purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise) or (Y) to maintain the solvency or any balance sheet item, level
of income or financial condition of another if, in the case of any agreement
described under subclauses (X) or (Y) of this sentence, the primary purpose or
intent thereof is as described in the preceding sentence. The amount of any
Contingent Obligation shall be equal to (A) the amount of the obligation so
guaranteed or otherwise supported or, if less, the amount to which such
Contingent Obligation is specifically limited, or (B) if neither amount in
clause (A) is stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform) as
determined by such Person in good faith. Contingent Obligations shall not
include standard contractual indemnities entered into in the ordinary course of
business.
"Contractual Obligation" as applied to any Person, means any provision of
any Security issued by that Person or of any material indenture, mortgage, deed
of trust, contract, undertaking, agreement or other material instrument to which
that Person is a party or by which it or any of its properties is bound or to
which it or any of its properties is subject.
"Corporate Disbursement Accounts" means the corporate disbursement accounts
maintained with Fleet, as set forth on Schedule 7.12.
"Corporate Loan Party" means any Loan Party which is a corporation.
12
"Cranes and Lifting Equipment" shall mean each item of equipment that is
owned by the Company or its Permitted Subsidiaries that constitutes any of the
following: a hydraulic truck crane, a hydraulic rough terrain crane, an aerial
lift, a carry-deck crane, a boom truck, a tower crane, a crawler crane, a
conventional truck crane or a crane attachment; including, without limitation,
those items identified on Schedule 2.1(d)(A) to the Pledge and Security
Agreement.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement, futures contract, option contract, synthetic cap or other similar
agreement or arrangement to which Company or any of its Subsidiaries is a party
which is entered into for the purpose of hedging against fluctuations in
currency values; provided however that such agreements (i) relate only to the
purchase or sale of equipment used in the business of the Company and (ii) are
not entered into for speculative purposes.
"Default Rate" has the meaning ascribed to that term in Section 2.2E.
"Deposit Account" means a demand, time, savings, passbook or like account
with a bank, savings and loan association, credit union or like organization,
other than an account evidenced by a negotiable certificate of deposit,
including without limitation, any Branch Account, Corporate Disbursement
Accounts, Regional Disbursement Accounts, Lockbox Accounts and the Fleet Main
Account.
"Deposit Account Bank" means a financial institution at which a Deposit
Account is maintained.
"Dollars" and the sign "$" mean the lawful money of the United States of
America.
"Earnout Value" means, with respect to any Permitted Acquisition, the
amount of the anticipated payments to be determined by Company and discounted at
a discount rate equal to the interest rate applicable to the Loans outstanding
on the date of the consummation of such Permitted Acquisition.
"EBITDA Criteria" means, for any Fiscal Year, actual EBITDA, determined on
a consolidated basis for Holdings and its Subsidiaries in conformity with GAAP
using the same methodology as Company used in its Financial Plan for Fiscal Year
2002, shall be at least 95% of the estimated EBITDA for Holdings and its
Subsidiaries set forth in the Financial Plan for such Fiscal Year.
"Effective Date" means the date on which the conditions precedent set forth
in subsection 4.2 shall be satisfied or waived in writing in accordance with the
terms hereof.
"Eligible Accounts Receivable" shall mean the aggregate face amount of
Company's and Permitted Subsidiaries' Accounts, as reflected on their books and
records in accordance with GAAP, payable in Dollars, that conform to the
warranties contained in this definition and to the Collateral Warranties. Unless
otherwise approved in writing by Administrative Agent, no Account shall be
deemed to be an Eligible Account Receivable if:
13
(i) the Account is unpaid 90 days or more from the original invoice
date; provided that with respect to any Account designated by
Administrative Agent as a "dated account", such Account shall not be deemed
ineligible pursuant to this clause (i) unless unpaid more than 30 days or
more from its due date or 180 days or more from its invoice date; or
(ii) such Account if from the same account debtor (or any affiliate
thereof) and fifty percent (50%) or more, in face amount, of other Accounts
from such account debtor (or any affiliate thereof) are ineligible under
the provisions of clause (i) above;
(iii) the Account, when aggregated with all other Accounts of such
account debtor, exceeds fifteen percent (15%) in face value of all
consolidated Accounts of Company and Permitted Subsidiaries in the
aggregate then outstanding, to the extent of such excess; or
(iv) (A) the account debtor is also a creditor of Company or
Permitted Subsidiaries, to the extent of the amount owed by Company or
Permitted Subsidiaries to the account debtor, (B) the account debtor has
disputed its liability on, or the account debtor has made any claim with
respect to, such Account or any other Account due from such account debtor
to Company or Permitted Subsidiaries, which has not been resolved to the
extent of such dispute or (C) the Account otherwise is or may become
subject to any right of setoff by the account debtor, to the extent of the
amount of such setoff; or
(v) to the knowledge of the Company, the account debtor has
commenced a voluntary case under the federal bankruptcy laws, as now
constituted or hereafter amended, or made an assignment for the benefit of
creditors, or if a decree or order for relief has been entered by a court
having jurisdiction in the premises in respect to the account debtor in an
involuntary case under the federal bankruptcy laws, as now constituted or
hereafter amended, or if any other petition or other application for relief
under the federal bankruptcy laws has been filed by or against the account
debtor, or if the account debtor has failed, suspended business, ceased to
be solvent, or consented to or suffered a receiver, trustee, liquidator or
custodian to be appointed for it or for all or a significant portion of its
assets or affairs; or
(vi) the sale is to an account debtor outside the continental United
States, the United States Virgin Islands, or Canada, unless the sale is (a)
on letter of credit, guaranty or acceptance terms, in each case acceptable
to Administrative Agent in its sole discretion, or (b) otherwise approved
by and acceptable to Administrative Agent in its reasonable discretion; or
(vii) the sale to the account debtor is on a ▇▇▇▇-and-hold,
guaranteed sale, sale-and-return, sale on approval or consignment basis or
made pursuant to any other written agreement providing for repurchase or
return except in accordance with ordinary course of business dealings or
customary practice; or
(viii) the account debtor is the United States of America or any
department, agency or instrumentality thereof, unless Company or such
Permitted Subsidiary duly and
14
effectively assigns its rights to payment of such Account to Administrative
Agent pursuant to the Assignment of Claims Act of 1940, as amended (31
U.S.C. Section 3727 et seq.); or
(ix) the goods giving rise to such Account have not been shipped and
delivered to and accepted by the account debtor or the services giving rise
to such Account have not been performed by Company or a Permitted
Subsidiary and accepted by the account debtor or the Account otherwise does
not represent a final sale; or
(x) the Account is not subject to a valid, enforceable and first
priority perfected Lien in favor of Administrative Agent; or
(xi) Administrative Agent, in the exercise of its reasonable
discretion, determines it to be ineligible.
"Eligible Assignee" means (a) (i) a commercial bank organized under the
laws of the United States or any state thereof; (ii) a savings and loan
association or savings bank organized under the laws of the United States or any
state thereof; (iii) a commercial bank organized under the laws of any other
country or a political subdivision thereof; provided that (x) such bank is
acting through a branch or agency located in the United States or (y) such bank
is organized under the laws of a country that is a member of the Organization
for Economic Cooperation and Development or a political subdivision of such
country; and (iv) any other entity which is an "accredited investor" (as defined
in Regulation D under the Securities Act) which extends credit or buys loans as
one of its businesses including insurance companies, funds, investment companies
and lease financing companies; and (b) any Lender, any Affiliate of any Lender
and, with respect to any Lender that is an investment fund that invests in
commercial loans, any other investment fund that invests in commercial loans and
that is managed or advised by the same investment advisor as such Lender or by
an Affiliate of such investment advisor; provided that no Affiliate of Holdings,
the Company or any other Loan Party shall be an Eligible Assignee.
"Eligible Cranes and Lifting Equipment" shall mean each of the Cranes and
Lifting Equipment that (i) is owned solely by Company or a Permitted Subsidiary
and with respect to which Company or a Permitted Subsidiary has good, valid and
marketable title, (ii) unless in transit, is located on property of a customer
of Company or a Permitted Subsidiary, or is stored on property that is either
owned or leased by Company or a Permitted Subsidiary (provided that; with
respect to Cranes and Lifting Equipment stored on property leased by Company or
a Permitted Subsidiary, Company or a Permitted Subsidiary, if requested by
Administrative Agent, shall have delivered in favor of Administrative Agent a
Collateral Access Agreement from the landlord of such leased property); (iii) is
subject to a valid, enforceable and perfected first priority Lien in favor of
Collateral Agent (provided that, notwithstanding the provisions of this clause
(iii) or Schedule 1.1(i), with respect to any item included in Cranes and
Lifting Equipment acquired after the Effective Date that is subject to a
certificate of title, so long as the documentation necessary to reflect the
appropriate transfer of title and recordation of a Lien in favor of Collateral
Agent in any such item has been filed in the appropriate filing office, such
item shall be included in the definition of Eligible Cranes and Lifting
Equipment for a period of up to 90 days pending final action by such filing
office with respect for such filings; provided further that, the Orderly
Liquidation Value of such item during any such period shall be deemed
15
to be 75% of their purchase price (net of transportation costs and taxes); (iv)
is located in the United States, the United States Virgin Islands, Canada or a
Caribbean jurisdiction; (v) is not obsolete; (vi) unless otherwise undergoing
ordinary maintenance, is used or is available for use, rent or lease in the
business of Company and its Permitted Subsidiaries, and is in a condition
suitable for such use, rent or lease; (vii) conforms to the warranties contained
in this definition and to the Collateral Warranties; and (viii) Administrative
Agent has not determined in its reasonable judgment to be ineligible; provided
that, for purpose of determining ineligibility pursuant to this clause (viii)
with respect to Cranes and Lifting Equipment included in Category 1 (as set
forth in Schedule 1.1(vii)), Crawler Cranes and Conventional Truck Cranes,
Administrative Agent shall make its determination on the basis of the criteria
set forth in clauses (i) - (vii) of this definition and, with respect to any
such determination regarding any single item with a value of $500,000 or more or
any group of items of a value of $3,000,000 or more during any Fiscal Year, no
determination of ineligibility shall be effective until 10 days prior written
notice has been given by Administrative Agent to Company with respect to the
ineligibility of such items.
"Eligible Excavation Equipment" shall mean each item of Excavation
Equipment that (i) is owned solely by Company or a Permitted Subsidiary and with
respect to which Company or a Permitted Subsidiary has good, valid and
marketable title, (ii) unless in transit, is located on property of a customer
of Company or a Permitted Subsidiary, or is stored on property that is either
owned or leased by Company or a Permitted Subsidiary (provided that, with
respect to Excavation Equipment stored on property leased by Company or a
Permitted Subsidiary, Company or a Permitted Subsidiary, if requested by
Administrative Agent, shall have delivered in favor of Administrative Agent a
Collateral Access Agreement from the landlord of such leased property); (iii) is
subject to a valid, enforceable and perfected first priority Lien in favor of
Collateral Agent (provided that, notwithstanding the provisions of this clause
(iii) or Schedule 1.1(i), with respect to any item included in Excavation
Equipment acquired after the Effective Date that is subject to a certificate of
title, so long as the documentation necessary to reflect the appropriate
transfer of title and recordation of a Lien in favor of Collateral Agent in any
such item has been filed in the appropriate filing office, such item shall be
included in the definition of Eligible Excavation Equipment for a period of up
to 90 days pending final action by such filing office with respect for such
filings; provided further that, the Orderly Liquidation Value of such item
during any such period shall be deemed to be 75% of their purchase price (net of
transportation costs and taxes); (iv) is located in the United States, the
United States Virgin Islands, Canada or a Caribbean jurisdiction; (v) is not
obsolete; (vi) unless otherwise undergoing ordinary maintenance, is used or is
available for use, rent or lease in the business of Company and its Permitted
Subsidiaries, and is in a condition suitable for such use, rent or lease; (vii)
conforms to the warranties contained in this definition and to the Collateral
Warranties; and (viii) Administrative Agent has not determined in its reasonable
judgment to be ineligible; provided that, for purpose of determining
ineligibility pursuant to this clause (viii) with respect to Excavation
Equipment any such determination regarding any single item with a value of
$250,000 or more or any group of items of a value of $2,000,000 or more during
any Fiscal Year, no determination of ineligibility shall be effective until 10
days prior written notice has been given by Administrative Agent to Company with
respect to the ineligibility of such items.
"Eligible Parts and Supplies Inventory" shall mean each item included in
the Parts and Supplies Inventory that (i) is owned solely by Company or a
Permitted Subsidiary and with
16
respect to which Company or a Permitted Subsidiary has good, valid and
marketable title; (ii) is stored on property that is either owned or leased by
Company or a Permitted Subsidiary (provided that; with respect to Parts and
Supplies Inventory stored on property leased by Company or a Permitted
Subsidiary, Company or such Permitted Subsidiary, at the request of
Administrative Agent, shall have delivered in favor of the Agent a Collateral
Access Agreement from the landlord of such leased property); (iii) is subject to
a valid, enforceable and perfected first priority Lien in favor of Collateral
Agent; (iv) is located in the United States, the United States Virgin Islands,
Canada or a Caribbean jurisdiction; (v) is not obsolete; (vi) otherwise conforms
to the warranties contained in this definition and to the Collateral Warranties;
(vii) is subject to record keeping, valuation methodologies, and process and
reporting controls reasonably acceptable to Administrative Agent; and (viii)
Administrative Agent has not determined, in its reasonable judgment, to be
ineligible.
"Eligible Trucks and Trailers" shall mean each of the Trucks and Trailers
that (i) is owned solely by Company or a Permitted Subsidiary and with respect
to which Company or a Permitted Subsidiary has good, valid and marketable title;
(ii) unless in transit or undergoing ordinary maintenance, is stored on property
that is either owned or leased by Company or a Permitted Subsidiary when not
rented to an account debtor pursuant to an equipment lease (provided that, with
respect to Trucks and Trailers stored on property leased by Company or a
Permitted Subsidiary, Company or such Permitted Subsidiary, at the request of
Administrative Agent, shall have delivered in favor of Administrative Agent a
Collateral Access Agreement from the landlord of such leased property); (iii) is
subject to a valid, enforceable and perfected first priority Lien in favor of
Collateral Agent; (iv) is located in the United States, the United States Virgin
Islands, Canada or a Caribbean jurisdiction; (v) is not obsolete; (vi) unless
otherwise undergoing ordinary maintenance, is used or available for use and in a
condition available for use in the ordinary course of business in connection
with Company's or a Permitted Subsidiary's equipment rental and sales
activities; (vii) otherwise conforms to the warranties contained in this
definition and to the Collateral Warranties; and (viii) Administrative Agent has
not determined in its reasonable judgment to be ineligible.
"Employee Benefit Plan" means any "employee benefit plan" as defined in
Section 3(3) of ERISA which is or was maintained or contributed to by Holdings,
any of its Subsidiaries or any of their respective ERISA Affiliates.
"Environmental Claim" means any investigation, notice, notice of violation,
claim, action, suit, proceeding, demand, abatement order or other order or
directive (conditional or otherwise), by any governmental authority or any other
Person, arising (i) pursuant to or in connection with any actual or alleged
violation of any Environmental Law, (ii) in connection with any Hazardous
Materials or any actual or alleged Hazardous Materials Activity, or (iii) in
connection with any actual or alleged damage, injury, threat or harm to health,
safety, natural resources or the environment.
"Environmental Laws" means any and all current or future statutes,
ordinances, orders, rules, regulations, judgments, Governmental Authorizations,
or any other requirements of governmental authorities relating to (i)
environmental matters, including those relating to any Hazardous Materials
Activity, (ii) the generation, use, storage, transportation or disposal of
Hazardous Materials, or (iii) occupational safety and health, industrial
hygiene, land use or the
17
protection of human, plant or animal health or welfare from environmental
hazards (including Hazardous Materials), in any manner applicable to Holdings or
any of its Subsidiaries or any Facility, including the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. (S) 9601 et
seq.), the Hazardous Materials Transportation Act (49 U.S.C. (S) 1801 et seq.
the Resource Conservation and Recovery Act (42 U.S.C. (S) 6901 et seq.), the
Federal Water Pollution Control Act (33 U.S.C. (S) 1251 et seq.), the Clean Air
Act (42 U.S.C. (S) 7401 et seq.), the Toxic Substances Control Act (15 U.S.C.
(S) 2601 et seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7
U.S.C. (S)136 et seq.), the Occupational Safety and Health Act (29 U.S.C. (S)
651 et seq.), the Oil Pollution Act (33 U.S.C. (S) 2701 et seq.) and the
Emergency Planning and Community Right-to-Know Act (42 U.S.C. (S) 11001 et
seq.), each as amended or supplemented, any analogous present or future state or
local statutes or laws, and any regulations promulgated pursuant to any of the
foregoing.
"Equipment Year" shall mean, with respect to any determination made
pursuant to Schedule 1.1(vii), the number of calendar years since the year of
manufacture of each item of Rental Equipment (with the year of manufacture
representing year 0).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor thereto, and the regulations
promulgated and rulings issued thereunder.
"ERISA Affiliate" means, as applied to any Person, (i) any corporation
which is a member of a controlled group of corporations within the meaning of
Section 414(b) of the Internal Revenue Code of which that Person is a member;
(ii) any trade or business (whether or not incorporated) which is a member of a
group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii)
any member of an affiliated service group within the meaning of Section 414(m)
or (o) of the Internal Revenue Code of which that Person, any corporation
described in clause (i) above or any trade or business described in clause (ii)
above is a member. Any former ERISA Affiliate of Holdings or any of its
Subsidiaries shall continue to be considered an ERISA Affiliate of Holdings or
such Subsidiary within the meaning of this definition with respect to the period
such entity was an ERISA Affiliate of Holdings or such Subsidiary and with
respect to liabilities arising after such period for which Holdings or such
Subsidiary could be liable under the Internal Revenue Code or ERISA.
"ERISA Event" means (i) a "reportable event" within the meaning of Section
4043 of ERISA and the regulations issued thereunder with respect to any Pension
Plan (excluding those for which the provision for 30-day notice to the PBGC has
been waived by regulation); (ii) the failure to meet the minimum funding
standard of Section 412 of the Internal Revenue Code with respect to any Pension
Plan (whether or not waived in accordance with Section 412(d) of the Internal
Revenue Code) or the failure to make by its due date a required installment
under Section 412(m) of the Internal Revenue Code with respect to any Pension
Plan or the failure to make any required contribution to a Multiemployer Plan;
(iii) the provision by the administrator of any Pension Plan pursuant to Section
4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 404l(c) of ERISA; (iv) the withdrawal by
Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates
from any Pension Plan with two or more contributing sponsors or the termination
of any such Pension Plan
18
resulting in liability pursuant to Section 4063 or 4064 of ERISA; (v) the
institution by the PBGC of proceedings to terminate any Pension Plan, or the
occurrence of any event or condition which might constitute grounds under ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan; (vi) the imposition of liability on Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates pursuant to Section
4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of
ERISA; (vii) the withdrawal of Holdings, any of its Subsidiaries or any of their
respective ERISA Affiliates in a complete or partial withdrawal (within the
meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there
is any potential liability therefor, or the receipt by Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated
under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act or
omission which could give rise to the imposition on Holdings or any of its
Subsidiaries of fines, penalties, taxes or related charges under Chapter 43 of
the Internal Revenue Code or under Section 409, Section 502(c), (i) or (1), or
Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the
assertion of a material claim (other than routine claims for benefits) against
any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof,
or against Holdings or any of its Subsidiaries in connection with any Employee
Benefit Plan; (x) receipt from the Internal Revenue Service of notice of the
failure of any Pension Plan (or any other Employee Benefit Plan intended to be
qualified under Section 401(a) of the Internal Revenue Code) to qualify under
Section 401(a) of the Internal Revenue Code, or the failure of any trust forming
part of any Pension Plan to qualify for exemption from taxation under Section
501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien pursuant
to Section 401(a)(29) or 412(n) of the Internal Revenue Code or pursuant to
ERISA with respect to any Pension Plan.
"Eurodollar Rate Loans" means Loans bearing interest at rates determined by
reference to the Adjusted Eurodollar Rate as provided in subsection 2.2A.
"Event of Default" means each of the events set forth in Section 8.
"Excavation Equipment" shall mean each item of equipment that is owned by
the Company or its Permitted Subsidiaries that constitutes excavation equipment
including, without limitation, any of the following: excavators, backhoe,
hydraulic hammers, tractors, loaders, scrapers, graders, compactors, rollers and
soil stabilizers and sweepers, but in any event does not include equipment that
would otherwise constitute Cranes and Lifting Equipment or Trucks and Trailers.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor statute.
"Exchange Rate" means, on any date when an amount expressed in a currency
other than Dollars is to be determined with respect to any Letter of Credit, the
nominal rate of exchange of the applicable Issuing Lender in the New York
foreign exchange market for the purchase by such Issuing Lender (by cable
transfer) of such currency in exchange for Dollars at 12:00 noon (New York time)
one Business Day prior to such date, expressed as a number of units of such
currency per one Dollar.
19
"Excluded Subsidiaries" means, collectively, all Subsidiaries in which the
fair market value (as reasonably determined and certified by senior management
of Company) of such Subsidiaries' assets do not in the aggregate exceed
$15,000,000; provided, that no Subsidiary shall be an Excluded Subsidiary if it
acquires assets with a fair market value in excess of $2,000,000 in the
aggregate or incurs Indebtedness or Contingent Obligations in excess of
$2,000,000 in the aggregate.
"Existing Credit Agreement" has the meaning assigned to that term in the
Recitals to this Agreement.
"Existing Defaults and Incipient Defaults" has the meaning assigned to that
term in the Recitals to this Agreement.
"Existing Investors" means certain existing shareholders, management
officers and employees of Company and other investors identified in Schedule
1.1(iii) annexed hereto as Existing Investors.
"Existing Lenders" has the meaning assigned to that term in the Recitals to
this Agreement and includes the Existing Revolving Loan Lenders and the Existing
Term Loan Lenders.
"Existing Letters of Credit" has the meaning assigned to that term in
subsection 3.1.
"Existing Loan" means the aggregate of the Existing Revolving Loans and the
Existing Term Loans.
"Existing Mortgages" means any mortgage, deed of trust or deed delivered
pursuant to the Existing Credit Agreement including any amendments,
modifications, restatements or assignments thereof.
"Existing Obligations" has the meaning assigned to that term in the
Recitals to this Agreement.
"Existing Revolving Loan Lenders" means those Lenders listed as "Revolving
Loan Lenders" on Schedule 2.1.
"Existing Revolving Loans" means, with respect to any Existing Revolving
Loan Lender, the Revolving Loans under, and as defined in, the Existing Credit
Agreement held by such Existing Revolving Loan Lender immediately prior to the
Effective Date and which Revolving Loans remain outstanding immediately after
the Effective Date.
"Existing Term Loan Lenders" means those Lenders that made Term Loans to
the Company under the Existing Credit Agreement.
"Existing Term Loans" means the Term Loans made by the Existing Term Loan
Lenders under the Existing Credit Agreement, and which Term Loans exist
immediately prior to the Effective Date and which shall remain outstanding
immediately after the Effective Date.
20
"Facilities" means any and all real property (including all buildings,
fixtures or other improvements located thereon) now, hereafter or heretofore
owned, leased, operated or used by Holdings or any of its Subsidiaries or any of
their respective predecessors or Affiliates.
"Federal Funds Effective Rate" means, 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 Administrative Agent from three Federal funds brokers
of recognized standing selected by Administrative Agent.
"Financial Plan" has the meaning assigned to that term in subsection
6.1(xv).
"First Supplemental Agreement" means collectively (i) the Supplemental
Indenture, dated as of June 30, 1999, among Holdings the Company and State
Street Bank and Trust Company as trustee and (ii) the Supplemental Indenture,
dated as June 30, 1999 among the Company and State Street Bank and Trust
Company.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Holdings and its Subsidiaries ending
on the December 31 of each calendar year. For purposes of this Agreement, any
particular Fiscal Year shall be designated by reference to the calendar year in
which such Fiscal Year ends.
"Fleet" has the meaning assigned to that term in the introduction to this
Agreement.
"Fleet Lockboxes" means the four lockboxes established with Fleet as set
forth on Schedule 7.12.
"Fleet Main Account" means that main concentration account for the
Company's cash management system which is account #9415845022 maintained at
Fleet National Bank in Hartford, Connecticut.
"Fleet Regional Disbursement Accounts" means the zero-balance accounts
established by the Company with Fleet and set forth on Schedule 7.12, which
accounts are funded from the Fleet Main Account as checks are presented to
Fleet.
"Flood Hazard Property" means a Mortgaged Property located in an area
designated by the Federal Emergency Management Agency as having special flood or
mud slide hazards.
"Foreign Cash Equivalents" means certificates of deposit or bankers
acceptances of any bank organized under the laws of Canada or a Caribbean
jurisdiction or any country that is a member of the European Economic Community
whose short-term commercial paper rating from S&P is at least A-l or the
equivalent thereof or from ▇▇▇▇▇'▇ is at least P-l or the equivalent thereof, in
each case with maturities of not more than one year from the date of
acquisition.
21
"Funding and Payment Office" means (i) the office of Administrative Agent
and Swing Line Lender located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ or
(ii) such other office of Administrative Agent and Swing Line Lender as may from
time to time hereafter be designated as such in a written notice delivered by
Administrative Agent and Swing Line Lender to Company and each Lender.
"Funding Date" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application thereof set
forth in subsections 1.2 and 1.4, generally accepted accounting principles set
forth in opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, in each case as the same are applicable to the
circumstances as of the date of determination.
"General Partner" means ACR Management LLC, a Delaware limited liability
company, the sole general partner of Company, or any permitted successor
thereto.
"Governmental Authorization" means any permit, license, authorization,
plan, directive, consent order or consent decree of or from any federal, state
or local governmental authority, agency or court.
"GSCP" has the meaning assigned to that term in the introduction to this
Agreement.
"Guaranties" means the Holdings Guaranty and the Subsidiary Guaranty.
"Hazardous Materials" means (i) any chemical, material or substance at any
time defined in any statute or regulation as or included in the definition in
any statute or regulation of "hazardous substances", "hazardous wastes",
"hazardous materials", "extremely hazardous waste", "acutely hazardous waste",
"radioactive waste", "biohazardous waste", "pollutant", "toxic pollutant",
"contaminant", "restricted hazardous waste", "infectious waste", "toxic
substances", or any other term or expression intended to define, list or
classify substances by reason of properties harmful to health, safety or the
indoor or outdoor environment (including harmful properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive
toxicity, "TCLP toxicity" or "EP toxicity" or words of similar meaning and
regulatory effect under any applicable Environmental Laws); (ii) any oil,
petroleum, petroleum fraction or petroleum derived substance; (iii) any drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources;
(iv) any flammable substances or explosives; (v) any radioactive materials; (vi)
any asbestos-containing materials; (vii) urea formaldehyde foam insulation;
(viii) polychlorinated biphenyls, including any oil or dielectric fluid
containing polychlorinated biphenyls; (ix) pesticides; and (x) any other
chemical, material or substance which could pose a hazard to the health and
safety of the owners, occupants or any Persons in the vicinity of any Facility
or to the indoor or outdoor environment.
"Hazardous Materials Activity" means any past, present or future activity,
event or occurrence involving any Hazardous Materials, including the use,
manufacture, possession,
22
storage, holding, migration, Release, threatened Release, discharge, placement,
generation, transportation, processing, treatment, abatement, removal,
remediation, disposal, disposition or handling of any Hazardous Materials, and
any corrective action or response action with respect to any of the foregoing.
"Hedge Agreement" means an Interest Rate Agreement or a Currency Agreement
designed to hedge against fluctuations in interest rates or currency values.
"Holdings" has the meaning assigned to that term in the introduction to
this Agreement.
"Holdings Guaranty" means the Holdings Guaranty annexed hereto as Exhibit
XV, as such Holdings Guaranty may be amended, supplemented or otherwise modified
from time to time as permitted thereunder and hereunder.
"Indebtedness", as applied to any Person, means (i) all indebtedness for
borrowed money, (ii) that portion of obligations with respect to Capital Leases
that is properly classified as a liability on a balance sheet in conformity with
GAAP, (iii) notes payable and drafts accepted representing extensions of credit
whether or not representing obligations for borrowed money, (iv) any obligation
owed for all or any part of the deferred purchase price of property or services
(excluding any such obligations incurred under ERISA and any accrued expenses or
trade payables), (a) which obligation in accordance with GAAP would be shown as
a liability on the balance sheet of such Person or (b) which purchase price is
evidenced by a note or similar written instrument, and (v) all indebtedness
secured by any Lien on any property or asset owned or held by that Person
regardless of whether the indebtedness secured thereby shall have been assumed
by that Person or is nonrecourse to the credit of that Person. The amount of any
Indebtedness which is non-recourse to the obligor thereunder or to any other
obligor and for which recourse is limited to an identified asset or assets shall
be equal to the lesser of (1) the stated amount of such obligation and (2) the
fair market value of such asset or assets. Obligations under Interest Rate
Agreements and Currency Agreements constitute (X) in the case of Hedge
Agreements, Contingent Obligations, and (Y) in all other cases, Investments, and
in neither case constitute Indebtedness.
"Indemnitee" has the meaning assigned to that term in subsection 10.3.
"Independent Appraiser" means ▇▇▇▇▇▇▇ Appraisal Services or such other
appraisal firm selected by the Company and reasonably acceptable to the
Administrative Agent.
"Independent Public Accountant" means any of the five largest public
accounting firms in the United States selected by Holdings.
"Initial Value" shall mean, with respect to each item of Rental Equipment,
an amount equal to (y) with respect to each item of Rental Equipment in
existence as of the 1998 Closing Date, the appraised orderly liquidation value
(assuming liquidation within a 360-day period for tower cranes and within a 180-
day period for all other Rental Equipment) of each item of Rental Equipment
specified on Schedule 1.1(v) annexed hereto, and (z) with respect to each item
of Rental Equipment acquired subsequent to the 1998 Closing Date, an amount
(which amount shall not, in any event, exceed the purchase price thereof, net of
shipping costs and taxes) to be determined in accordance with the provisions of
Schedule 1.1(i).
23
"Intellectual Property" means all patents, trademarks, tradenames,
copyrights, technology, know-how and processes which are used in the conduct of
the business of Holdings and its Subsidiaries as currently conducted that are
material to the condition (financial or otherwise), business or operations of
Holdings and its Subsidiaries, taken as a whole.
"Intercreditor Agreement" means that certain Intercreditor Agreement
substantially in the form of Exhibit XII annexed hereto, as such Intercreditor
Agreement may be amended, supplemented or otherwise modified from time to time
as permitted thereunder and hereunder.
"Interest Payment Date" means (i) with respect to any Base Rate Loan, each
March 15, June 15, September 15 and December 15 of each year, commencing on the
first such date to occur after the Closing Date, and (ii) with respect to any
Eurodollar Rate Loan, the last day of each Interest Period applicable to such
Loan; provided that in the case of each Interest Period of longer than three
months, "Interest Payment Date" shall also include each date that is three
months, or an integral multiple thereof, after the commencement of such Interest
Period.
"Interest Period" has the meaning assigned to that term in subsection 2.2B.
"Interest Rate Agreement" means any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement or other similar agreement or
arrangement to which Holdings or any of its Subsidiaries is a party.
"Interest Rate Determination Date" means, with respect to any Interest
Period, the second Business Day prior to the first day of such Interest Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
to the date hereof and from time to time hereafter, and any successor statute,
and the regulations promulgated by the Internal Revenue Service thereunder.
"Inventory" means, with respect to any Person as of any date of
determination, all goods, merchandise and other personal property which are then
held by such Person for sale or lease, including raw materials and work in
process.
"Investment" means (i) any direct or indirect purchase or other acquisition
by Holdings or any of its Subsidiaries of, or of a beneficial interest in, any
Securities of any other Person (including any Subsidiary of Holdings), (ii) any
direct or indirect redemption, retirement, purchase or other acquisition for
value, by any Subsidiary of Holdings from any Person other than Holdings or any
of its Subsidiaries, of any equity Securities of such Subsidiary, (iii) any
direct or indirect loan, advance (other than advances to employees for moving,
entertainment and travel expenses, drawing accounts and similar expenditures in
the ordinary course of business) or capital contribution by Holdings or any of
its Subsidiaries to any other Person, including all indebtedness and accounts
receivable from that other Person that are not current assets or did not arise
from sales to that other Person in the ordinary course of business, or (iv)
Interest Rate Agreements or Currency Agreements not constituting Hedge
Agreements. The amount of any Investment shall be the original cost of such
Investment plus the cost of all additions thereto less any return in cash of
principal or capital thereon or any cash dividends or any other cash
distributions, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment.
24
"IP Collateral" means, collectively, the "Intellectual Property" as defined
in the Pledge and Security Agreement.
"Issuing Lender" means, with respect to any Letter of Credit, the Lender
which agrees or is otherwise obligated to issue such Letter of Credit,
determined as provided in subsection 3.1B(ii).
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; provided
that in no event shall any Subsidiary of any Person be considered to be a Joint
Venture to which such Person is a party.
"Landlord Consent and Estoppel" means, with respect to any Leasehold
Property, a letter, certificate or other instrument in writing from the lessor
under the related lease, reasonably satisfactory in form and substance to
Administrative Agent, pursuant to which such lessor substantially agrees, for
the benefit of Administrative Agent, (i) that without any further consent of
such lessor or any further action on the part of the Loan Party holding such
Leasehold Property, such Leasehold Property may be encumbered pursuant to a
Mortgage and may be assigned to the purchaser at a foreclosure sale or in a
transfer in lieu of such a sale (and to a subsequent third party assignee if
Administrative Agent, any Lender, or an Affiliate of either so acquires such
Leasehold Property), (ii) that such lessor shall not terminate such lease as a
result of a default by such Loan Party thereunder without first giving
Administrative Agent notice of such default and at least 60 days (or, if such
default cannot reasonably be cured by Administrative Agent within such period,
such longer period as may reasonably be required) to cure such default, (iii) to
the matters contained in a Collateral Access Agreement, and (iv) to such other
matters relating to such Leasehold Property as Administrative Agent may
reasonably request; provided, however, that Administrative Agent may determine
in its reasonable discretion that any one or more of the agreements set forth in
clauses (i) through (iv) are not required to be included in a Landlord Consent
and Estoppel with respect to a particular Leasehold Property.
"Lead Arranger" has the meaning assigned to that term in the introduction
to this Agreement.
"Leasehold Property" means any leasehold interest of any Loan Party as
lessee under any lease of real property, other than any such leasehold interest
designated from time to time by Administrative Agent in its reasonable
discretion as not being required to be included in the Collateral.
"Lender" and "Lenders" mean the persons identified as "Lenders" and listed
on the signature pages of this Agreement, together with their successors, and
permitted assigns pursuant to subsection 10.1, and the term "Lenders" shall
include Swing Line Lender unless the context otherwise requires; provided that
the term "Lenders", when used in the context of a particular Commitment, shall
mean Lenders having that Commitment.
"Letter of Credit" or "Letters of Credit" mean Commercial Letters of Credit
and Standby Letters of Credit issued or to be issued by Issuing Lenders for the
account of Company pursuant to subsection 3.1 (including, without limitation,
Existing Letters of Credit).
25
"Letter of Credit Usage" means, as at any date of determination, the sum of
(i) the maximum aggregate amount which is or at any time thereafter may become
available for drawing under all Letters of Credit then outstanding plus (ii) the
aggregate amount of all drawings under Letters of Credit honored by Issuing
Lenders and not theretofore reimbursed by Company (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to subsection
3.3B). For purposes of this definition, any amount described in clause (i) or
(ii) of the preceding sentence which is denominated in a currency other than
Dollars shall be valued based on the applicable Exchange Rate for such currency
as of the applicable date of determination.
"Leverage Ratio" means the ratio of (i) the outstanding principal amount,
as of the last day of the applicable Fiscal Quarter, of the Loans, the Second
Priority Term Loans and Capital Leases for the quarterly period ending on the
last day of any Fiscal Quarter to (ii) Consolidated Adjusted EBITDA for the
four-Fiscal Quarter period then ended, in each case as set forth in the most
recent Compliance Certificate delivered by Company to Administrative Agent
pursuant to clause (vi) of subsection 6.1.
"Lien" means any lien, mortgage, pledge, assignment, security interest,
charge or encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement to give
any security interest) and any option, trust or other preferential arrangement
having the practical effect of any of the foregoing.
"Loan" or "Loans" mean one or more of the Term Loans, Revolving Loans or
Swing Line Loans or any combination thereof.
"Loan Documents" means this Agreement, the Notes, the Letters of Credit
(and any applications for, or reimbursement agreements or other documents or
certificates executed by Company in favor of an Issuing Lender relating to, the
Letters of Credit), the Guaranties, Collateral Documents and the Acknowledgment
and Consent.
"Loan Party" means each of Holdings, General Partner, Company and any of
Holding's Subsidiaries from time to time executing a Loan Document, and "Loan
Parties" means all such Persons, collectively.
"Lockbox Account" means each postal box to which payments in respect of
Accounts or other payments owing to the Company, Holdings, or any of their
Subsidiaries are remitted.
"Lockbox Bank" means a financial institution or other Person at which a
Lockbox Account is maintained or which administers a Lockbox Account.
"Lockbox Account Agreement" means an agreement substantially similar to
Exhibit XXII hereto to which a Lockbox Account is subject and to which the
Company, the Collateral Agent, and a Lockbox Bank are party.
"Margin Stock" has the meaning assigned to that term in Regulation U of the
Board of Governors of the Federal Reserve System as in effect from time to time.
26
"Material Adverse Effect" means (i) a material adverse effect upon the
business, operations, properties, assets or condition (financial or otherwise)
of Holdings and its Subsidiaries, taken as a whole, or (ii) the impairment of
the ability of any Loan Party to perform, or of Administrative Agent, Collateral
Agent or Lenders to enforce, the Obligations, or (iii) any termination by a
party other than the Company of a Material Contract.
"Material Contract" means any contract or arrangement to which Holdings or
any of its Subsidiaries is a party (other than the Loan Documents) for which
breach, nonperformance, cancellation or failure to renew would reasonably be
expected to impact Consolidated Adjusted EBITDA by greater than 5% of
Consolidated Adjusted EBITDA for the four Fiscal Quarter period most recently
ended.
"Material Liquidation Event" means the occurrence of any of the following:
(i) an initial public offering or any private placement of at least $50,000,000
in equity interests of Holdings, the Company or any of its Subsidiaries, (ii)
the sale of all or substantially all of Holding's or Company's assets or equity
interests, or (iii) Holding's or the Company's merger or business combination
with or into any Person (other than a Subsidiary) in which Holdings or the
Company is not the surviving entity.
"Material Leasehold Property" means a Leasehold Property reasonably
determined by Administrative Agent to be of material value as Collateral or of
material importance to the operations of Holdings or any of its Subsidiaries;
provided, however, that no Leasehold Property with respect to which the
aggregate amount of all rents payable during any one Fiscal Year never exceeds
$1,000,000 shall be a "Material Leasehold Property".
"Material Real Property Asset" means a Real Property Asset reasonably
determined by Administrative Agent to be of material value as Collateral or of
material importance to the operations of Holdings or any of its Subsidiaries;
provided, "Material Real Property Assets" shall not include any individual Real
Property Asset that does not exceed $500,000 in fair market value; provided,
further that, Real Property Assets that do not constitute Material Real Property
Assets shall not exceed $6,000,000 in aggregate fair market value.
"Minimum Revolver Availability" means, as of any date of determination, an
amount equal to the excess of (a) the Adjusted Borrowing Base Amount as
reflected on the most recently delivered Borrowing Base Certificate over (b) the
Total Utilization of Commitments.
"Minimum Revolver Availability Amount" means, as of any date of
determination, the amount set forth in subsection 7.6D with respect to such
date.
"Mortgage" means (i) a security instrument (whether designated as a deed of
trust or a mortgage or by any similar title) executed and delivered by any Loan
Party, substantially in the form of Exhibit XVI annexed hereto or in such other
form as may be approved by Collateral Agent in its reasonable discretion, in
each case with such changes thereto as may be recommended by Collateral Agent's
local counsel based on local laws or customary local mortgage or deed of trust
practices, or (ii) at Collateral Agent's option, in the case of an Additional
Mortgaged Property, an amendment to an existing Mortgage, in form reasonably
satisfactory to Administrative Agent, adding such Additional Mortgaged Property
to the Real
27
Property Assets encumbered by such existing Mortgage, in either case as such
security instrument or amendment may be amended, supplemented or otherwise
modified from time to time.
"Mortgaged Property" means any property subject to an Existing Mortgage, an
Effective Date Mortgaged Property and/or an Additional Mortgaged Property.
"Multiemployer Plan" means any Employee Benefit Plan which is a
"Multiemployer plan" as defined in Section 3(37) of ERISA.
"NAIC" means the National Association of Insurance Commissioners.
"Net Asset Sale Proceeds" means, with respect to any Asset Sale, Cash
payments (including any Cash received by way of deferred payment pursuant to, or
by monetization of, a note receivable or otherwise, but only as and when so
received) received from such Asset Sale, net of any bona fide costs incurred in
connection with such Asset Sale, including (i) income taxes reasonably estimated
to be actually payable within two years of such Asset Sale as a result of any
gain recognized in connection with such Asset Sale and (ii) payment of the
outstanding principal amount of, premium or penalty, if any, and interest on any
Indebtedness (other than the Loans) that is secured by a Lien on the stock or
assets in question that is senior to the Lien of the Collateral Agent and that
is repaid as a result of such Asset Sale.
"Net Capital Expenditures" means, with respect to any period, (a) the
Consolidated Capital Expenditures made during such period minus (b) the net
proceeds from Asset Sales in the ordinary course of business made by Company or
any of its Subsidiaries during such period, provided, however, that,
notwithstanding the foregoing, for purposes of calculating the net proceeds
under this clause (b), Company may elect, upon written notice to the Agents, to
subtract from Consolidated Capital Expenditures the net proceeds from any Asset
Sale not in the ordinary course of business that is permitted hereunder solely
to the extent that the Revolving Loan Commitments are permanently reduced by, or
(with the consent of those Lenders as may be required hereunder) the Term Loans
are repaid in, an amount equal to the amount of such proceeds effective
immediately upon both (i) the delivery by the Company of its written
acknowledgment and authorization to the Agents in the form attached hereto as
Exhibit VIII and (ii) such reduction in the Revolving Loan Commitments or such
repayment of Term Loans.
"Net Capital Expenditures Proceeds" means the net proceeds of Assets Sales
as determined in accordance with clause (b) of the definition of "Net Capital
Expenditures".
"Net Insurance/Condemnation Proceeds" means any Cash payments or proceeds
received by Holdings or any of its Subsidiaries (i) under any casualty insurance
policy in respect of a covered loss thereunder or (ii) as a result of the taking
of any assets of Holdings or any of its Subsidiaries by any Person pursuant to
the power of eminent domain, condemnation or otherwise, or pursuant to a sale of
any such assets to a purchaser with such power under threat of such a taking, in
each case net of any actual and documented costs incurred by Holdings or any of
its Subsidiaries in connection with the adjustment or settlement of any claims
of Holdings or such Subsidiary in respect thereof.
28
"New Business" means any assets or business acquired by Company or any of
its Subsidiaries in a Permitted Acquisition.
"1998 Closing Date" means the date on which the initial Revolving Loans
were made under the Existing Credit Agreement, which date was July 22, 1998.
"1999 Closing Date" means the date on which the Existing Credit Agreement
was executed, which date was June 30, 1999.
"Non-Qualifying Acquisition" means an acquisition other than a Qualifying
Equipment Acquisition.
"Non-Qualifying Sale" means any sale of assets other than a Qualifying
Equipment Sale.
"Notes" means one or more of the Term Notes, Revolving Notes or Swing Line
Note or any combination thereof.
"Notice of Borrowing" means a notice substantially in the form of Exhibit I
annexed hereto delivered by Company to Administrative Agent pursuant to
subsection 2.1B with respect to a proposed borrowing.
"Notice of Conversion/Continuation" means a notice substantially in the
form of Exhibit II annexed hereto delivered by Company to Administrative Agent
pursuant to subsection 2.2D with respect to a proposed conversion or
continuation of the applicable basis for determining the interest rate with
respect to the Loans specified therein.
"Notice of Issuance of Letter of Credit" means a notice substantially in
the form of Exhibit III annexed hereto delivered by Company to Administrative
Agent pursuant to subsection 3.1B(i) with respect to the proposed issuance of a
Letter of Credit.
"Obligations" means all obligations of every nature of each Loan Party from
time to time owed to Agents, Lenders or their respective Affiliates or any of
them under the Loan Documents or any Hedge Agreement, whether for principal,
interest, reimbursement of amounts drawn under Letters of Credit, fees
(including the Success Fee), expenses, indemnification or otherwise.
"Officers' Certificate" means, with respect to any Person, a certificate
executed on behalf of such Person (x) if such Person is a partnership, by the
chairman of the board (if an officer) or chief executive officer, chief
operating officer, president or vice president or by the chief financial officer
of one of its partners and (y) if such Person is a corporation, on behalf of
such corporation by its chairman of the board (if an officer), chief executive
officer, chief operating officer or its president or one of its vice presidents
and, with respect to financial matters only, by its principal financial officer
or principal accounting officer or its treasurer; provided that every Officers'
Certificate with respect to the compliance with a condition precedent to the
making of any Loans hereunder shall include (i) a statement that the officer or
officers making or giving such Officers' Certificate have read such condition
and any definitions or other provisions contained in this Agreement relating
thereto, (ii) a statement that, in the
29
opinion of the signers, they have made or have caused to be made such
examination or investigation as is necessary to enable them to express an
informed opinion as to whether or not such condition has been complied with, and
(iii) a statement as to whether, in the opinion of the signers, such condition
has been complied with.
"Operating Lease" means, as applied to any Person, any lease (including
leases that may be terminated by the lessee at any time) of any property
(whether real, personal or mixed) that is not a Capital Lease other than any
such lease under which that Person is the lessor.
"Orderly Liquidation Value" shall mean, as of any date of determination and
with respect to each item of Rental Equipment:
(i) for items of Rental Equipment owned by the Company as of the 1998
Closing Date, an amount equal to the Initial Value from the 1998 Closing
Date through December 31, 1998 and thereafter an amount equal to (A) the
Orderly Liquidation Value of such item of Rental Equipment for the
preceding calendar year multiplied by (B) 1 minus Factor B specified in
Schedule 1.1(vii) corresponding to the current Equipment Year of such item
of Rental Equipment;
(ii) for items of Rental Equipment acquired by the Company after the
1998 Closing Date:
(a) during the calendar year in which such item of Rental
Equipment is acquired, the Initial Value of such item of Rental
Equipment; or
(b) in each subsequent calendar year, an amount equal to (A) the
Orderly Liquidation Value of such item of Rental Equipment for the
preceding calendar year multiplied by (B) 1 minus either
(x) Factor A if such item of Rental Equipment is not
subject to determination of Initial Value by an Independent
Appraiser pursuant to the provisions of Schedule 1.1(i), or
(y) Factor B if such item of Rental Equipment is subject to
determination of Initial Value by an Independent Appraiser
pursuant to the provisions of Schedule 1.1 (i).
(each of Factor A and Factor B as specified in Schedule 1.1(vii) and
corresponding to the current Equipment Year of such item of Rental
Equipment);
provided that, the Orderly Liquidation Value of each item of Rental Equipment
classified as a crawler crane, conventional truck crane, tower crane or crane
attachment (such classification to be made by an Independent Appraiser) shall be
the Initial Value of such Rental Equipment until the date of delivery of the
next Supplemental Appraisal, after which the Orderly Liquidation Value of such
Rental Equipment shall be as specified in the most recent Supplemental
Appraisal; provided further that the Actual Appraisal shall be used to determine
the Orderly Liquidation Values of each item of Rental Equipment classified as a
crawler crane, conventional truck crane, tower crane or crane attachment in
January 2003. Notwithstanding the foregoing, equipment
30
which was owned by the Company in 1998 and not appraised (including the
equipment listed on Schedule 1.1(ix)) may be included in Orderly Liquidation
Value for purposes of this Agreement if such equipment is appraised in
accordance with the procedures set forth in Schedule 1.1(i).
"Other Investors" means certain persons identified on Schedule 1.1(iii)
annexed hereto as Other Investors.
"Partnership Agreements" means limited partnership agreements of Holdings
and Company.
"Partnership Loan Party" means any Loan Party which is a general or limited
partnership.
"Parts and Supplies Inventory" shall mean as of any date of determination
Company's or a Permitted Subsidiary's inventory (valued at the lower of book
value and market value) consisting of parts and supplies (excluding fluids and
de minimus amounts of other parts and supplies) being used or reasonably
expected to be used in the immediately succeeding twelve months in connection
with the Rental Equipment.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Pension Plan" means any Employee Benefit Plan, other than a Multiemployer
Plan, which is subject to Section 412 of the Internal Revenue Code or Section
302 of ERISA.
"Permitted Acquisitions" means (i) Qualifying Equipment Acquisitions, (ii)
Non-Qualifying Acquisitions having aggregate purchase prices not in excess of
$1,000,000 per year, and (iii) Non-Qualifying Acquisitions having aggregate
purchase prices in excess of $1,000,000 but less than $5,000,000 per year, with
the prior written consent of the Administrative Agent and the Syndication Agent.
"Permitted Asset Sales" means (i) Qualifying Equipment Sales, (ii) Non-
Qualifying Sales having a sales price, in any transaction or series of related
transactions, not in excess of $1,000,000 per transaction, and (iii) Non-
Qualifying Sales having a sales price, in any transaction or series of related
transactions, in excess of $1,000,000 but less than $10,000,000, with the prior
written consent of the Administrative Agent and the Syndication Agent.
"Permitted Domestic Subsidiary" means (w) the Subsidiaries set forth at
Schedule 1.1(vi), (x) any wholly-owned Subsidiaries organized under the laws of
the United States or any state thereof which has been organized solely for the
purpose of facilitating a Permitted Acquisition or which was acquired pursuant
to a Permitted Acquisition, provided that the assets acquired pursuant to such
Permitted Acquisition are promptly contributed or otherwise transferred to the
Company, (y) any Transitory Subsidiary and (z) any wholly-owned Subsidiary of
Company which is organized under the laws of the United States or any state
thereof, provided however that, all such Subsidiaries under this clause (z), in
the aggregate, shall not have been capitalized by Company in Cash or other
property, including equipment, in excess of 3% of the book value of the total
assets of Company and its Subsidiaries and provided further that, substantially
all the assets thereof shall be subject to a first priority Lien (other than
those Liens permitted pursuant to Section 7.2(A)(i), (viii) and (ix)) in favor
of the Collateral Agent, and the
31
Collateral Agent shall be reasonably satisfied that such Liens are substantially
similar in respect of priority, enforceability and realization to those granted
to Collateral Agent by the Company.
"Permitted Earn-Out Agreements" means any agreement by the Company to pay
the seller or sellers of any entity or assets acquired in accordance with the
provisions of subsection 7.7(viii) at any time following the consummation of
such acquisition by reference to the financial performance of the entity or
assets acquired; provided that the Earnout Value under a Permitted Earn-Out
Agreement shall not exceed 15% of the acquisition consideration under the
related Permitted Acquisition.
"Permitted Encumbrances" means the following types of Liens (excluding any
such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Internal
Revenue Code or by ERISA, any such Lien relating to or imposed in connection
with any Environmental Claim, and any such Lien expressly prohibited by any
applicable terms of any of the Collateral Documents):
(i) Liens for taxes, assessments or governmental charges or claims
the payment of which is not, at the time, required by subsection 6.3;
(ii) statutory Liens of landlords, statutory Liens of banks and
rights of set-off, statutory Liens of carriers, warehousemen, mechanics,
repairmen, workmen and materialmen, and other Liens imposed by law, in each
case incurred in the ordinary course of business (a) for amounts not yet
overdue or (b) for amounts that are overdue and that (in the case of any
such amounts overdue for a period in excess of 5 days) are being contested
in good faith by appropriate proceedings, so long as (1) such reserves or
other appropriate provisions, if any, as shall be required by GAAP shall
have been made for any such contested amounts, and (2) in the case of a
Lien with respect to any portion of the Collateral, such contest
proceedings conclusively operate to stay the sale of any portion of the
Collateral on account of such Lien;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money), so long as no foreclosure, sale or similar
proceedings have been commenced with respect to any portion of the
Collateral on account thereof;
(iv) any attachment or judgment Lien not constituting an Event of
Default under subsection 8.8;
(v) leases or subleases granted to third parties in accordance with
any applicable terms of the Collateral Documents and not interfering in any
material respect with the ordinary conduct of the business of Holdings or
any of its Subsidiaries or resulting in a material diminution in the value
of any Collateral as security for the Obligations;
(vi) easements, rights-of-way, restrictions, encroachments, and
other defects or irregularities in title, in each case which do not and
will not interfere in any material
32
respect with the ordinary conduct of the business of Holdings or any of its
Subsidiaries or result in a material diminution in the value of any
Collateral as security for the Obligations;
(vii) any (a) interest or title of a lessor or sublessor under any
lease (b) restriction or encumbrance that the interest or title of such
lessor or sublessor may be subject to, or (c) subordination of the interest
of the lessee or sublessee under such lease to any restriction or
encumbrance referred to in the preceding clause (b), so long as the holder
of such restriction or encumbrance agrees to recognize the rights of such
lessee or sublessee under such lease;
(viii) Liens arising from filing UCC financing statements relating
solely to operating leases or Capital Leases permitted by this Agreement;
(ix) Liens in favor of customs and revenue authorities arising as
a matter of law to secure payment of customs duties in connection with the
importation of goods;
(x) any zoning or similar law or right reserved to or vested in
any governmental office or agency to control or regulate the use of any
real property;
(xi) Liens securing obligations (other than obligations
representing Indebtedness for borrowed money) under operating, reciprocal
easement or similar agreements entered into in the ordinary course of
business of Company and its Subsidiaries;
(xii) licenses of patents, trademarks and other intellectual
property rights granted by Holdings or any of its Subsidiaries in the
ordinary course of business and not interfering in any material respect
with the ordinary conduct of the business of Holdings or such Subsidiary;
and
(xiii) Liens existing on the Effective Date and listed on Schedule
7.2.
"Permitted Foreign Subsidiary" means any wholly-owned Subsidiary of Company
which is organized under the laws of Canada or a Caribbean jurisdiction;
provided however that, all such Subsidiaries, in the aggregate, shall have not
been capitalized by Company in Cash or other property, including equipment, in
excess of 3% of the book value of the total assets of Company and its
Subsidiaries; provided further that, substantially all the assets thereof shall
be subject to a first priority Lien (other than those Liens permitted pursuant
to Section 7.2(A)(i), (viii) and (ix)) in favor of the Collateral Agent, and
Collateral Agent shall be reasonably satisfied that such Liens are substantially
similar in respect of priority, enforceability and realization to those granted
to Collateral Agent by the Company.
"Permitted Sale Leaseback Transactions" means one or more sale leaseback
transaction so long as (i) the aggregate sales price of the assets sold in all
such transactions in effect as of any date of determination does not exceed
$7,500,000, (ii) such assets are sold in such transaction for Cash in an amount
not less than their Orderly Liquidation Value (if such assets have an Orderly
Liquidation Value) or the fair market value of such assets (if such assets
33
do not have an Orderly Liquidation Value), and (iii) within 90 days following
the sale of such assets, such assets are leased back by the Company.
"Permitted Seller Note" means a promissory note containing subordination
provisions in substantially the form of, or no less favorable to Lenders (in the
reasonable judgment of Administrative Agent) than the subordination provisions
contained in, Exhibit XVIII annexed hereto, representing any Indebtedness of
Holdings or Company incurred in connection with any Permitted Acquisition
payable to the seller in connection therewith, as such note may be amended,
supplemented or otherwise modified from time to time to the extent permitted
under subsection 7.14B; provided that, no Permitted Seller Note shall (i) be
guarantied by any Subsidiary of Company or secured by any property of Holdings,
Company or any of its Subsidiaries, (ii) pay cash interest prior to the date of
the final scheduled installment of principal of the Loans, (iii) contain a
cross-default provision, (iv) contain any covenants, or (v) provide for any
prepayment or repayment of all or any portion of the principal thereof prior to
the date of the final scheduled installment of principal of the Loans.
"Permitted Subsidiaries" means Permitted Domestic Subsidiaries and
Permitted Foreign Subsidiaries.
"Permitted Tax Distribution" means, for so long as Holdings or Company is
treated as a partnership or disregarded as an entity separate from its owners
for federal income tax purposes, distributions to the partners of Holdings or
Company in an amount with respect to any period after June 30, 1998, not to
exceed the amount of distributions, whether paid or accrued, necessary to permit
Holdings' and Company's partners to pay federal and state income tax liabilities
arising from income of Holdings or Company and their respective Subsidiaries and
taxable to such partners, including the tax distributions contemplated by
Holdings' and Company's respective partnership agreements attributable to such
partners solely as a result of Holdings or Company (and any intermediate entity
through which any such partner owns its interest in Holdings or Company) being a
partnership or similar pass-through entity for federal income tax purposes.
"Person" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
"Pledge and Security Agreement" means the Pledge and Security Agreement
annexed hereto as Exhibit XIII, as such Pledge and Security Agreement may be
amended, supplemented or otherwise modified from time to time as permitted
thereunder and hereunder.
"Pledged Collateral" means, collectively, the "Pledged Collateral" as
defined in the Pledge and Security Agreement.
"▇▇▇▇▇▇▇▇" means FTI/▇▇▇▇▇▇▇▇ & ▇▇▇▇▇.
34
"Potential Event of Default" means a condition or event that, after notice
or lapse of time or both, would constitute an Event of Default.
"Preferred Units" means Series A preferred interests of Holdings with an
initial liquidation value of $22,500,000.
"Proposed Insurance Reinvestment Proceeds" has the meaning assigned to that
term in subsection 6.4C.
"Pro Rata Share" means (i) with respect to all payments, computations and
other matters relating to the Term Loan Commitment or the Term Loan of any
Lender, the percentage obtained by dividing (x) the Term Loan Exposure of that
Lender by (y) the aggregate Term Loan Exposure of all Lenders, (ii) with respect
to all payments, computations and other matters relating to the Revolving Loan
Commitment or the Revolving Loans of any Lender or any Letters of Credit issued
or participations therein purchased by any Lender or any participations in any
Swing Line Loans purchased by any Lender, the percentage obtained by dividing
(x) the Revolving Loan Exposure of that Lender by (y) the aggregate Revolving
Loan Exposure of all Lenders, and (iii) for all other purposes with respect to
each Lender, the percentage obtained by dividing (x) the sum of the Term Loan
Exposure of that Lender plus the Revolving Loan Exposure of that Lender by (y)
the sum of the aggregate Term Loan Exposure of all Lenders plus the aggregate
Revolving Loan Exposure of all Lenders, in any such case as the applicable
percentage may be adjusted by assignments permitted pursuant to subsection 10.1.
The Pro Rata Share of each Lender as of the Effective Date for purposes of each
of clauses (i), (ii) and (iii) of the preceding sentence is set forth opposite
the name of that Lender in Schedule 2.1 annexed hereto.
"PTO" means the United States Patent and Trademark Office or any successor
or substitute office in which filings are necessary in order to create or
perfect Liens on any IP Collateral.
"Qualified Preferred Units" means payment-in-kind preferred units of
Holdings that have no cash-call or cash payment provision exercisable during the
term of the Loans or the Term Loan.
"Qualifying Equipment Acquisition" means an acquisition of equipment in any
transaction or series of related transactions having a purchase price not in
excess of $3,000,000 in the ordinary course of business.
"Qualifying Equipment Sale" means a sale of equipment in any transaction or
series of transactions having a sales price not in excess of $3,000,000 in the
ordinary course of business.
"Reaffirmation Agreements" means Reaffirmation Agreements, in form and
substance reasonably satisfactory to the Administrative Agent, dated as of the
date hereof, executed and delivered by the Company, Holdings, ▇▇▇▇▇▇▇ ▇▇▇▇▇
International, L.P., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Sales and Leasing, L.P., ▇▇▇▇▇▇▇ ▇▇▇▇▇
Capital Corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Holdings Capital Corporation and ACR
Management LLC.
35
"Reaffirmation of Intercreditor Agreement" means the Reaffirmation of
Intercreditor Agreement, in form and substance reasonably satisfactory to the
Administrative Agents, dated as of the date hereof, executed and delivered by
the Company, Holdings, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, L.P., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Sales
and Leasing, L.P., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Holdings
Capital Corporation, ACR Management LLC, Fleet, as administrative agent under
the Second Priority Term Loan Credit Agreement, and Fleet as Administrative
Agent hereunder.
"Real Property Asset" means, at any time of determination, any interest
then owned by any Loan Party in any real property.
"Recapitalization Agreement" means that certain Amended and Restated
Recapitalization Agreement dated as of July 21, 1998, by and among Company,
Bain/ACR, L.L.C. and ACR Management L.L.C., in the form delivered to Agents and
Lenders prior to their execution of the Existing Credit Agreement and as such
agreement may be amended from time to time thereafter to the extent permitted
under subsection 7.14A.
"Recapitalization Transactions" means the series of transactions described
in Schedule 1.1(iv) annexed hereto.
"Recorded Leasehold Interest" means a Leasehold Property with respect to
which a Record Document (as hereinafter defined) has been recorded in all places
necessary or desirable, in Administrative Agent's reasonable judgment, to give
constructive notice of such Leasehold Property to third-party purchasers and
encumbrancers of the affected real property. For purposes of this definition,
the term "Record Document" means, with respect to any Leasehold Property, (a)
the lease evidencing such Leasehold Property or a memorandum thereof, executed
and acknowledged by the owner of the affected real property, as lessor, or (b)
if such Leasehold Property was acquired or subleased from the holder of a
Recorded Leasehold Interest, the applicable assignment or sublease document,
executed and acknowledged by such holder, in each case in form sufficient to
give such constructive notice upon recordation and otherwise in form reasonably
satisfactory to Administrative Agent.
"Reference Lenders" means Fleet, and not more than two other Lenders
selected by Fleet with the consent of Company.
"Refunded Swing Line Loans" has the meaning assigned to that term in
subsection 2.1A(iv).
"Regional Disbursement Account" means those zero-balance accounts described
as a regional disbursement account set forth on Schedule 7.12.
"Register" has the meaning assigned to that term in subsection 2.1D.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Reimbursement Date" has the meaning assigned to that term in subsection
3.3B.
36
"Related Agreements" means, collectively, the Recapitalization Agreement,
the Securityholders Agreement, the Bain Advisory Services Agreement, the
Partnership Agreements, the Senior Notes, the Senior Note Indenture, the Senior
Discount Debentures, the Senior Discount Indenture and the Third Priority Term
Loan Documents.
"Related Party" means with respect to any Person, (i) any stockholder,
officer, employee or partner of such Person and (a) trusts for the benefit of
such Person or the spouses, issue, parents or other relatives of such Person,
(b) entities controlling or controlled by such Person and (c) in the event of
death of any such individual Person, heirs or testamentary legatees of such
Person and, in addition, with respect to Bain, shall include the Bain Investors
or (ii) any Affiliate thereof.
"Release" means any release, spill, emission, leaking, pumping, pouring,
injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching
or migration of Hazardous Materials into the indoor or outdoor environment
(including the abandonment or disposal of any barrels, containers or other
closed receptacles containing any Hazardous Materials), including the migration
of any Hazardous Materials through the air, soil, surface water or groundwater.
"Rental Equipment" shall mean (i) all of the Cranes and Lifting Equipment,
(ii) all of the Trucks and Trailers, and (iii) all of the Excavation Equipment,
that in each case, are held for resale or held for lease (or, with respect to
Trucks and Trailers, used in connection with equipment rental and sales
activities) by Company or a Permitted Subsidiary.
"Requisite Class Lenders" means, at any time of determination (i) for the
Class of Lenders having Term Loan Exposure, Lenders having or holding at least a
majority of the sum of the aggregate Term Loan Exposure of all Lenders, and (ii)
for the Class of Lenders having Revolving Loan Exposure, Lenders having or
holding at least a majority of the sum of the aggregate Revolving Loan Exposure
of all Lenders.
"Requisite Lenders" means Lenders having or holding at least a majority of
the aggregate Revolving Loan Exposure and Term Loan Exposure of all Lenders.
"Responsible Officer" means any of the chairman of the board (if an
officer), the president, any senior or executive vice president, the general
counsel, its principal financial officer or principal accounting officer, the
secretary or the treasurer of Holdings or, as applicable, any Subsidiary of
Holdings.
"Restricted Junior Payment" means (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock, partnership
interest or equivalent equity interests of Holdings or Company now or hereafter
outstanding, except a dividend payable solely in shares of that class of stock,
partnership interest or equivalent equity interests to the holders of that
class, (ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, by Holdings or the Company,
respectively, direct or indirect, of any shares of any class of stock of
Holdings or Company now or hereafter outstanding, (iii) any payment made to
retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of stock of Holdings or Company now
or hereafter outstanding, and (iv) any cash payment or prepayment of principal
of, premium, if any, or interest on, or
37
redemption, purchase, retirement, defeasance (including in-substance or legal
defeasance), sinking fund or similar payment with respect to, any Subordinated
Indebtedness or the Senior Notes.
"Revolver Leverage Ratio" means the ratio of (i) the principal amount, as
of the last day of the applicable Fiscal Quarter, of the Loans and Capital
Leases outstanding for the quarterly period ending on the last day of any Fiscal
Quarter to (ii) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period
then ended, in each case as set forth in the most recent Compliance Certificate
delivered by Company to Administrative Agent pursuant to clause (vi) of
subsection 6.1.
"Revolving Loan Commitment" means the commitment of a Lender to make
Revolving Loans to Company pursuant to subsection 2.1A(iii), and "Revolving Loan
Commitments" means such commitments of all Lenders in the aggregate.
"Revolving Loan Commitment Termination Date" means the earlier of (i) July
22, 2004 or (ii) the date of termination in whole of the Revolving Loan
Commitments pursuant to subsection 2.4B or Section 8.
"Revolving Loan Exposure" means, with respect to any Lender as of any date
of determination (i) prior to the termination of the Revolving Loan Commitments,
that Lender's Revolving Loan Commitment and (ii) after the termination of the
Revolving Loan Commitments, the sum of (a) the aggregate outstanding principal
amount of the Revolving Loans of that Lender plus (b) in the event that Lender
is an Issuing Lender, the aggregate Letter of Credit Usage in respect of all
Letters of Credit issued by that Lender (in each case net of any participations
purchased by other Lenders in such Letters of Credit or any unreimbursed
drawings thereunder) plus (c) the aggregate amount of all participations
purchased by that Lender in any outstanding Letters of Credit or any
unreimbursed drawings under any Letters of Credit plus (d) in the case of Swing
Line Lender, the aggregate outstanding principal amount of all Swing Line Loans
(net of any participations therein purchased by other Lenders) plus (e) the
aggregate amount of all participations purchased by that Lender in any
outstanding Swing Line Loans.
"Revolving Loans" means (i) the Loans made by Lenders to Company pursuant
to subsection 2.1A(i) of the Existing Credit Agreement which remain outstanding
as of the Effective Date and (ii) any Loans made by Lenders to Company pursuant
to subsection 2.1A(iii) of this Agreement.
"Revolving Notes" means (i) the promissory notes of Company issued pursuant
to subsection 2.1E of this Agreement to evidence Revolving Loans and (ii) any
promissory notes issued by Company pursuant to the last sentence of subsection
10.1B(i) in connection with assignment of the Revolving Loan Commitments or
Revolving Loans of any Lenders, in each case in substantially in the form of
Exhibit IV annexed hereto, as they may be amended, supplemented or otherwise
modified from time to time.
38
"Second Priority Term Loans" means the second priority secured term loans
of Company outstanding pursuant to the Second Priority Term Loan Credit
Agreement in the original principal amount of $50,000,000.
"Second Priority Term Loan Credit Agreement" means that certain Term Loan
Credit Agreement dated July 22, 1998, by and among Company, Holdings, GSCP, as
Arranger and Syndication Agent and Fleet, as Administrative Agent and Collateral
Agent, as amended as of the Effective Date and as such Term Loan Credit
Agreement may be further amended, supplemented, refinanced, renewed, extended or
otherwise modified from time to time to the extent permitted under subsection
7.14C.
"Second Priority Term Loan Credit Agreement Amendment" means an Amendment
to the Second Priority Term Loan Credit Agreement, in form and substance
reasonably satisfactory to the Administrative Agent, dated as of the date
hereof, by and among Company, Holdings, GSCP, as Arranger and Syndication Agent
and Fleet, as Administrative Agent and Collateral Agent thereunder.
"Second Priority Term Loan Credit Documents" means the Second Priority Term
Loan Credit Agreement, the promissory notes issued thereunder and each other
document executed in connection with the Second Priority Term Loan Credit
Agreement.
"Secured Parties" has the meaning assigned to that term in the
Intercreditor Agreement.
"Securities" means any stock, shares, partnership interests, membership
interests, voting trust certificates, certificates of interest or participation
in any profit-sharing agreement or arrangement, options, warrants, bonds,
debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly
known as "securities" or any certificates of interest, shares or participations
in temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, and any successor statute.
"Securityholders Agreement" means that certain securityholders agreement
among the General Partner, Holdings and various equityholders of such entities
as amended, modified and supplemented from time to time to the extent permitted
under subsection 7.14.
"Senior Discount Debentures" means at least $25,000,000 in initial
aggregate principal amount of Senior Discount Debentures of Holdings and ▇▇▇▇▇▇▇
▇▇▇▇▇ Holdings Capital Corporation issued pursuant to the Senior Discount
Indenture, as amended by the First Supplemental Amendment thereto and as further
amended from time to time as permitted pursuant to subsection 7.14.
"Senior Discount Indenture" means the indenture pursuant to which the
Senior Discount Debentures are issued, as amended by the First Supplemental
Amendment thereto and as such indenture may be further amended from time to time
to the extent permitted under subsection 7.14.
39
"Senior Note Indenture" means the indenture pursuant to which the Senior
Notes are issued, as amended by the First Supplemental Amendment thereto and as
such indenture may be further amended from time to time to the extent permitted
under subsection 7.14.
"Senior Notes" means the $155,000,000 in aggregate principal amount of
Senior Notes due July, 2008 of Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation
issued pursuant to the Senior Note Indenture, including any notes issued in
exchange for such notes as contemplated under the Senior Note Indenture, as
amended by the First Supplemental Amendment thereto and as further amended from
time to time as permitted pursuant to subsection 7.14.
"Series B Preferred Units" means Series B preferred interests of Holdings.
"Shareholder Subordinated Note" shall mean an unsecured junior subordinated
note issued by Holdings (and not guaranteed or supported in any way by Company
or any of its Subsidiaries) containing subordination provisions substantially in
the form of, or no less favorable to Lenders (in the reasonable judgment of
Administrative Agent) than the subordination provisions contained in Exhibit
XVIII annexed hereto, as such note may be amended, supplemented or otherwise
modified from time to time to the extent permitted under subsection 7.14.
"Solvent" means, with respect to any Person, that as of the date of
determination both (a) (i) the then fair saleable value of the property (sold as
a going concern) of such Person is (y) greater than the total amount of
liabilities (including contingent liabilities) of such Person and (z) not less
than the amount that will be required to pay the probable liabilities on such
Person's then existing debts as they become absolute and matured considering all
financing alternatives and potential asset sales reasonably available to such
Person; (ii) such Person's capital is not unreasonably small in relation to its
business or any contemplated or undertaken transaction; and (iii) such Person
does not intend to incur, or believe (nor should it reasonably believe) that it
will incur, debts beyond its ability to pay such debts as they become due; and
(b) such Person is "solvent" within the meaning given that term and similar
terms under applicable laws relating to fraudulent transfers and conveyances.
For purposes of this definition, the amount of any contingent liability at any
time shall be computed as the amount that, in light of all of the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
"Standby Letter of Credit" means any standby letter of credit or similar
instrument issued for the purpose of supporting (i) Indebtedness of Holdings or
any of its Subsidiaries in respect of industrial revenue or development bonds or
financings, (ii) workers' compensation liabilities of Holdings or any of its
Subsidiaries, (iii) the obligations of third party insurers of Holdings or any
of its Subsidiaries arising by virtue of the laws of any jurisdiction requiring
third party insurers, (iv) obligations with respect to Capital Leases or
Operating Leases of Holdings or any of its Subsidiaries, (v) performance,
payment, deposit or surety obligations of Holdings or any of its Subsidiaries,
in any case if required by law or governmental rule or regulation or in
accordance with custom and practice in the industry, and (vi) such other
obligations of Company and its Subsidiaries as are reasonably acceptable to
Administrative Agent and the Issuing Lender and otherwise permitted to exist
pursuant to the terms of this Agreement; provided that Standby Letters of Credit
may not be issued for the purpose of supporting (a) trade payables or (b) any
40
Indebtedness constituting "antecedent debt" (as that term is used in Section 547
of the Bankruptcy Code).
"Subordinated Indebtedness" means (i) any Shareholder Subordinated Notes
and (ii) any other Indebtedness of Holdings, or any of its Subsidiaries,
subordinated in right of payment to the Obligations pursuant to documentation
containing maturities, amortization schedules, covenants, defaults, remedies,
subordination provisions and other material terms in form and substance
reasonably satisfactory to Administrative Agent and Requisite Lenders; provided
that Subordinated Indebtedness shall not include intercompany indebtedness owed
to Company.
"Subsidiary" with respect to any Person means any corporation, partnership
or limited liability company, the financial statements of which are consolidated
with the financial statements of such Person for GAAP financial reporting
purposes. The term "Subsidiary", when used herein without reference to any
particular Person, shall mean a Subsidiary of the Company.
"Subsidiary Guarantor" means any Subsidiary of Holdings, other than
Company, that is a party to the Subsidiary Guaranty as of the Effective Date,
and any other Subsidiary of Holdings that executes and delivers a counterpart
thereof from time to time thereafter pursuant to subsection 6.8.
"Subsidiary Guaranty" means the Subsidiary Guaranty executed and delivered
by all Subsidiaries of Holdings (other than Company) on the Closing Date and to
be executed and delivered by additional Subsidiaries of Holdings from time to
time thereafter in accordance with subsection 6.8, substantially in the form of
Exhibit XIV annexed hereto, as such Subsidiary Guaranty may hereafter be
amended, supplemented or otherwise modified from time to time as permitted
thereunder and hereunder.
"Success Fee" has the meaning ascribed to that term in subsection 2.3C.
"Supplemental Appraisal" shall mean a desktop appraisal conducted each
calendar year (commencing calendar year 2003) to determine the Orderly
Liquidation Value of the Company's Rental Equipment classified as crawler
cranes, conventional truck cranes, tower cranes and crane attachments (such
classification to be made by the Independent Appraiser) prepared by the
Independent Appraiser.
"Swing Line Lender" means Fleet, or any Person serving as a successor
Administrative Agent hereunder, in its capacity as Swing Line Lender hereunder.
"Swing Line Loan Commitment" means the commitment of Swing Line Lender to
make Swing Line Loans to Company pursuant to subsection 2.1A(iv).
"Swing Line Loans" means the Loans made by Swing Line Lender to Company
pursuant to subsection 2.1A(iv) of this Agreement.
"Swing Line Note" means (i) any promissory note of Company issued to the
Swing Line Lender pursuant to Section 2.1E - on the Effective Date and (ii) any
promissory note issued by Company to any successor Agent and Swing Line Lender
pursuant to the last sentence of
41
subsection 9.5B, substantially in the form of Exhibit IV-D annexed hereto, as it
may be amended, supplemented or otherwise modified from time to time.
"Syndication Agent" has the meaning assigned to that term in the
introduction to this Agreement.
"Tax" or "Taxes" mean any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever called, by
whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or
assessed; provided that "Tax on the overall net income" of a Person shall be
construed as a reference to a tax imposed by the jurisdiction in which that
Person is organized or in which that Person's principal office (and/or, in the
case of a Lender, its lending office) is located or in which that Person
(and/or, in the case of a Lender, its lending office) is deemed to be doing
business on all or part of the net income, profits or gains (whether worldwide,
or only insofar as such income, profits or gains are considered to arise in or
to relate to a particular jurisdiction, or otherwise) of that Person (and/or, in
the case of a Lender, its lending office).
"Term Loan" means a Loan made by a Lender to Company as a term loan
pursuant to the Existing Credit Agreement, and "Term Loans" means any such Loan
or Loans, collectively.
"Term Loan Commitment" means the commitment of a Lender to make a Term Loan
to Company under the Existing Credit Agreement, and "Term Loan Commitments"
means such commitments of all Lenders in the aggregate.
"Term Loan Exposure" means the outstanding principal amount of the Term
Loans of each Existing Term Loan Lender.
"Term Notes" means (i) the promissory notes of Company issued pursuant to
subsection 2.1E of the Existing Credit Agreement on the 1999 Closing Date to
evidence the Term Loans and (ii) any promissory notes issued by Company pursuant
to the last sentence of subsection 10.1B(i) in connection with assignments of
the Term Loan Commitments or Term Loans of any Lenders, in each case
substantially in the form of Exhibit IV-A Annexed hereto, as they may be
amended, supplemented or otherwise modified from time to time.
"Third Priority Note Purchase Agreement" means that certain Note Purchase
Agreement, in form and substance reasonably satisfactory to the Administrative
Agent and the Requisite Lenders, dated as of June 4, 2002 by and between the
Company and Bain/ACR, L.L.C., as such Note Purchase Agreement may be amended,
extended or otherwise modified from time to time to the extent permitted under
subsection 7.14D.
"Third Priority Term Loan" means the third priority secured term loan of
Company in the original principal amount of $8,000,000 made pursuant to the
Third Priority Term Loan Note which loan shall be in form and substance
reasonably satisfactory to the Administrative Agent and the Requisite Lenders.
"Third Priority Term Loan Documents" means the Third Priority Note Purchase
Agreement, the Third Priority Term Loan Note, the Bain Intercreditor Agreement,
the Subsidiary Guaranty dated as of June 4, 2002 between the Subsidiaries party
thereto and Bain/ACR, L.L.C.,
42
the Holdings Guaranty dated as of June 4, 2002 between Holdings, ACR Management,
LLC and Bain/ACR, L.L.C., and each other document set forth on Schedule 1.1(x)
attached hereto.
"Third Priority Term Loan Note" means that certain promissory note, in form
and substance reasonably satisfactory to the Administrative Agent and the
Requisite Lenders, dated June 4, 2002 issued by the Company to Bain/ACR, L.L.C.,
as such Third Priority Term Loan Note may be amended, extended or otherwise
modified from time to time to the extent permitted under subsection 7.14D.
"Title Company" means, collectively, First American Title Insurance Company
and/or one or more other title insurance companies reasonably satisfactory to
Syndication Agent and Administrative Agent.
"Total Leverage Ratio" means the ratio of (i) the outstanding principal
amount, as of the last day of the applicable Fiscal Quarter, of Consolidated
Total Debt for the quarterly period ending on the last day of any Fiscal Quarter
to (ii) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period then
ended, in each case as set forth in the most recent Compliance Certificate
delivered by Company to Administrative Agent pursuant to clause (vi) of
subsection 6.1; provided, however, that with respect to any period during which
a Permitted Acquisition occurs, for purposes of calculating the Total Leverage
Ratio in the definition of Applicable Total Leverage Ratio, the provisions of
subsection 7.6G with respect to any cost savings that would otherwise be given
effect in calculating Consolidated Adjusted EBITDA as a result of such
provisions shall not be given effect until such cost savings are actually
realized.
"Total Utilization of Commitments" means, as at any date of determination,
the sum of (i) the aggregate principal amount of all outstanding Term Loans,
(ii) the aggregate principal amount of all outstanding Revolving Loans (other
than Revolving Loans made for the purpose of repaying any Refunded Swing Line
Loans or reimbursing the applicable Issuing Lender for any amount drawn under
any Letter of Credit but not yet so applied), (iii) the aggregate principal
amount of all outstanding Swing Line Loans, and (iv) the Letter of Credit Usage.
"Total Utilization of Revolving Loan Commitments" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all outstanding
Revolving Loans (other than Revolving Loans made for the purpose of repaying any
Refunded Swing Line Loans or reimbursing the applicable Issuing Lender for any
amount drawn under any Letter of Credit but not yet so applied) plus (ii) the
aggregate principal amount of all outstanding Swing Line Loans plus (iii) the
Letter of Credit Usage.
"Transitory Subsidiary" means a Subsidiary of Holdings organized solely for
the purpose of facilitating a Permitted Acquisition or which was acquired
pursuant to a Permitted Acquisition and which immediately after the consummation
of such Permitted Acquisition transfers, sells or otherwise disposes of all
assets acquired pursuant to such Permitted Acquisition to Company or a Permitted
Domestic Subsidiary.
"Trucks and Trailers" shall mean each item of equipment that is owned by
the Company or its Permitted Subsidiaries that constitutes any of the following:
a forklift, a truck, a trailer or any other miscellaneous equipment, other than
Cranes and Lifting Equipment and
43
Excavation Equipment (such miscellaneous equipment used by the Company or its
Permitted Subsidiaries in the provision of crane rental and lifting and/or
excavation services and subject to the approval of the Administrative Agent,
such approval not to be unreasonably withheld, prior to inclusion in the
definition of Eligible Trucks and Trailers); including, without limitation,
those items identified on Schedule 2.1(d)(B) to the Pledge and Security
Agreement.
"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any applicable jurisdiction, including any revision
thereto.
"wholly-owned" means, with respect to any Subsidiary, that all of the
equity Securities (other than any such security in the nature of a director's
qualifying share) of such Subsidiary are owned by another Person or one or more
wholly-owned Subsidiaries of such other Person; provided, any Subsidiary that is
a limited partnership shall be deemed to be wholly-owned by another Person so
long as such other Person and its wholly-owned Subsidiaries owns all of the
limited partnership interests of such Subsidiary.
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under
------------------------------------------------------------------------
Agreement.
---------
Except as otherwise expressly provided in this Agreement, all accounting
terms not otherwise defined herein shall have the meanings assigned to them in
conformity with GAAP. Financial statements and other information required to be
delivered by Company to Lenders pursuant to clauses (i), (ii), (iii) and (xv) of
subsection 6.1 shall be prepared in accordance with GAAP as in effect at the
time of such preparation (and delivered together with the reconciliation
statements provided for in subsection 6.1 (vii)). Calculations in connection
with the definitions, covenants and other provisions of this Agreement shall
utilize accounting principles and policies in conformity with those used to
prepare the December 31, 2001 financial statements referred to in subsection
5.3. Notwithstanding the foregoing, except as otherwise specifically provided
herein, all computations determining compliance with subsection 2.4 and Section
7, and the calculation of the Total Leverage Ratio, the Leverage Ratio and
Revolving Leverage Ratio for all purposes set forth herein, in each case,
including the definitions used therein, shall utilize accounting principles and
policies in effect at the time of the preparation of, and in conformity with
those used to prepare, the December 31, 2001 financial statements of Holdings
and its Subsidiaries delivered to the Lenders, but shall not give effect to
purchase accounting adjustments required or permitted by FAS 141 and its
interpretations (including non-cash write-ups and non-cash charges relating to
inventory, fixed assets and in-process research and development, in each case
arising in connection with any Permitted Acquisitions) and FAS 142 and its
interpretations (including non-cash charges relating to intangibles and goodwill
arising in connection with any Permitted Acquisitions).
1.3 Other Definitional Provisions and Rules of Construction.
-------------------------------------------------------
A. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference.
B. References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided.
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C. The use herein of the word "include" or "including", when following
any general statement, term or matter, shall not be construed to limit such
statement, term or matter to the specific items or matters set forth immediately
following such word or to similar items or matters, whether or not nonlimiting
language (such as "without limitation" or "but not limited to" or words of
similar import) is used with reference thereto, but rather shall be deemed to
refer to all other items or matters that fall within the broadest possible scope
of such general statement, term or matter.
D. Each reference to a "Fiscal Quarter period" of a specified number of
Fiscal Quarters shall be a reference to a period of consecutive Fiscal Quarters
of such number.
1.4 Changes in GAAP.
---------------
In the event that a change in GAAP or other accounting principles and
policies after the date hereof affects in any material respect the calculations
of the compliance by Holdings and its Subsidiaries with the covenants contained
herein, Lenders, Company and Holdings agree to negotiate in good faith to amend
the affected covenants (and related definitions) to compensate for the effect of
such changes so that the restrictions, limitations and performance standards
effectively imposed by such covenants, as so amended, are substantially
identical to the restrictions, limitations and performance standards imposed by
such covenants as in effect on the date hereof; provided, that if Requisite
Lenders, Company and Holdings fail to reach agreement with respect to such
amendment within a reasonable period of time following the date of effectiveness
of any such change, calculation of compliance by Holdings and its Subsidiaries
with the covenants contained herein shall be determined in accordance with GAAP
as in effect immediately prior to such change.
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments; Making of Loans; the Register; Notes.
-------------------------------------------------
A. Commitments. Subject to the terms and conditions of this Agreement and
in reliance upon the representations and warranties of Holdings and Company
herein set forth, each Lender hereby severally agrees to make the Loans
described in subsections 2.1A(iii) and Swing Line Lender hereby agrees to make
the Loans described in subsection 2.1A(iv).
(i) Existing Revolving Loans and Existing Term Loans. Company
acknowledges and confirms that each Existing Lender holds either Existing
Revolving Loans or Existing Term Loans in the respective principal amounts
outstanding as of the Effective Date set forth opposite its name,
respectively, on Schedule 2.1 annexed hereto. Company hereby represents,
warrants, agrees, covenants and (1) reaffirms that it is not aware of any
defense, set off, claim or counterclaim against any Agent or Lender in
regard to its Obligations in respect of such Existing Loans and (2)
reaffirms its obligation to pay such Existing Loans in accordance with the
terms and conditions of this Agreement and the other Loan Documents. Based
on the foregoing, Company and each Lender agree that any amounts owed
(whether or not presently due and payable, and including all interest and
fees accrued to the Effective Date (which shall be payable on
45
the next Interest Payment Date with respect to the Existing Revolving Loans
and the Existing Term Loans to which such interest relates)) by Company to
Existing Lenders, in respect of the Existing Loans, shall, as of the
Effective Date, continue to be maintained as an Existing Revolving Loan or
an Existing Term Loan, as applicable.
(ii) Term Loans. The amount of each Lender's Term Loans is set forth
opposite its name on Schedule 2.1 annexed hereto and the aggregate amount
of all Term Loans is $243,125,000.
(iii) Revolving Loans. Each Lender severally agrees, subject to the
limitations set forth below with respect to the maximum amount of Revolving
Loans permitted to be outstanding from time to time, to lend to Company
from time to time during the period from the Effective Date to but
excluding the Revolving Loan Commitment Termination Date an aggregate
amount (including its Pro Rata Share of Existing Revolving Loans
outstanding) not exceeding its Pro Rata Share of the aggregate amount of
the Revolving Loan Commitments to be used for the purposes identified in
subsection 2.5. The amount of each Lender's Revolving Loan Commitment as of
the Effective Date is set forth opposite its name on Schedule 2.1 annexed
hereto and the aggregate amount of the Revolving Loan Commitments as of the
Effective Date is $300,000,000; provided that, the Revolving Loan
Commitments of Lenders shall be adjusted to give effect to any assignments
of the Revolving Loan Commitments pursuant to subsection 10.1B; and
provided, further, that the amount of the Revolving Loan Commitments shall
be reduced from time to time by the amount of any reductions thereto made
pursuant to subsections 2.4B(ii). Each Lender's Revolving Loan Commitment
shall expire on the Revolving Loan Commitment Termination Date and all
Revolving Loans and all other amounts owed hereunder with respect to the
Revolving Loans and the Revolving Loan Commitments shall be paid in full no
later than the Revolving Loan Commitment Termination Date. Amounts borrowed
under this subsection 2.1A(iii) may be repaid and reborrowed to but
excluding the Revolving Loan Commitment Termination Date.
Anything contained in this Agreement to the contrary notwithstanding
in no event shall the Total Utilization of Commitments at any time exceed
the Adjusted Borrowing Base Amount then in effect and in no event shall the
Total Utilization of Revolving Loan Commitments exceed the aggregate amount
of all Revolving Loan Commitments then in effect.
(iv) Swing Line Loans. Swing Line Lender hereby agrees, subject to
the limitations set forth below with respect to the maximum amount of Swing
Line Loans permitted to be outstanding from time to time, to make a portion
of the Revolving Loan Commitments available to Company from time to time
during the period from the Effective Date to but excluding the Revolving
Loan Commitment Termination Date by making Swing Line Loans to Company in
an aggregate amount not exceeding the amount of the Swing Line Loan
Commitment to be used for the purposes identified in subsection 2.5,
notwithstanding the fact that such Swing Line Loans, when aggregated with
Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro
Rata Share of the Letter of Credit Usage then in effect, may exceed Swing
Line Lender's Revolving Loan Commitment. The original amount of the Swing
Line Loan Commitment is
46
$20,000,000; provided that any reduction of the Revolving Loan Commitments
made pursuant to subsection 2.4B(ii) which reduces the aggregate Revolving
Loan Commitments to an amount less than the then current amount of the
Swing Line Loan Commitment shall result in an automatic corresponding
reduction of the Swing Line Loan Commitment to the amount of the Revolving
Loan Commitments, as so reduced, without any further action on the part of
Company, Administrative Agent or Swing Line Lender. The Swing Line Loan
Commitment shall expire on the Revolving Loan Commitment Termination Date
and all Swing Line Loans and all other amounts owed hereunder with respect
to the Swing Line Loans shall be paid in full no later than that date.
Amounts borrowed under this subsection 2.1A(iv) may be repaid and
reborrowed to but excluding the Revolving Loan Commitment Termination Date.
With respect to any Swing Line Loans which have not been voluntarily
prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may,
at any time in its sole and absolute discretion, deliver to Administrative
Agent (with a copy to Company), no later than 11:00 A.M. (New York City
time) on the first Business Day in advance of the proposed Funding Date, a
notice (which shall be deemed to be a Notice of Borrowing given by Company)
requesting Lenders to make Revolving Loans that are Base Rate Loans on such
Funding Date in an amount equal to the amount of such Swing Line Loans (the
"Refunded Swing Line Loans") outstanding on the date such notice is given
which Swing Line Lender requests Lenders to prepay. Anything contained in
this Agreement to the contrary notwithstanding, (i) the proceeds of such
Revolving Loans made by Lenders other than Swing Line Lender shall be
immediately delivered by Administrative Agent to Swing Line Lender (and not
to Company) and applied to repay a corresponding portion of the Refunded
Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing
Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be
deemed to be paid with the proceeds of a Revolving Loan made by Swing Line
Lender, and such portion of the Swing Line Loans deemed to be so paid shall
no longer be outstanding as Swing Line Loans and shall no longer be due
under the Swing Line Note, if any, of Swing Line Lender but shall instead
constitute part of Swing Line Lender's outstanding Revolving Loans and
shall be due under the Revolving Note, if any, of Swing Line Lender.
Company hereby authorizes Administrative Agent and Swing Line Lender to
charge Company's accounts with Administrative Agent and Swing Line Lender
(up to the amount available in each such account) in order to immediately
pay Swing Line Lender the amount of the Refunded Swing Line Loans to the
extent the proceeds of such Revolving Loans made by Lenders, including the
Revolving Loan deemed to be made by Swing Line Lender, are not sufficient
to repay in full the Refunded Swing Line Loans. If any portion of any such
amount paid (or deemed to be paid) to Swing Line Lender should be recovered
by or on behalf of Company from Swing Line Lender in bankruptcy, by
assignment for the benefit of creditors or otherwise, the loss of the
amount so recovered shall be ratably shared among all Lenders in the manner
contemplated by subsection 10.5.
If for any reason (a) Revolving Loans are not made upon the request of
Swing Line Lender as provided in the immediately preceding paragraph in an
amount sufficient to repay any amounts owed to Swing Line Lender in respect
of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments
are terminated at a time when any
47
Swing Line Loans are outstanding, each Lender shall be deemed to, and
hereby agrees to, have purchased a participation in such outstanding Swing
Line Loans in an amount equal to its Pro Rata Share (calculated, in the
case of the foregoing clause (b), immediately prior to such termination of
the Revolving Loan Commitments) of the unpaid amount of such Swing Line
Loans together with accrued interest thereon. Upon one Business Day's
notice from Swing Line Lender, each Lender shall deliver to Swing Line
Lender an amount equal to its respective participation in same day funds at
the Funding and Payment Office. In the event any Lender fails to make
available to Swing Line Lender the amount of such Lender's participation as
provided in this paragraph, Swing Line Lender shall be entitled to recover
such amount on demand from such Lender together with interest thereon at
the rate customarily used by Swing Line Lender for the correction of errors
among banks for three Business Days and thereafter at the Base Rate. In the
event Swing Line Lender receives a payment of any amount in which other
Lenders have purchased participations as provided in this paragraph, Swing
Line Lender shall promptly distribute to each such other Lender its Pro
Rata Share of such payment.
Anything contained herein to the contrary notwithstanding, each
Lender's obligation to make Revolving Loans for the purpose of repaying any
Refunded Swing Line Loans pursuant to the second preceding paragraph and
each Lender's obligation to purchase a participation in any unpaid Swing
Line Loans pursuant to the immediately preceding paragraph shall be
absolute and unconditional and shall not be affected by any circumstance,
including (a) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against Swing Line Lender, Company or any other
Person for any reason whatsoever; (b) the occurrence or continuation of an
Event of Default or a Potential Event of Default; (c) any adverse change in
the business, operations, properties, assets, condition (financial or
otherwise) or prospects of Holdings or any of its Subsidiaries; (d) any
breach of this Agreement or any other Loan Document by any party thereto;
or (e) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing; provided that such obligations of each
Lender are subject to the condition that (X) Swing Line Lender believed in
good faith that all conditions under subsection 4.2 (in the case of Loans
made on the Effective Date) and 4.3 (in the case of all Loans) to the
making of the applicable Refunded Swing Line Loans or other unpaid Swing
Line Loans, as the case may be, were satisfied at the time such Refunded
Swing Line Loans or unpaid Swing Line Loans were made or (Y) the
satisfaction of any such condition not satisfied had been waived in
accordance with subsection 10.6 prior to or at the time such Refunded Swing
Line Loans or other unpaid Swing Line Loans were made.
(v) [Intentionally left blank]
B. Borrowing Mechanics. Revolving Loans made on any Funding Date (other
than Revolving Loans made pursuant to a request by Swing Line Lender pursuant to
subsection 2.1A(iv) for the purpose of repaying any Refunded Swing Line Loans or
Revolving Loans made pursuant to subsection 3.3B for the purpose of reimbursing
any Issuing Lender for the amount of a drawing under a Letter of Credit issued
by it) shall be in an aggregate minimum amount of $500,000 and integral
multiples of $100,000 in excess of that amount; provided that Revolving Loans
made on any Funding Date as Eurodollar Rate Loans with a particular Interest
Period shall
48
be in an aggregate minimum amount of $1,000,000 and integral multiples of
$50,000 in excess of that amount. Swing Line Loans made on any Funding Date
shall be in an aggregate minimum amount of $100,000 and integral multiples of
$100,000 in excess of that amount. Whenever Company desires that Lenders make
Revolving Loans it shall deliver to Administrative Agent a Notice of Borrowing
no later than 12:00 Noon (New York City time) at least three Business Days in
advance of the proposed Funding Date (in the case of a Eurodollar Rate Loan) or
at least one Business Day in advance of the proposed Funding Date (in the case
of a Base Rate Loan). Whenever Company desires that Swing Line Lender make a
Swing Line Loan, it shall deliver to Administrative Agent a Notice of Borrowing
no later than 12:00 Noon (New York City time) on the proposed Funding Date. The
Notice of Borrowing shall specify (i) the proposed Funding Date (which shall be
a Business Day), (ii) the amount and type of Loans requested, (iii) in the case
of Swing Line Loans, that such Loans shall be Base Rate Loans, (iv) in the case
of any Revolving Loans, whether such Loans shall be Base Rate Loans or
Eurodollar Rate Loans, (v) in the case of any Loans requested to be made as
Eurodollar Rate Loans, the initial Interest Period requested therefor and, (vi)
that, after giving effect to the Loans requested thereby, the Total Utilization
of Commitments will not exceed the Adjusted Borrowing Base Amount then in effect
and, in the case of Revolving Loans or Swing Line Loans, the Total Utilization
of Revolving Loan Commitments shall not exceed the aggregate amount of all
Revolving Loan Commitments then in effect. Revolving Loans may be continued as
or converted into Base Rate Loans and Eurodollar Rate Loans in the manner
provided in subsection 2.2D. In lieu of delivering the above-described Notice of
Borrowing, Company may give Administrative Agent telephonic notice by the
required time of any proposed borrowing under this subsection 2.1B; provided
that such notice shall be promptly confirmed in writing by delivery of a Notice
of Borrowing to Administrative Agent on or before the applicable Funding Date.
Neither Administrative Agent nor any Lender shall incur any liability to
Company in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on behalf of Company or
for otherwise acting in good faith under this subsection 2.1B, and upon funding
of Loans by Lenders in accordance with this Agreement pursuant to any such
telephonic notice Company shall have effected Loans hereunder.
Company shall notify Administrative Agent prior to the funding of any Loans
in the event that any of the matters to which Company is required to certify in
the applicable Notice of Borrowing is no longer true and correct as of the
applicable Funding Date, and the acceptance by Company of the proceeds of any
Loans shall constitute a re-certification by Company, as of the applicable
Funding Date, as to the matters to which Company is required to certify in the
applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice
of Borrowing for a Eurodollar Rate Loan (or telephonic notice in lieu thereof)
shall be irrevocable on and after the related Interest Rate Determination Date,
and Company shall be bound to make a borrowing in accordance therewith.
C. Disbursement of Funds. All Revolving Loans under this Agreement shall
be made by Lenders simultaneously and proportionately to their respective Pro
Rata Shares, it being understood that no Lender shall be responsible for any
default by any other Lender in that other
49
Lender's obligation to make a Loan requested hereunder nor shall the Commitment
of any Lender to make the particular type of Loan requested be increased or
decreased as a result of a default by any other Lender in that other Lender's
obligation to make a Loan requested hereunder. Promptly after receipt by
Administrative Agent of a Notice of Borrowing pursuant to subsection 2.1B (or
telephonic notice in lieu thereof), Administrative Agent shall notify each
Lender or Swing Line Lender, as the case may be, of the proposed borrowing. Each
Lender shall make the amount of its Loan available to Administrative Agent not
later than 1:00 P.M. (New York City time) on the applicable Funding Date, and
Swing Line Lender shall make the amount of its Swing Line Loan available to
Administrative Agent not later than 2:00 P.M. (New York City time) on the
applicable Funding Date, in each case in same day funds in Dollars, at the
Funding and Payment Office. Except as provided in subsection 2.1A(iv) or
subsection 3.3B with respect to Revolving Loans used to repay Refunded Swing
Line Loans or to reimburse any Issuing Lender for the amount of a drawing under
a Letter of Credit issued by it, upon satisfaction or waiver of the conditions
precedent specified in subsections 4.2 (in the case of Loans made on the
Effective Date) and 4.3 (in the case of all Loans), Administrative Agent shall
make the proceeds of such Loans available to Company on the applicable Funding
Date by causing an amount of same day funds in Dollars equal to the proceeds of
all such Loans received by Administrative Agent from Lenders or Swing Line
Lender, as the case may be, to be credited to the account of Company at the
Funding and Payment Office.
Unless Administrative Agent shall have been notified by any Lender prior to
the Funding Date for any Loans that such Lender does not intend to make
available to Administrative Agent the amount of such Lender's Loan requested on
such Funding Date, Administrative Agent may assume that such Lender has made
such amount available to Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall not be obligated to,
make available to Company a corresponding amount on such Funding Date. If such
corresponding amount is not in fact made available to Administrative Agent by
such Lender, Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest thereon,
for each day from such Funding Date until the date such amount is paid to
Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three Business Days and thereafter at the
Base Rate. If such Lender does not pay such corresponding amount forthwith upon
Administrative Agent's demand therefor, Administrative Agent shall promptly
notify Company and Company shall immediately pay such corresponding amount to
Administrative Agent together with interest thereon, for each day from such
Funding Date until the date such amount is paid to Administrative Agent, at the
rate payable under this Agreement for Base Rate Loans. Nothing in this
subsection 2.1C shall be deemed to relieve any Lender from its obligation to
fulfill its Commitments hereunder or to prejudice any rights that Company may
have against any Lender as a result of any default by such Lender hereunder.
D. The Register.
(i) Administrative Agent shall maintain, at its address referred to
in subsection 10.8, a register for the recordation of the names and
addresses of Lenders and the Commitments and Loans of each Lender from time
to time (the "Register"). The Register shall be available for inspection by
Company or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
50
(ii) Administrative Agent shall record in the Register the Term Loan
Commitment, the Term Loans, the Revolving Loan Commitment and the Revolving
Loans from time to time of each Lender, the Swing Line Loan Commitment and
the Swing Line Loans from time to time of Swing Line Lender, and each
repayment or prepayment in respect of the principal amount of the Term
Loans and the Revolving Loans of each Lender or the Swing Line Loans of
Swing Line Lender. Any such recordation shall be conclusive and binding on
Company and each Lender, absent manifest error; provided that failure to
make any such recordation, or any error in such recordation, shall not
affect any Lender's Commitments or Company's Obligations in respect of any
applicable Loans.
(iii) Each Lender shall record on its internal records (including the
Notes held by such Lender) the amount of the Term Loan and each Revolving
Loan made by it and each payment in respect thereof. Any such recordation
shall be conclusive and binding on Company, absent manifest error; provided
that, failure to make any such recordation, or any error in such
recordation, shall not affect any Lender's Commitments or Company's
Obligations in respect of any applicable Loans; and provided, further that,
in the event of any inconsistency between the Register and any Lender's
records, the recordations in the Register shall govern and be conclusive
and binding on such Lender, absent manifest error.
(iv) Company, Administrative Agent and Lenders shall deem and treat
the Persons listed as Lenders in the Register as the holders and owners of
the corresponding Commitments and Loans listed therein for all purposes
hereof, and no assignment or transfer of any such Commitment or Loan shall
be effective, in each case unless and until an Assignment Agreement
effecting the assignment or transfer thereof shall have been accepted by
Administrative Agent and recorded in the Register as provided in subsection
10.1B(ii). Prior to such recordation, all amounts owed with respect to the
applicable Commitment or Loan shall be owed to the Lender listed in the
Register as the owner thereof, and any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is listed in the Register as a Lender shall be conclusive and
binding on any subsequent holder, assignee or transferee of the
corresponding Commitments or Loans.
(v) Company hereby designates Fleet (or such Person who may serve as
Successor Administrative Agent) to serve as Company's agent solely for
purposes of maintaining the Register as provided in this subsection 2.1D,
and Company hereby agrees that, to the extent Fleet (or such Person who may
serve as Successor Administrative Agent) serves in such capacity, Fleet and
its officers, directors, employees, agents and affiliates shall constitute
Indemnitees for all purposes under subsection 10.3.
E. Optional Notes. If so requested by any Lender by written notice to
Company (with a copy to Administrative Agent) at least two Business Days prior
to the Effective Date or at any time thereafter, Company shall execute and
deliver to such Lender (and/or, if applicable and if so specified in such
notice, to any Person who is an assignee of such Lender pursuant to subsection
10.1) on the Effective Date (or, if such notice is delivered after the Effective
Date, promptly after Company's receipt of such notice) a promissory note or
promissory notes to
51
evidence such Lender's Revolving Loans, Term Loans or Swing Line Loans,
substantially in the form of Exhibit IV, IV-A or Exhibit V annexed hereto,
respectively, with appropriate insertions.
2.2 Interest on the Loans.
---------------------
A. Rate of Interest. Subject to the provisions of subsections 2.6 and
2.7, each Loan (other than a Swingline Loan) shall bear interest on the unpaid
principal amount thereof from the date made through but excluding the date of
maturity (whether by acceleration or otherwise) at a rate determined by
reference to the Base Rate or the Adjusted Eurodollar Rate. Subject to the
provisions of subsection 2.7, each Swing Line Loan shall bear interest on the
unpaid principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Base Rate.
The applicable basis for determining the rate of interest with respect to any
Loan (other than a Swingline Loan) shall be selected by Company initially at the
time a Notice of Borrowing is given with respect to such Loan pursuant to
subsection 2.1B. The basis for determining the interest rate with respect to any
Loan (other than a Swingline Loan) may be changed from time to time pursuant to
subsection 2.2D. If on any day a Loan (other than a Swingline Loan) is
outstanding with respect to which notice has not been delivered to
Administrative Agent in accordance with the terms of this Agreement specifying
the applicable basis for determining the rate of interest, then for that day
that Loan shall bear interest determined by reference to the Base Rate.
(i) Subject to the provisions of subsections 2.2E and 2.7, each Loan
(other than Swing Line Loans) shall bear interest through maturity as
follows:
(a) if a Base Rate Loan, then at the sum of the Base Rate plus
the Applicable Base Rate Margin; or
(b) if a Eurodollar Rate Loan, then at the sum of the Adjusted
Eurodollar Rate plus the Applicable Eurodollar Rate Margin.
(ii) Subject to the provisions of subsections 2.2E and 2.7, the Swing
Line Loans shall bear interest through maturity at the sum of the Base Rate
plus the Applicable Base Rate Margin.
B. Interest Periods. In connection with each Eurodollar Rate Loan,
Company may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"Interest Period") to be applicable to such Loan, which Interest Period shall
be, at Company's option, a one-, two-, three- or six-month period; provided
that:
(i) the initial Interest Period for any Eurodollar Rate Loan shall
commence on the Funding Date in respect of such Loan, in the case of a Loan
initially made as a Eurodollar Rate Loan, or on the date specified in the
applicable Notice of Conversion/Continuation, in the case of a Loan
converted to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods applicable
to a Eurodollar Rate Loan continued as such pursuant to a Notice of
52
Conversion/Continuation, each successive Interest Period shall commence on
the day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided that, if any Interest Period would
otherwise expire on a day that 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;
(iv) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall,
subject to clause (v) of this subsection 2.2B, end on the last Business Day
of a calendar month;
(v) no Interest Period with respect to any portion of the Term
Loans shall extend beyond July 20, 2006, and no Interest Period with
respect to any portion of the Revolving Loans shall extend beyond the
Revolving Loan Commitment Termination Date;
(vi) there shall be no more than fifteen (15) Interest Periods
outstanding at any time; and
(vii) in the event Company fails to specify an Interest Period for
any Eurodollar Rate Loan in the applicable Notice of Borrowing or Notice of
Conversion/Continuation, Company shall be deemed to have selected an
Interest Period of one month.
C. Interest Payments. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to but excluding each
Interest Payment Date applicable to that Loan, upon any prepayment of that Loan
(to the extent accrued on the amount being prepaid) and at maturity (including
final maturity); provided that in the event any Swing Line Loans or any
Revolving Loans that are Base Rate Loans are prepaid pursuant to subsection
2.4B, interest accrued on such Swing Line Loans or Revolving Loans through the
date of such prepayment shall be payable on the next succeeding Interest Payment
Date applicable to Base Rate Loans (or, if earlier, at final maturity).
D. Conversion or Continuation. Subject to the provisions of subsection
2.6, Company shall have the option (i) to convert at any time all or any part of
its outstanding Term Loans or Revolving Loans equal to $500,000 and integral
multiples of $100,000 in excess of that amount from Loans bearing interest at a
rate determined by reference to one basis to Loans bearing interest at a rate
determined by reference to an alternative basis or (ii) upon the expiration of
any Interest Period applicable to a Eurodollar Rate Loan, to continue all or any
portion of such Loan equal to $1,000,000 and integral multiples of $100,000 in
excess of that amount as a Eurodollar Rate Loan;
Company shall deliver a Notice of Conversion/Continuation at any time after
the Effective Date to Administrative Agent no later than 12:00 Noon (New York
City time) at least one Business Day in advance of the proposed conversion date
(in the case of a conversion to a Base Rate Loan) and at least three Business
Days in advance of the proposed
53
conversion/continuation date (in the case of a conversion to, or a continuation
of, a Eurodollar Rate Loan). A Notice of Conversion/Continuation shall specify
(i) the proposed conversion/continuation date (which shall be a Business Day),
(ii) the amount and type of the Loan to be converted/continued, (iii) the nature
of the proposed conversion/continuation, (iv) in the case of a conversion to, or
a continuation of, a Eurodollar Rate Loan, the requested Interest Period, and
(v) in the case of a conversion to, or a continuation of, a Eurodollar Rate
Loan, that no Potential Event of Default or Event of Default has occurred and is
continuing. In lieu of delivering the above-described Notice of
Conversion/Continuation, Company may give Administrative Agent telephonic notice
by the required time of any proposed conversion/continuation under this
subsection 2.2D; provided that such notice shall be promptly confirmed in
writing by delivery of a Notice of Conversion/Continuation to Administrative
Agent on or before the proposed conversion/continuation date. Upon receipt of
written or telephonic notice of any proposed conversion/continuation under this
subsection 2.2D, Administrative Agent shall promptly transmit such notice by
telefacsimile or telephone to each Lender.
Neither Administrative Agent nor any Lender shall incur any liability to
Company in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to act on behalf of Company or for
otherwise acting in good faith under this subsection 2.2D, and upon conversion
or continuation of the applicable basis for determining the interest rate with
respect to any Loans in accordance with this Agreement pursuant to any such
telephonic notice Company shall have effected a conversion or continuation, as
the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice
of Conversion/Continuation for conversion to, or continuation of, a Eurodollar
Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable on and
after the related Interest Rate Determination Date, and Company shall be bound
to effect a conversion or continuation in accordance therewith.
Notwithstanding the foregoing, Eurodollar Rate Loans may be converted to
Base Rate Loans prior to the expiration of the applicable Interest Periods so
long as such conversion occurs on the Effective Date; provided that accrued
interest through the Effective Date on the Loans so converted shall be paid
within five Business Days following the Effective Date.
E. Default Interest. Notwithstanding the rates of interest specified in
Section 2.2 or elsewhere herein, effective immediately upon either (i) the
occurrence of any Event of Default referred to in Section 8.1, 8.6 or 8.7 or
(ii) receipt by Company of written notice from the Administrative Agent (at the
direction of the Requisite Lenders) with respect to any Event of Default (other
than the Event of Defaults referred to in clause (i)), and for as long
thereafter as such Event of Default shall be continuing, the principal balance
of all Loans and all other Obligations shall bear interest at a rate which is
two percent (2.0%) per annum (the "Default Rate") in excess of the rate of
interest applicable to such Loans and Obligations from time to time, to the
extent permitted by applicable law, and shall be payable upon demand; provided
that, in the case of overdue Eurodollar Rate Loans, upon the expiration of the
Interest Period in effect at the time any such increase in interest rate is
effective such Eurodollar Rate Loans shall thereupon become Base Rate Loans and
shall thereafter bear interest payable upon demand at a
54
rate which is 2% per annum in excess of the interest rate otherwise payable
under this Agreement for Base Rate Loans. Payment or acceptance of the increased
rates of interest provided for in this subsection 2.2E is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies of Administrative
Agent or any Lender.
F. Computation of Interest. Interest on the Loans shall be computed (i)
in the case of Base Rate Loans, on the basis of a 365-day or 366-day year, as
the case may be, and (ii) in the case of Eurodollar Rate Loans, on the basis of
a 360-day year, in each case for the actual number of days elapsed in the period
during which it accrues. In computing interest on any Loan, the date of the
making of such Loan or the first day of an Interest Period applicable to such
Loan or, with respect to a Base Rate Loan being converted from a Eurodollar Rate
Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate
Loan, as the case may be, shall be included, and the date of payment of such
Loan or the expiration date of an Interest Period applicable to such Loan or,
with respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the
date of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the
case may be, shall be excluded; provided that if a Loan is repaid on the same
day on which it is made, one day's interest shall be paid on that Loan.
2.3 Fees.
----
A. Commitment Fees. Company agrees to pay to Administrative Agent, for
distribution to each Lender in proportion to that Lender's Pro Rata Share,
commitment fees for the period from and including the Closing Date to and
excluding the Revolving Loan Commitment Termination Date equal to the average of
the daily excess of the Revolving Loan Commitments over the Total Utilization of
Revolving Loan Commitments less outstanding Swingline Loans (other than, with
respect to Swingline Lender, the Swingline Lenders Pro Rata Share of the
Swingline Loans) multiplied by the Applicable Commitment Fee Percentage, such
commitment fees to be calculated on the basis of a 360-day year and the actual
number of days elapsed and to be payable quarterly in arrears on March 15, June
15, September 15 and December 15 of each year, commencing on the first such date
to occur after the Closing Date, and on the Revolving Loan Commitment
Termination Date. Any such calculation or distribution of fees pursuant to this
subsection 2.3A shall take into account the increase in Revolving Loan
Commitments and adjustments to Pro Rata Shares with respect thereto as of the
Effective Date.
B. Restructuring Fee. Company agrees to pay to the Administrative Agent,
for the ratable benefit of those Lenders signatory to this Agreement (based upon
such Existing Lenders' Pro Rata Shares under the terms of the Existing Credit
Agreement immediately prior to the occurrence of the Effective Date), a
restructuring fee (the "Restructuring Fee"), fully earned and payable in cash on
the Effective Date, in an amount equal to (a) $675,000,000 times (b) 0.50%.
C. Success Fee; PIK Interest. The Company agrees to pay to the
Administrative Agent, for the ratable benefit of the Lenders (based upon the
Lenders' Pro Rata Shares after the Effective Date), a fee in the amount of
$5,000,000, as such amount may be increased from time to time as set forth below
(the "Success Fee"). The Success Fee shall be fully earned on the Effective Date
and shall be non-refundable. The Success Fee shall be paid in full in cash on
the earliest to occur of (i) July 20, 2006, (ii) the date on which the Loans and
all Obligations (other
55
than the Success Fee) shall have been repaid in full, and (iii) the occurrence
of a Material Liquidation Event (such earliest date, the "Success Fee
Termination Date"). The Success Fee shall constitute an Obligation and shall be
secured by the Collateral. Interest shall accrue on the amount of the Success
Fee from the Effective Date through and including the Success Fee Termination
Date (the "Success Fee Interest Obligation") at a per annum rate equal to the
then effective Adjusted Eurodollar Rate for a six-month Interest Period plus 2%
(the "Success Fee Interest Rate"). The Success Fee Interest Obligation shall be
due in arrears on the last Business Day of each Fiscal Quarter and paid on the
last Business Day of each Fiscal Quarter occurring prior to the Success Fee
Termination Date by adding the amount of such Success Fee Interest Obligation
then due to the principal amount of the Success Fee. Notwithstanding the
foregoing, the Success Fee and any Success Fee Interest Obligation shall be paid
in full in cash on the Success Fee Termination Date.
D. Other Fees. Company agrees to pay to Agents such fees in the amounts
and at the times separately agreed upon between Company and each Agent.
2.4 Scheduled Payments of Term Loans Repayments, Prepayments and Reductions in
--------------------------------------------------------------------------
Revolving Loan Commitments; General Provisions Regarding Payments;
-----------------------------------------------------------------
Application of Proceeds of Collateral and Payments Under Guaranties.
-------------------------------------------------------------------
A. Scheduled Payments of Term Loans.
(i) Scheduled Payments of Term Loans. Prior to the Effective Date,
Company has repaid $6,875,000 of the original principal amount of the Term
Loans which equals 11 installments of .25% of the original principal amount
of the Terms Loans. Company shall make principal payments on the Term Loans
in installments on the dates and in the percentages of the original
principal amount of the Term Loans set forth below:
=================================================================
SCHEDULED REPAYMENT OF
DATE TERM LOANS
-----------------------------------------------------------------
June 30, 2002 .25%
-----------------------------------------------------------------
September 30, 2002 .25%
-----------------------------------------------------------------
December 31, 2002 .25%
-----------------------------------------------------------------
March 31, 2003 .25%
-----------------------------------------------------------------
June 30, 2003 .25%
-----------------------------------------------------------------
September 30, 2003 .25%
-----------------------------------------------------------------
December 31, 2003 .25%
-----------------------------------------------------------------
March 31, 2004 .25%
-----------------------------------------------------------------
June 30, 2004 .25%
-----------------------------------------------------------------
September 30, 2004 .25%
-----------------------------------------------------------------
December 31, 2004 .25%
-----------------------------------------------------------------
March 31, 2005 .25%
-----------------------------------------------------------------
June 30, 2005 .25%
-----------------------------------------------------------------
September 30, 2005 .25%
-----------------------------------------------------------------
December 31, 2005 .25%
-----------------------------------------------------------------
March 31, 2006 .25%
=================================================================
56
=================================================================
SCHEDULED REPAYMENT OF
DATE TERM LOANS
-----------------------------------------------------------------
June 30, 2006 .25%
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July 20, 2006 93.0%
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; provided that the scheduled installments of principal of the Term Loans set
forth above shall be reduced in connection with any voluntary or mandatory
prepayments of the Term Loans in accordance with subsection 2.4B(iv); and
provided, further that the Term Loans and all other amounts owed hereunder with
respect to the Term Loans shall be paid in full no later than July 20, 2006, and
the final installment payable by Company in respect of the Term Loans on such
date shall be in an amount, if such amount is different from that specified
above, sufficient to repay all amounts owing by Company under this Agreement
with respect to the Term Loans.
B. Prepayments and Reductions in Revolving Loan Commitments.
(i) Voluntary Prepayments. Company may, upon written or telephonic
notice to Administrative Agent on or prior to 12:00 Noon (New York City
time) on the date of prepayment, which notice, if telephonic, shall be
promptly confirmed in writing, at any time and from time to time prepay any
Swing Line Loan on any Business Day in whole or in part in an aggregate
minimum amount of $500,000 and integral multiples of $100,000 in excess of
that amount. Company may, upon written or telephonic notice on the date of
prepayment, in the case of Base Rate Loans, and three Business Days' prior
written or telephonic notice, in the case of Eurodollar Rate Loans, in each
case given to Administrative Agent by 12:00 Noon (New York City time) on
the date required and, if given by telephone, promptly confirmed in writing
to Administrative Agent (which original written or telephonic notice
Administrative Agent will promptly transmit by telefacsimile or telephone
to each Lender), at any time and from time to time prepay any Term Loans or
Revolving Loans on any Business Day in whole or in part in an aggregate
minimum amount of $500,000 and integral multiples of $100,000 in excess of
that amount. Notice of prepayment having been given as aforesaid, the
principal amount of the Loans specified in such notice shall become due and
payable on the prepayment date specified therein. Any such voluntary
prepayment shall be applied as specified in subsection 2.4B(iv).
(ii) Voluntary Reductions of Revolving Loan Commitments. Company may,
upon not less than three Business Days' prior written or telephonic notice
confirmed in writing to Administrative Agent (which original written or
telephonic notice Administrative Agent will promptly transmit by
telefacsimile or telephone to each Lender), at any time and from time to
time terminate in whole or permanently reduce in part, without premium or
penalty, the Revolving Loan Commitments in an amount up to the amount by
which the Revolving Loan Commitments exceed the Total Utilization of
Revolving Loan Commitments at the time of such proposed termination or
reduction after giving effect to any concurrent repayment of Revolving
Loans and Letter of Credit; provided that any such partial reduction of the
Revolving Loan Commitments shall be in an aggregate minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess of that amount.
Company's notice to Administrative Agent shall designate the
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date (which shall be a Business Day) of such termination or reduction and
the amount of any partial reduction, and such termination or reduction of
the Revolving Loan Commitments shall be effective on the date specified in
Company's notice and shall reduce the Revolving Loan Commitment of each
Lender proportionately to its Pro Rata Share.
(iii) Mandatory Prepayments. The Loans shall be prepaid in the amounts
and under the circumstances set forth below, all such prepayments to be
applied as set forth below or as more specifically provided in subsection
2.4B(iv).
(a) Prepayments From Net Asset Sale Proceeds. No later than the
fifth Business Day following the date of receipt by Company or any of
its Subsidiaries of any Net Asset Sale Proceeds in respect of any
Asset Sale, Company shall prepay the Loans in an aggregate amount
equal to such Net Asset Sale Proceeds. If Company is otherwise
required to apply any portion of Net Asset Sale Proceeds to prepay
Indebtedness evidenced by the Second Priority Term Loans or the Senior
Notes then, notwithstanding anything contained in this Agreement to
the contrary, Company shall apply such Net Asset Sale Proceeds to the
prepayment of the Loans so as to eliminate or minimize any obligation
to prepay the Second Priority Term Loans or the Senior Notes.
(b) Prepayments from Net Insurance/Condemnation Proceeds. No
later than the tenth Business Day following the date of receipt by
Administrative Agent or by Company or any of its Subsidiaries of any
Net Insurance/Condemnation Proceeds that are required to be applied to
prepay the Loans pursuant to the provisions of subsection 6.4C,
Company shall prepay the Loans in an aggregate amount equal to the
amount of such Net Insurance/Condemnation Proceeds minus (if (1) no
Event of Default shall have occurred and be continuing and (2) Company
shall have delivered to Administrative Agent, on or before such tenth
Business Day, the Officers' Certificate described in subsection 6.4C),
any Proposed Insurance Reinvestment Proceeds; provided, that at
Company's option, such Proposed Insurance Reinvestment Proceeds may be
applied to prepay outstanding Revolving Loans to the full extent
thereof. In addition, no later than 180 days after receipt of any
Proposed Insurance Reinvestment Proceeds, Company shall prepay the
Loans in an amount equal to the amount of any such Proposed Insurance
Reinvestment Proceeds that have not theretofore been applied to (or
contractually committed to be applied to) the costs of repairing,
restoring or replacing the applicable assets of Company or its
Subsidiaries or reinvested in assets used in the ordinary course of
business; provided further that, Company shall not be required to make
any prepayment of the Loans to the extent that Net
Insurance/Condemnation Proceeds are less than (i) $1,000,000 with
respect to any individual insurance claim and (ii) $5,000,000 for all
insurance claims in any Fiscal Year.
(c) Prepayments Due to Issuance of Debt. On the date of receipt
by Holdings, Company or any of their respective Subsidiaries of the
Cash proceeds of any Indebtedness, including debt Securities of
Holdings, Company or any of
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their respective Subsidiaries (other than the Loans and any other
Indebtedness permitted under subsections 7.1 (such proceeds, net of
underwriting discounts and commissions and other reasonable costs and
expenses associated therewith, including reasonable legal fees and
expenses, being the "Net Indebtedness Proceeds")), Company shall
prepay the Loans in an aggregate amount equal to such Net Indebtedness
Proceeds; provided, however, that payment or acceptance of the amounts
provided for in this subsection 2.4B(iii)(c) shall not constitute a
waiver of any Event of Default resulting from the incurrence of such
Indebtedness or otherwise prejudice any rights or remedies of Agents
or Lenders. If Company is otherwise required to apply any portion of
Net Indebtedness Proceeds to prepay Indebtedness evidenced by the
Second Priority Term Loans or the Senior Notes then, notwithstanding
anything contained in this Agreement to the contrary, Company shall
apply such Net Indebtedness Proceeds to the prepayment of the Loans so
as to eliminate or minimize any obligation to prepay the Second
Priority Term Loans or the Senior Notes.
(d) Prepayments Due to Issuance of Equity Securities. On the
date of receipt by Holdings or Company of Cash proceeds (any such
proceeds, net of underwriting discounts and commissions and other
reasonable costs and expenses associated therewith, including
reasonable legal fees and expenses, being "Net Equity Proceeds") from
the issuance of any equity Securities of Holdings or Company after the
Effective Date (other than (1) capital contributions by Holdings to
Company or any other Subsidiary, (2) issuances of Securities to the
General Partner or Holdings by Company or (3) issuances of Holdings
Common Units, Preferred Units, Series B Preferred Units or Qualified
Preferred Units (x) to employees, officers, directors and consultants
of Holdings and its Subsidiaries in the ordinary course of business in
connection with their employment by Holdings, Company or its
Subsidiaries and (y) to ▇▇▇▇ Investors, the Other Investors, the
Existing Investors, and their Related Parties to the extent the Cash
proceeds thereof are not in excess of $10,000,000 and (z) in
connection with payment of all or any portion of the purchase price of
a business or assets in a Permitted Acquisition), Company shall prepay
the Loans in an aggregate amount equal to such Net Equity Proceeds. If
Company is otherwise required to apply any portion of Net Equity
Proceeds to prepay Indebtedness evidenced by the Second Priority Term
Loans or the Senior Notes then, notwithstanding anything contained in
this Agreement to the contrary, Company shall apply such Net Equity
Proceeds to the prepayment of the Loans so as to eliminate or minimize
any obligation to prepay the Second Priority Term Loans or the Senior
Notes.
(e) Prepayments Due to Excess. If on the last Business Day of
each calendar week the Book Cash is greater than $10,000,000, Company
shall prepay the Loans on the second Business Day of the following
calendar week in an amount equal to the excess of such aggregate
amount over $10,000,000 (the "Excess Cash Prepayment Amount");
provided, however, to the extent that such last Business Day is also
the last day of any month, fiscal quarter or Fiscal Year of Company,
Company may make adjustments for any overage or shortage
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relating to the payment made on such second Business Day on or before
the fifth Business Day following the date such payment is made.
(f) Calculations of Net Proceeds Amounts; Additional Prepayments
and Reductions Based on Subsequent Calculations. Concurrently with any
prepayment of the Loans pursuant to subsections 2.4B(iii)(a)-(e),
Company shall deliver to Administrative Agent an Officers' Certificate
demonstrating the calculation of the amount (the "Net Proceeds
Amount") of the applicable Net Asset Sale Proceeds, Net
Insurance/Condemnation Proceeds, Net Indebtedness Proceeds, Net Equity
Proceeds or Excess Cash Prepayment Amount (as such terms are defined
in subsections 2.4B(iii)(a), (b), (c), (d) and (e), respectively), as
the case may be, that gave rise to such prepayment. In the event that
Company shall subsequently determine that the actual Net Proceeds
Amount was greater than the amount set forth in such Officers'
Certificate, Company shall promptly make an additional prepayment of
the Loans in an amount equal to the amount of such excess, and Company
shall concurrently therewith deliver to Administrative Agent an
Officers' Certificate demonstrating the derivation of the additional
Net Proceeds Amount resulting in such excess.
(g) Prepayments Relating to the Borrowing Base. (I) Company
shall from time to time prior to the Revolving Loan Commitment
Termination Date, prepay Loans (and after all Loans have been repaid,
deposit in a collateral account same day funds in an amount equal to
the Letter of Credit Usage until such time as the Letters of Credit
shall have been terminated and the Letter of Credit Usage has been
reduced to zero or until no payment is otherwise required under this
clause (g)) in such amounts as shall be necessary so that at all times
the Total Utilization of Commitments shall not exceed the Adjusted
Borrowing Base Amount then in effect.
(II) Company shall from time to time prior to the Revolving Loan
Commitment Termination Date, prepay Loans (and after all Loans have
been repaid, deposit in a collateral account same day funds in an
amount equal to the Letter of Credit Usage until such time as the
Letters of Credit shall have been terminated and the Letter of Credit
Usage has been reduced to zero or until no payment is otherwise
required under this clause (g)) in such amounts as shall be necessary
so that at all times the Total Utilization of Commitments shall not
exceed the amount of the Adjusted Borrowing Base Amount then in effect
minus the Minimum Revolver Availability Amount then in effect.
(h) Prepayments Due to Restrictions of Revolving Loan
Commitments. Company shall from time to time prepay first the Swing
Line Loans and second the Revolving Loans to the extent necessary so
that the Total Utilization of Revolving Loan Commitments shall not at
any time exceed the Revolving Loan Commitments then in effect.
(iv) Application of Prepayments.
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(a) Application of Voluntary Prepayments by Type of Loans and Order
of Maturity. Any voluntary prepayments pursuant to subsection 2.4B(i) shall
be applied automatically, without any discretion from the Company, first to
repay outstanding Swing Line Loans to the full extent thereof, and second
to repay outstanding Revolving Loans to the full extent thereof, and third
to repay outstanding Term Loans to the full extent thereof.
(b) Application of Mandatory Prepayments by Type of Loans. Any amount
(the "Applied Amount") required to be applied as a mandatory prepayment of
the Loans pursuant to subsections 2.4B(iii)(a)-(g) shall be applied first
to prepay the Swing Line Loans to the full extent thereof, second to prepay
the Revolving Loans to the full extent thereof but without any
corresponding Commitments reduction and third to the extent of any
remaining portion of the Applied Amount, to prepay the Term Loans to the
full extent thereof.
(c) Application of Prepayments to Base Rate Loans and Eurodollar Rate
Loans. Any prepayment shall be applied first to Base Rate Loans to the full
extent thereof before application to Eurodollar Rate Loans, in each case in
a manner which minimizes the amount of any payments required to be made by
Company pursuant to subsection 2.6D.
(d) Application of Mandatory Prepayments of Term Loans to the
Scheduled Installments of Principal Thereof. Any mandatory prepayments of
the Term Loans pursuant to subsection 2.4B(iii) shall be applied to reduce
the scheduled installments of principal of the Term Loans set forth in
subsection 2.4A(i) on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof) to each scheduled installment of
principal of the Term Loans set forth in subsection 2.4A(i) that is unpaid
at the time of such prepayment.
C. General Provisions Regarding Payments.
(i) Manner and Time of Payment. All payments by Company of principal,
interest, fees and other Obligations hereunder and under the Notes shall be made
in Dollars in same day funds, without defense, setoff or counterclaim, free of
any restriction or condition, and delivered to Administrative Agent not later
than 1:00 P.M. (New York City time) on the date due at the Funding and Payment
Office for the account of Lenders; funds received by Administrative Agent after
that time on such due date shall be deemed to have been paid by Company on the
next succeeding Business Day. Company hereby authorizes Administrative Agent to
charge its accounts with Administrative Agent in order to cause timely payment
to be made to Administrative Agent of all principal, interest, fees and expenses
due hereunder (subject to sufficient funds being available in its accounts for
that purpose).
(ii) Application of Payments to Principal and Interest. Except as provided
in subsection 2.2C, all payments in respect of the principal amount of any Loan
shall include payment of accrued interest on the principal amount being repaid
or prepaid, and
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all such payments (and, in any event, any payments in respect of any Loan
on a date when interest is due and payable with respect to such Loan) shall
be applied to the payment of interest before application to principal.
(iii) Apportionment of Payments. Aggregate principal and interest
payments in respect of Term Loans and Revolving Loans shall be apportioned
among all outstanding Loans to which such payments relate, in each case
proportionately to Lenders' respective Pro Rata Shares giving effect to any
adjustments in Pro Rata Shares on and after the Effective Date.
Administrative Agent shall promptly distribute to each Lender, at its
primary address set forth below its name on the appropriate signature page
hereof or at such other address as such Lender may request, its Pro Rata
Share of all such payments received by Administrative Agent and the
commitment fees of such Lender when received by Administrative Agent
pursuant to subsection 2.3. Notwithstanding the foregoing provisions of
this subsection 2.4C(iii), if, pursuant to the provisions of subsection
2.6C, any Notice of Conversion/Continuation is withdrawn as to any Affected
Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro
Rata Share of any Eurodollar Rate Loans, Administrative Agent shall give
effect thereto in apportioning payments received thereafter.
(iv) Payments on Business Days. Subject to the provisions of
subsection 2.2B, whenever any payment to be made hereunder shall be stated
to be due on a day that is not a Business Day, such payment shall be made
on the next succeeding Business Day and such extension of time shall be
included in the computation of the payment of interest hereunder or of the
commitment fees hereunder, as the case may be.
(v) Notation of Payment. Each Lender agrees that before disposing
of any Note held by it, or any part thereof (other than by granting
participations therein), that Lender will make a notation thereon of all
Loans evidenced by that Note and all principal payments previously made
thereon and of the date to which interest thereon has been paid; provided
that the failure to make (or any error in the making of) a notation of any
Loan made under such Note shall not limit or otherwise affect the
obligations of Company hereunder or under such Note with respect to any
Loan or any payments of principal or interest on such Note.
D. Application of Proceeds of Collateral and Payments Under Guaranties.
(i) Application of Proceeds of Collateral. Except as provided in
subsections 2.4(B)(i), 2.4B(iii)(a), 2.4B(iii)(b), 2.4(B)(iii)(e),
2.4(B)(iii)(g)(I), 2.4(B)(iii)(g)(II) and 2.4(B)(iii)(h), all proceeds
received by Administrative Agent in respect of any sale of, collection
from, or other realization upon all or any part of the Collateral under any
Collateral Document during the continuation of an Event of Default may, in
the discretion of Administrative Agent, be held by Administrative Agent as
Collateral for, and/or (then or at any time thereafter) applied in full or
in part by Administrative Agent against, the applicable Secured Obligations
(as defined in such Collateral Document) in the following order of
priority:
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(a) To the payment of all costs and expenses of such sale,
collection or other realization, including all expenses, liabilities
and advances made or incurred by Administrative Agent and its agents
and counsel in connection therewith, and all amounts for which
Administrative Agent is entitled to indemnification under such
Collateral Document and all advances made by Administrative Agent
thereunder for the account of the applicable Loan Party, and to the
payment of all costs and expenses paid or incurred by Administrative
Agent in connection with the exercise of any right or remedy under
such Collateral Document, all in accordance with the terms of this
Agreement and such Collateral Document;
(b) thereafter, to the extent of any excess such proceeds, to
the payment of all other such Secured Obligations then due and owing
for the benefit of the holders thereof in accordance with the terms of
Intercreditor Agreement; and
(c) thereafter, to the extent of any excess such proceeds, to
the payment to or upon the order of such Loan Party or to whosoever
may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.
(ii) Application of Payments Under Guaranties. All payments received
by Administrative Agent under the Guaranties shall be applied promptly from
time to time by Administrative Agent in the following order of priority:
(a) To the payment of the costs and expenses of any collection
or other realization under such Guaranties, including all expenses,
liabilities and advances made or incurred by Administrative Agent and
its agents and counsel in connection therewith, all in accordance with
the terms of this Agreement and Guaranty;
(b) thereafter, to the extent of any excess of such payments,
to the payment of all other Guarantied Obligations (as defined in such
Guaranty) for the benefit of the holders thereof in accordance with
the terms of the Intercreditor Agreement; and
(c) thereafter, to the extent of any excess such payments, to
the payment to Holdings or the applicable Subsidiary Guarantor or to
whosoever may be lawfully entitled to receive the same or as a court
of competent jurisdiction may direct.
2.5 Use of Proceeds.
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A. The proceeds of Existing Revolving Loans and the Term Loans were used
for the purposes specified in the Existing Credit Agreement.
B. Post Effective Date Revolving Loans and Swing Line Loans. Revolving
Loans and Swing Line Loans made on or after the Effective Date may be used by
Company for working capital and general corporate purposes, which may include
the making of intercompany loans to any of Company's wholly-owned Subsidiaries,
in accordance with subsection 7.1, for
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their own working capital and general corporate purposes (including Consolidated
Capital Expenditures) and financing Permitted Acquisitions.
C. Margin Regulations. No portion of the proceeds of any borrowing under
this Agreement shall be used by Holdings or any of its Subsidiaries in any
manner that might cause the borrowing or the application of such proceeds to
violate Regulation U, Regulation T or Regulation X of the Board of Governors of
the Federal Reserve System or any other regulation of such Board or to violate
the Exchange Act, in each case as in effect on the date or dates of such
borrowing and such use of proceeds.
2.6 Special Provisions Governing Eurodollar Rate Loans.
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Notwithstanding any other provision of this Agreement to the contrary, the
following provisions shall govern with respect to Eurodollar Rate Loans as to
the matters covered:
A. Determination of Applicable Interest Rate. As soon as practicable
after 10:00 A.M. (New York City time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent manifest
error, be final, conclusive and binding upon all parties) the interest rate that
shall apply to the Eurodollar Rate Loans for which an interest rate is then
being determined for the applicable Interest Period and shall promptly give
notice thereof (in writing or by telephone confirmed in writing) to Company and
each Lender.
B. Inability to Determine Applicable Interest Rate. In the event that
Administrative Agent shall have determined (which determination shall be final
and conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date with respect to any Eurodollar Rate Loans, that by reason of
circumstances affecting the interbank Eurodollar market adequate and fair means
do not exist for ascertaining the interest rate applicable to such Loans on the
basis provided for in the definition of Adjusted Eurodollar Rate, Administrative
Agent shall on such date give notice (by telefacsimile or by telephone confirmed
in writing) to Company and each Lender of such determination, whereupon (i) no
Loans may be made as, or converted to, Eurodollar Rate Loans until such time as
Administrative Agent notifies Company and Lenders that the circumstances giving
rise to such notice no longer exist and (ii) any Notice of Borrowing or Notice
of Conversion/Continuation given by Company with respect to the Loans in respect
of which such determination was made shall be deemed to be rescinded by Company.
C. Illegality or Impracticability of Eurodollar Rate Loans. In the event
that on any date any Lender shall have determined (which determination shall be
final and conclusive and binding upon all parties hereto but shall be made only
after consultation with Company and Administrative Agent) that the making,
maintaining or continuation of its Eurodollar Rate Loans (i) has become unlawful
as a result of compliance by such Lender in good faith with any law, treaty,
governmental rule, regulation, guideline or order (or would conflict with any
such treaty, governmental rule, regulation, guideline or order not having the
force of law even though the failure to comply therewith would not be unlawful)
or (ii) has become impracticable, or would cause such Lender material hardship,
as a result of contingencies occurring after the date of this Agreement which
materially and adversely affect the interbank Eurodollar market or the position
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of such Lender in that market, then, and in any such event, such Lender shall be
an "Affected Lender" and it shall on that day give notice (by telefacsimile or
by telephone confirmed in writing) to Company and Administrative Agent of such
determination (which notice Administrative Agent shall promptly transmit to each
other Lender). Thereafter (a) the obligation of the Affected Lender to make
Loans as, or to convert Loans to, Eurodollar Rate Loans shall be suspended until
such notice shall be withdrawn by the Affected Lender, (b) to the extent such
determination by the Affected Lender relates to a Eurodollar Rate Loan then
being requested by Company pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, the Affected Lender shall make such Loan as (or convert
such Loan to, as the case may be) a Base Rate Loan, (c) the Affected Lender's
obligation to maintain its outstanding Eurodollar Rate Loans (the "Affected
Loans") shall be terminated at the earlier to occur of the expiration of the
Interest Period then in effect with respect to the Affected Loans or when
required by law, and (d) the Affected Loans shall automatically convert into
Base Rate Loans on the date of such termination. Notwithstanding the foregoing,
to the extent a determination by an Affected Lender as described above relates
to a Eurodollar Rate Loan then being requested by Company pursuant to a Notice
of Borrowing or a Notice of Conversion/Continuation, Company shall have the
option, subject to the provisions of subsection 2.6D, to rescind such Notice of
Borrowing or Notice of Conversion/Continuation as to all Lenders by giving
notice (by telefacsimile or by telephone confirmed in writing) to Administrative
Agent of such rescission on the date on which the Affected Lender gives notice
of its determination as described above (which notice of rescission
Administrative Agent shall promptly transmit to each other Lender). Except as
provided in the immediately preceding sentence, nothing in this subsection 2.6C
shall affect the obligation of any Lender other than an Affected Lender to make
or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in
accordance with the terms of this Agreement.
D. Compensation For Breakage or Non-Commencement of Interest Periods.
Company shall compensate each Lender, promptly upon written request by that
Lender (which request shall set forth the basis for requesting such amounts),
for all reasonable losses, expenses and liabilities (including any interest paid
by that Lender to lenders of funds borrowed by it to make or carry its
Eurodollar Rate Loans and any loss, expense or liability sustained by that
Lender in connection with the liquidation or re-employment of such funds) which
that Lender may sustain: (i) if for any reason (other than a default by that
Lender) a borrowing of any Eurodollar Rate Loan does not occur on a date
specified therefor in a Notice of Borrowing or a telephonic request for
borrowing, or a conversion to or continuation of any Eurodollar Rate Loan does
not occur on a date specified therefor in a Notice of Conversion/Continuation or
a telephonic request for conversion or continuation, (ii) if any prepayment
(including any prepayment pursuant to subsection 2.4B(i)) or other principal
payment or any conversion of any of its Eurodollar Rate Loans occurs on a date
prior to the last day of an Interest Period applicable to that Loan, (iii) if
any prepayment of any of its Eurodollar Rate Loans is not made on any date
specified in a notice of prepayment given by Company, or (iv) as a consequence
of any other default by Company in the repayment of its Eurodollar Rate Loans
when required by the terms of this Agreement.
E. Booking of Eurodollar Rate Loans. Subject to its obligations under
subsection 2.8, any Lender may make, carry or transfer Eurodollar Rate Loans at,
to, or for the account of any of its branch offices or the office of an
Affiliate of that Lender.
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F. Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation
of all amounts payable to a Lender under this subsection 2.6 and under
subsection 2.7A shall be made as though that Lender had actually funded each of
its relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit
bearing interest at the rate obtained pursuant to clause (i) of the definition
of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar
Rate Loan and having a maturity comparable to the relevant Interest Period and
through the transfer of such Eurodollar deposit from an offshore office of that
Lender to a domestic office of that Lender in the United States of America;
provided, however, that each Lender may fund each of its Eurodollar Rate Loans
in any manner it sees fit and the foregoing assumptions shall be utilized only
for the purposes of calculating amounts payable under this subsection 2.6 and
under subsection 2.7A.
G. Eurodollar Rate Loans After Default. After the occurrence of and
during the continuation of an Event of Default, (i) Company may not elect to
have a Loan be made or maintained as, or converted to, a Eurodollar Rate Loan
after the expiration of any Interest Period then in effect for that Loan and
(ii) subject to the provisions of subsection 2.6D, any Notice of Borrowing or
Notice of Conversion/Continuation given by Company with respect to a requested
borrowing or conversion/continuation of, or into, Eurodollar Rate Loans that has
not yet occurred shall be deemed to be rescinded by Company.
2.7 Increased Costs; Taxes; Capital Adequacy.
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A. Compensation for Increased Costs and Taxes. Subject to the provisions
of subsection 2.7B (which shall be controlling with respect to the matters
covered thereby), in the event that any Lender shall determine (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) that any law, treaty or governmental rule, regulation
or order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or
governmental authority, in each case that becomes effective after the date
hereof, or compliance by such Lender with any guideline, request or directive
issued or made after the date hereof by any central bank or other governmental
or quasi-governmental authority (whether or not having the force of law):
(i) subjects such Lender (or its applicable lending office) to any
additional Tax (other than any Tax on the overall net income of such
Lender) with respect to this Agreement or any of its obligations hereunder
or any payments to such Lender (or its applicable lending office) of
principal, interest, fees or any other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve (including any
marginal, emergency, supplemental, special or other reserve), special
deposit, compulsory loan, FDIC insurance or similar requirement against
assets held by, or deposits or other liabilities in or for the account of,
or advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Lender (other than any such
reserve or other requirements with respect to Eurodollar Rate Loans that
are reflected in the definition of Adjusted Eurodollar Rate); or
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(iii) imposes any other condition (other than with respect to a Tax
matter) on or affecting such Lender (or its applicable lending office) or
its obligations hereunder or the interbank Eurodollar market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable lending office) with
respect thereto; then, in any such case, Company shall promptly pay to such
Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or 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 may be necessary to compensate such Lender
for any such increased cost or reduction in amounts received or receivable
hereunder. Such Lender shall deliver to Company (with a copy to Administrative
Agent) a written statement, setting forth in reasonable detail the basis for
calculating the additional amounts owed to such Lender under this subsection
2.7A, which statement shall be conclusive and binding upon all parties hereto
absent manifest error.
B. Withholding of Taxes.
(i) Payments to Be Free and Clear. All sums payable by Company under
this Agreement and the other Loan Documents shall (except to the extent
required by law) be paid free and clear of, and without any deduction or
withholding on account of, any Tax (other than a Tax on the overall net
income of any Lender) imposed, levied, collected, withheld or assessed by
or within the United States of America or any political subdivision in or
of the United States of America or any other jurisdiction from or to which
a payment is made by or on behalf of Company or by any federation or
organization of which the United States of America or any such jurisdiction
is a member at the time of payment.
(ii) Grossing-up of Payments. If Company or any other Person is
required by law to make any deduction or withholding on account of any such
Tax from any sum paid or payable by Company to Administrative Agent or any
Lender under any of the Loan Documents:
(a) Company shall notify Administrative Agent of any such
requirement or any change in any such requirement as soon as Company
becomes aware of it;
(b) Company shall pay any such Tax before the date on which
penalties attach thereto, such payment to be made (if the liability to
pay is imposed on Company) for its own account or (if that liability
is imposed on Administrative Agent or such Lender, as the case may be)
on behalf of and in the name of Administrative Agent or such Lender;
(c) the sum payable by Company in respect of which the relevant
deduction, withholding or payment is required shall be increased to
the extent necessary to ensure that, after the making of that
deduction, withholding or payment, Administrative Agent or such
Lender, as the case may be, receives on
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the due date a net sum equal to what it would have received had no
such deduction, withholding or payment been required or made; and
(d) within 30 days after paying any sum from which it is
required by law to make any deduction or withholding, and within 30
days after the due date of payment of any Tax which it is required by
clause (b) above to pay, Company shall deliver to Administrative Agent
evidence satisfactory to the other affected parties of such deduction,
withholding or payment and of the remittance thereof to the relevant
taxing or other authority;
provided that no such additional amount shall be required to be paid to any
Lender under clause (c) above except to the extent that any change after the
Closing Date (in the case of each Existing Lender), after the Effective Date (in
the case of each New Lender) or after the date of the Assignment Agreement
pursuant to which such Lender became a Lender (in the case of each other Lender)
in any such requirement for a deduction, withholding or payment as is mentioned
therein shall result in an increase in the rate of such deduction, withholding
or payment from that in effect at the date of this Agreement or at the date of
such Assignment Agreement, as the case may be, in respect of payments to such
Lender.
(iii) Evidence of Exemption from U.S. Withholding Tax.
-----------------------------------------------
(a) Each Lender that is organized under the laws of any
jurisdiction other than the United States or any state or other
political subdivision thereof (for purposes of this subsection
2.7B(iii), a "Non-US Lender") shall deliver to Administrative Agent
for transmission to Company, on or prior to the Effective Date, on or
prior to the date of the Assignment Agreement pursuant to which it
becomes a Lender (in the case of each other Lender), and at such other
times as may be necessary in the determination of Company or
Administrative Agent (each in the reasonable exercise of its
discretion), (1) two original copies of Internal Revenue Service Form
1001 or 4224 (or any successor forms), properly completed and duly
executed by such Lender, together with any other certificate or
statement of exemption required under the Internal Revenue Code or the
regulations issued thereunder to establish that such Lender is not
subject to deduction or withholding of United States federal income
tax with respect to any payments to such Lender of principal,
interest, fees or other amounts payable under any of the Loan
Documents or (2) if such Lender is not a "bank" or other Person
described in Section 881(c)(3) of the Internal Revenue Code and cannot
deliver either Internal Revenue Service Form 1001 or 4224 pursuant to
clause (1) above, a Certificate re Non-Bank Status together with two
original copies of Internal Revenue Service Form W-8 (or any successor
form), properly completed and duly executed by such Lender, together
with any other certificate or statement of exemption required under
the Internal Revenue Code or the regulations issued thereunder to
establish that such Lender is not subject to deduction or withholding
of United States federal income tax with respect to any payments to
such Lender of interest payable under any of the Loan Documents.
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(b) Each Lender required to deliver any forms, certificates or
other evidence with respect to United States federal income tax
withholding matters pursuant to subsection 2.7B(iii)(a) hereby agrees,
from time to time after the initial delivery by such Lender of such
forms, certificates or other evidence, whenever a lapse in time or
change in circumstances renders such forms, certificates or other
evidence obsolete or. inaccurate in any material respect, that such
Lender shall promptly (1) deliver to Administrative Agent for
transmission to Company two new original copies of Internal Revenue
Service Form 1001 or 4224, or a Certificate re Non-Bank Status and two
original copies of Internal Revenue Service Form W-8, as the case may
be, properly completed and duly executed by such Lender, together with
any other certificate or statement of exemption required in order to
confirm or establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to
payments to such Lender under the Loan Documents or (2) notify
Administrative Agent and Company of its inability to deliver any such
forms, certificates or other evidence.
(c) Company shall not be required to pay any additional amount
to any Non-US Lender under clause (c) of subsection 2.7B(ii) if such
Lender shall have failed to satisfy the requirements of clause (a) or
(b)(l) of this subsection 2.7B(iii); provided that if such Lender
shall have satisfied the requirements of subsection 2.7B(iii)(a) on or
before the Effective Date or on the date of the Assignment Agreement
pursuant to which it became a Lender (in the case of each other
Lender), nothing in this subsection 2.7B(iii)(c) shall relieve Company
of its obligation to pay any additional amounts pursuant to clause (c)
of subsection 2.7B(ii) in the event that, as a result of any change in
any applicable law, treaty or governmental rule, regulation or order,
or any change in the interpretation, administration or application
thereof, such Lender is no longer properly entitled to deliver forms,
certificates or other evidence at a subsequent date establishing the
fact that such Lender is not subject to withholding as described in
subsection 2.7B(iii)(a).
C. Capital Adequacy Adjustment. If any Lender shall have determined that
the adoption, effectiveness, phase-in or applicability after the date hereof of
any law, rule or regulation (or any provision thereof) regarding capital
adequacy, or any change therein or in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
(or its applicable lending office) with any guideline, request or directive
regarding capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to,
such Lender's Loans or Commitments or Letters of Credit or participations
therein or other obligations hereunder with respect to the Loans or the Letters
of Credit to a level below that which such Lender or such controlling
corporation could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy),
then from time to time, within five Business Days after receipt by Company from
such Lender of the
69
statement referred to in the next sentence, Company shall pay to such Lender
such additional amount or amounts as will compensate such Lender or such
controlling corporation on an after-tax basis for such reduction. Such Lender
shall deliver to Company (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis of the calculation of
such additional amounts, which statement shall be conclusive and binding upon
all parties hereto absent manifest error.
2.8 Obligation of Lenders and Issuing Lenders to Mitigate.
-----------------------------------------------------
Each Lender and Issuing Lender agrees that, as promptly as practicable
after the officer of such Lender or Issuing Lender responsible for administering
the Loans or Letters of Credit of such Lender or Issuing Lender, as the case may
be, becomes aware of the occurrence of an event or the existence of a condition
that would cause such Lender to become an Affected Lender or that would entitle
such Lender or Issuing Lender to receive payments under subsection 2.7 or
subsection 3.6, it will, to the extent not inconsistent with the internal
policies of such Lender or Issuing Lender and any applicable legal or regulatory
restrictions, use reasonable efforts (i) to make, issue, fund or maintain the
Commitments of such Lender or the affected Loans or Letters of Credit of such
Lender or Issuing Lender through another lending or letter of credit office of
such Lender or Issuing Lender, or (ii) take such other measures as such Lender
or Issuing Lender may deem reasonable, if as a result thereof the circumstances
which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such
Lender or Issuing Lender pursuant to subsection 2.7 or subsection 3.6 would be
materially reduced and if, as determined by such Lender or Issuing Lender in its
sole discretion, the making, issuing, funding or maintaining of such Commitments
or Loans or Letters of Credit through such other lending or letter of credit
office or in accordance with such other measures, as the case may be, would not
otherwise materially adversely affect such Commitments or Loans or Letters of
Credit or the interests of such Lender or Issuing Lender; provided that such
Lender or Issuing Lender will not be obligated to utilize such other lending or
letter of credit office pursuant to this subsection 2.8 unless Company agrees to
pay all incremental expenses incurred by such Lender or Issuing Lender as a
result of utilizing such other lending or letter of credit office as described
in clause (i) above. A certificate as to the amount of any such expenses payable
by Company pursuant to this subsection 2.8 (setting forth in reasonable detail
the basis for requesting such amount) submitted by such Lender or Issuing Lender
to Company (with a copy to Administrative Agent) shall be conclusive absent
manifest error.
2.9 Defaulting Lenders.
------------------
Anything contained herein to the contrary notwithstanding, in the event
that any Lender (a "Defaulting Lender") defaults (a "Funding Default") in its
obligation to fund any Revolving Loan (a "Defaulted Revolving Loan") in
accordance with subsection 2.1, then (i) during any Default Period (as defined
below) with respect to such Defaulting Lender, such Defaulting Lender shall be
deemed not to be a "Lender" for purposes of voting on any matters (including the
granting of any consents or waivers) with respect to any of the Loan Documents,
(ii) to the extent permitted by applicable law, until such time as the Default
Excess (as defined below) with respect to such Defaulting Lender shall have been
reduced to zero, (a) any voluntary prepayment of the Revolving Loans pursuant to
subsection 2.4B(i) shall, if Company so directs
70
at the time of making such voluntary prepayment, be applied to the Revolving
Loans of other Lenders as if such Defaulting Lender had no Revolving Loans
outstanding and the Revolving Loan Exposure of such Defaulting Lender were zero,
and (b) any mandatory prepayment of the Revolving Loans pursuant to subsection
2.4B(iii) shall, if Company so directs at the time of making such mandatory
prepayment, be applied to the Revolving Loans of other Lenders (but not to the
Revolving Loans of such Defaulting Lender) as if such Defaulting Lender had
funded all Defaulted Revolving Loans of such Defaulting Lender, it being
understood and agreed that Company shall be entitled to retain any portion of
any mandatory prepayment of the Revolving Loans that is not paid to such
Defaulting Lender solely as a result of the operation of the provisions of this
clause (b), (iii) such Defaulting Lender's Revolving Loan Commitment and
outstanding Revolving Loans and such Defaulting Lender's Pro Rata Share of the
Letter of Credit Usage shall be excluded for purposes of calculating the
commitment fee payable to Lenders pursuant to subsection 2.3A in respect of any
day during any Default Period with respect to such Defaulting Lender, and such
Defaulting Lender shall not be entitled to receive any commitment fee pursuant
to subsection 2.3A with respect to such Defaulting Lender's Revolving Loan
Commitment in respect of any Default Period with respect to such Defaulting
Lender, and (iv) the Total Utilization of Revolving Loan Commitments as at any
date of determination shall be calculated as if such Defaulting Lender had
funded all Defaulted Revolving Loans of such Defaulting Lender.
For purposes of this Agreement, (I) "Default Period" means, with respect to
any Defaulting Lender, the period commencing on the date of the applicable
Funding Default and ending on the earliest of the following dates: (A) the date
on which all Revolving Loan Commitments are cancelled or terminated and/or the
Obligations are declared or become immediately due and payable, (B) the date on
which (1) the Default Excess with respect to such Defaulting Lender shall have
been reduced to zero (whether by the funding by such Defaulting Lender of any
Defaulted Revolving Loans of such Defaulting Lender or by the non-pro rata
application of any voluntary or mandatory prepayments of the Revolving Loans in
accordance with the terms of this subsection 2.9 or by a combination thereof)
and (2) such Defaulting Lender shall have delivered to Company and
Administrative Agent a written reaffirmation of its intention to honor its
obligations under this Agreement with respect to its Revolving Loan Commitment,
and (C) the date on which Company, Administrative Agent and Requisite Lenders
waive all Funding Defaults of such Defaulting Lender in writing, and (II)
"Default Excess" means, with respect to any Defaulting Lender, the excess, if
any, of such Defaulting Lender's Pro Rata Share of the aggregate outstanding
principal amount of Revolving Loans of all Lenders (calculated as if all
Defaulting Lenders (other than such Defaulting Lender) had funded all of their
respective Defaulted Revolving Loans) over the aggregate outstanding principal
amount of Revolving Loans of such Defaulting Lender.
No Commitment of any Lender shall be increased or otherwise affected, and,
except as otherwise expressly provided in this subsection 2.9, performance by
Company of its obligations under this Agreement and the other Loan Documents
shall not be excused or otherwise modified, as a result of any Funding Default
or the operation of this subsection 2.9. The rights and remedies against a
Defaulting Lender under this subsection 2.9 are in addition to other rights and
remedies which Company may have against such Defaulting Lender with respect to
any Funding Default and which Administrative Agent or any Lender may have
against such Defaulting Lender with respect to any Funding Default.
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2.10 Removal or Replacement of a Lender.
----------------------------------
A. Anything contained in this Agreement to the contrary notwithstanding,
in the event that:
(i) (a) any Lender (an "Increased-Cost Lender") shall give notice
to Company that such Lender is an Affected Lender or that such Lender is
entitled to receive payments under subsection 2.7 or subsection 3.6, (b)
the circumstances which have caused such Lender to be an Affected Lender or
which entitle such Lender to receive such payments shall remain in effect,
and (c) such Lender shall fail to withdraw such notice within five Business
Days after Company's request for such withdrawal; or
(ii) (a) any Lender shall become a Defaulting Lender, (b) the
Default Period for such Defaulting Lender shall remain in effect, and (c)
such Defaulting Lender shall fail to cure the default as a result of which
it has become a Defaulting Lender within five Business Days after Company's
request that it cure such default; or
(iii) (a) in connection with any proposed amendment, modification,
termination, waiver or consent with respect to any of the provisions of
this Agreement as contemplated by clauses (i) through (v) of the first
provision to subsection 10.6A, the consent of Requisite Lenders shall have
been obtained but the consent of one or more of such other Lenders (each a
"Non-Consenting Lender") whose consent is required shall not have been
obtained, and (b) the failure to obtain Non-Consenting Lenders' consents
does not result solely from the exercise of Non-Consenting Lenders' rights
(and the withholding of any required consents by Non-Consenting Lenders)
pursuant to the second provision to subsection 10.6A;
then, and in each such case, Company shall have the right, at its option, to
remove or replace the applicable Increased-Cost Lender, Defaulting Lender or
Non-Consenting Lender (the "Terminated Lender") to the extent permitted by
subsection 2.10B.
B. Company may, by giving written notice to Administrative Agent and any
Terminated Lender of its election to do so:
(i) elect to (a) terminate the Revolving Loan Commitment, if any,
of such Terminated Lender upon receipt by such Terminated Lender of such
notice and (b) prepay on the date of such termination any outstanding Loans
made by such Terminated Lender, together with accrued and unpaid interest
thereon and any other amounts payable to such Terminated Lender hereunder
pursuant to subsection 2.3, subsection 2.6, subsection 2.7 or subsection
3.6 or otherwise; provided that, in the event such Terminated Lender has
any Loans outstanding at the time of such termination, the written consent
of Administrative Agent and Requisite Lenders (which consent shall not be
unreasonably withheld or delayed) shall be required in order for Company to
make the election set forth in this clause (i); or
(ii) elect to cause such Terminated Lender (and such Terminated
Lender hereby irrevocably agrees) to assign its outstanding Loans and its
Revolving Loan Commitment, if any, in full to one or more Eligible
Assignees (each a "Replacement
72
Lender") in accordance with the provisions of subsection 10.1B; provided
that (a) on the date of such assignment, Company shall pay any amounts
payable to such Terminated Lender pursuant to subsection 2.3, subsection
2.6, subsection 2.7 or subsection 3.6 or otherwise as if it were a
prepayment and (b) in the event such Terminated Lender is a Non-Consenting
Lender, each Replacement Lender shall consent, at the time of such
assignment, to each matter in respect of which such Terminated Lender was a
Non-Consenting Lender;
provided that (X) Company may not make either of the elections set forth in
clauses (i) or (ii) above with respect to any Non-Consenting Lender unless
Company also makes one of such elections with respect to each other Terminated
Lender which is a Non-Consenting Lender and (Y) Company may not make either of
such elections with respect to any Terminated Lender that is an Issuing Lender
unless, prior to the effectiveness of such election, Company shall have caused
each outstanding Letter of Credit issued by such Issuing Lender to be cancelled.
C. Upon the prepayment of all amounts owing to any Terminated Lender and
the termination of such Terminated Lender's Revolving Loan Commitment, if any,
pursuant to clause (i) of subsection 2.10B, (i) Schedule 2.1 shall be deemed
modified to reflect any corresponding changes in the Revolving Loan Commitments
and (ii) such Terminated Lender shall no longer constitute a "Lender" for
purposes of this Agreement; provided that any rights of such Terminated Lender
to indemnification under this Agreement (including under subsections 2.6D, 2.7,
3.6, 10.2 and 10.3) shall survive as to such Terminated Lender.
SECTION 3.
LETTERS OF CREDIT
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations
---------------------------------------------------------------------
Therein.
-------
A. Letters of Credit. Company acknowledges and confirms that Schedule 3.1
annexed hereto sets forth each letter of credit issued under the Existing Credit
Agreement and outstanding as of the Effective Date (collectively, the "Existing
Letters of Credit"). Company hereby represents, warrants, agrees, covenants and
(a) reaffirms that it is not aware of any defense, set off, claim or
counterclaim against any Agent or Lender in regard to its Obligations in respect
of such Existing Letters of Credit and (b) reaffirms its obligation to reimburse
the applicable Issuing Lenders for honored drawings under such Existing Letters
of Credit in accordance with the terms and conditions of this Agreement and the
other Loan Documents applicable to Letters of Credit issued hereunder. Based on
the foregoing, Company and each Lender agrees that (1) each Existing Letter of
Credit which is a Standby Letter of Credit shall, as of the Effective Date, be
deemed for all purposes of this Agreement to be a Standby Letter of Credit
issued hereunder, and (2) each Existing Letter of Credit which is a Commercial
Letter of Credit shall, as of the Effective Date, be deemed for all purposes of
this Agreement to be a Commercial Letter of Credit issued hereunder. In addition
to Company requesting that Lenders make Revolving Loans pursuant to subsection
2.1A(iii) and that Swing Line Lender make Swing Line Loans pursuant to
subsection 2.1A(iv), Company may request, in accordance with the provisions of
this subsection 3.1, from time to time during the period from the Effective Date
to but excluding the Revolving Loan Commitment Termination Date, that one or
more Lenders
73
issue Letters of Credit for the account of Company for the purposes specified in
the definitions of Commercial Letters of Credit and Standby Letters of Credit;
provided that all such Commercial Letters of Credit shall provide for sight
drawings. Subject to the terms and conditions of this Agreement and in reliance
upon the representations and warranties of Company herein set forth, any one or
more Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be
obligated to, issue such Letters of Credit in accordance with the provisions of
this subsection 3.1; provided that Company shall not request that any Lender
issue (and no Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance,
the Total Utilization of Revolving Loan Commitments would exceed the
Revolving Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance,
the Letter of Credit Usage would exceed $10,000,000;
(iii) any Standby Letter of Credit having an expiration date later
than the earlier of (a) five Business Days prior to the Revolving Loan
Commitment Termination Date and (b) the date which is one year from the
date of issuance of such Standby Letter of Credit; provided that the
immediately preceding clause (b) shall not prevent any Issuing Lender from
agreeing that a Standby Letter of Credit will automatically be extended for
one or more successive periods not to exceed one year each unless such
Issuing Lender elects not to extend for any such additional period; and
provided, further that such Issuing Lender shall elect not to extend such
Standby Letter of Credit if it has knowledge that an Event of Default has
occurred and is continuing (and has not been waived in accordance with
subsection 10.6) at the time such Issuing Lender must elect whether or not
to allow such extension; provided, however, that notwithstanding clause (a)
but restrictions of this subsection, Company may request the issuance (on a
date prior to five Business Days prior to the Revolving Loan Commitment
Termination Date) of a Standby Letter of Credit having an expiration date
later than five Business Days prior to the Revolving Loan Commitment
Termination Date if Company, at the time of such request, makes
arrangements in form and substance satisfactory to the Issuing Lender
thereof to cash collateralize such Letter of Credit provided that Issuing
Lender shall be under no obligation to issue such a Letter of Credit if it
shall reasonably determine that such cash collateralization arrangements
could reasonably be expected to be less favorable to Issuing Lender than
the reimbursement arrangements hereunder with respect to other Letters of
Credit;
(iv) any Commercial Letter of Credit having an expiration date (a)
later than the earlier of (X) the date which is 30 days prior to the
Revolving Loan Commitment Termination Date and (Y) the date which is 180
days from the date of issuance (on a date prior to 30 days prior to the
Revolving Loan Commitment Termination Date) of such Commercial Letter of
Credit or (b) that is otherwise unacceptable to the applicable Issuing
Lender in its reasonable discretion; provided, that, notwithstanding clause
(X) but subject to the other restrictions of this subsection, Company may
request the issuance (on a date prior to 30 days prior to the Revolving
Loan Commitment Termination Date) of a Commercial Letter of Credit having
an expiration date later than the time set forth in clause (X) if Company,
at the time of such request, makes arrangements in form and
74
substance satisfactory to the Issuing Lender thereof to cash collateralize
such Letter of Credit; provided further that, Issuing Lender shall be under
no obligation to issue such a Letter of Credit if it shall reasonably
determine that such cash collateralization arrangements could reasonably be
expected to be less favorable to Issuing Lender than the reimbursement
arrangements hereunder with respect to other Letters of Credit; or
(v) any Letter of Credit if, after giving effect to the issuance
thereof, the Total Utilization of Commitments exceeds the Adjusted
Borrowing Base Amount then in effect.
B. Mechanics of Issuance.
(i) Notice of Issuance. Whenever Company desires the issuance of a
Letter of Credit, it shall deliver to Administrative Agent a Notice of
Issuance of Letter of Credit substantially in the form of Exhibit III
annexed hereto no later than 11:00 A.M. (New York City time) at least three
Business Days (in the case of Standby Letters of Credit) or five Business
Days (in the case of Commercial Letters of Credit), or in each case such
shorter period as may be agreed to by the Issuing Lender in any particular
instance, in advance of the proposed date of issuance. The Notice of
Issuance of Letter of Credit shall specify (a) the proposed date of
issuance (which shall be a Business Day), (b) whether the Letter of Credit
is to be a Standby Letter of Credit or a Commercial Letter of Credit, (c)
the face amount of the Letter of Credit, (d) in the case of a Letter of
Credit which Company requests to be denominated in a currency other than
Dollars, the currency in which Company requests such Letter of Credit to be
issued, (e) the expiration date of the Letter of Credit, (f) the name and
address of the beneficiary, and (g) either the verbatim text of the
proposed Letter of Credit or the proposed terms and conditions thereof,
including a precise description of any documents to be presented by the
beneficiary which, if presented by the beneficiary prior to the expiration
date of the Letter of Credit, would require the Issuing Lender to make
payment under the Letter of Credit; provided that the Issuing Lender, in
its reasonable discretion, may require changes in the text of the proposed
Letter of Credit or any such documents; and provided, further that no
Letter of Credit shall require payment against a conforming draft to be
made thereunder on the same business day (under the laws of the
jurisdiction in which the office of the Issuing Lender to which such draft
is required to be presented is located) that such draft is presented if
such presentation is made after 10:00 A.M. (in the time zone of such office
of the Issuing Lender) on such business day.
Company shall notify the applicable Issuing Lender (and Administrative
Agent, if Administrative Agent is not such Issuing Lender) prior to the issuance
of any Letter of Credit in the event that any of the matters to which Company is
required to certify in the applicable Notice of Issuance of Letter of Credit is
no longer true and correct as of the proposed date of issuance of such Letter of
Credit, and upon the issuance of any Letter of Credit Company shall be deemed to
have re-certified, as of the date of such issuance, as to the matters to which
Company is required to certify in the applicable Notice of Issuance of Letter of
Credit.
(ii) Determination of Issuing Lender. Upon receipt by Administrative
Agent of a Notice of Issuance of Letter of Credit pursuant to subsection
3.1B(i) requesting the
75
issuance of a Letter of Credit, in the event Administrative Agent elects to
issue such Letter of Credit, Administrative Agent shall promptly so notify
Company, and Administrative Agent shall be the Issuing Lender with respect
thereto. In the event that Administrative Agent, in its sole discretion,
elects not to issue such Letter of Credit, Administrative Agent shall
promptly so notify Company, whereupon Company may request any other Lender
to issue such Letter of Credit by delivering to such Lender a copy of the
applicable Notice of Issuance of Letter of Credit. Any Lender so requested
to issue such Letter of Credit shall promptly notify Company and
Administrative Agent whether or not, in its sole discretion, it has elected
to issue such Letter of Credit, and any such Lender which so elects to
issue such Letter of Credit shall be the Issuing Lender with respect
thereto. In the event that all other Lenders shall have declined to issue
such Letter of Credit, notwithstanding the prior election of Administrative
Agent not to issue such Letter of Credit, Administrative Agent shall be
obligated to issue such Letter of Credit and shall be the Issuing Lender
with respect thereto, notwithstanding the fact that the Letter of Credit
Usage with respect to such Letter of Credit and with respect to all other
Letters of Credit issued by Administrative Agent, when aggregated with
Administrative Agent's outstanding Revolving Loans and Swing Line Loans,
may exceed Administrative Agent's Revolving Loan Commitment then in effect;
provided that Administrative Agent shall not be obligated to issue any
Letter of Credit denominated in a foreign currency which in the judgment of
Administrative Agent is not readily and freely available.
(iii) Issuance of Letter of Credit. Upon satisfaction or waiver (in
accordance with subsection 10.6) of the conditions set forth in subsection
4.4, the Issuing Lender shall issue the requested Letter of Credit in
accordance with the Issuing Lender's standard operating procedures.
(iv) Notification to Lenders. Upon the issuance of any Letter of
Credit the applicable Issuing Lender shall promptly notify Administrative
Agent and each other Lender of such issuance, which notice shall be
accompanied by a copy of such Letter of Credit. Promptly after receipt of
such notice (or, if Administrative Agent is the Issuing Lender, together
with such notice), Administrative Agent shall notify each Lender of the
amount of such Lender's respective participation in such Letter of Credit,
determined in accordance with subsection 3.1C.
(v) Reports to Lenders. Within 15 days after the end of each
calendar quarter ending after the Effective Date, so long as any Letter of
Credit shall have been outstanding during such calendar quarter, each
Issuing Lender shall deliver to each other Lender a report setting forth
for such calendar quarter the daily aggregate amount available to be drawn
under the Letters of Credit issued by such Issuing Lender that were
outstanding during such calendar quarter.
C. Lenders' Purchase of Participations in Letters of Credit. Immediately
upon the issuance of each Letter of Credit, each Lender having a Revolving Loan
Commitment shall be deemed to, and hereby agrees to, have irrevocably purchased
from the Issuing Lender a participation in such Letter of Credit and any
drawings honored thereunder in an amount equal to such Lender's Pro Rata Share
(with respect to the Revolving Loan Commitments) of the
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maximum amount which is or at any time may become available to be drawn
thereunder. On the Revolving Loan Commitment Termination Date, the Issuing
Lender shall be deemed to, and hereby agrees to, irrevocably repurchase from
each Lender such Lender's participation in the Letters of Credit issued by such
Issuing Lender pursuant to the last proviso to subsection 3.1A(iii) or the last
proviso to subsection 3.1A(iv) to the extent any such Letter of Credit remains
outstanding and any amounts remain undrawn thereunder.
3.2 Letter of Credit Fees.
---------------------
Company agrees to pay the following amounts with respect to Letters of
Credit issued hereunder:
(i) with respect to each Standby Letter of Credit, (a) a fronting
fee, payable directly to the applicable Issuing Lender for its own account,
equal to 1/8 of 1% per annum of the daily amount available to be drawn
under such Standby Letter of Credit and (b) a letter of credit fee, payable
to Administrative Agent for the account of Lenders having Revolving Loan
Exposure, equal to the product of (x) the Applicable Eurodollar Rate Margin
and (y) the daily amount available to be drawn under such Standby Letter of
Credit, each such fronting fee or letter of credit fee to be payable in
arrears on and to (but excluding) each March 15, June 15, September 15 and
December 15 of each year and computed on the basis of a 360-day year for
the actual number of days elapse d;
(ii) with respect to each Commercial Letter of Credit, (a) a fronting
fee, payable directly to the applicable Issuing Lender for its own account,
equal to 1/8 of 1% per annum of the daily amount available to be drawn
under such Commercial Letter of Credit and (b) a letter of credit fee,
payable to Administrative Agent for the account of Lenders having Revolving
Loan Exposure, equal to the product of (x) the Applicable Eurodollar Rate
Margin and (y) the daily amount available to be drawn under such Commercial
Letter of Credit, each such fronting fee or letter of credit fee to be
payable in arrears on and to (but excluding) each March 15, June 15,
September 15 and December 15 of each year and computed on the basis of a
360-day year for the actual number of days elapsed; and
(iii) with respect to the issuance, amendment or transfer of each
Letter of Credit and each payment of a drawing made thereunder (without
duplication of the fees payable under clauses (i) and (ii) above),
documentary and processing charges payable directly to the applicable
Issuing Lender for its own account in accordance with such Issuing Lender's
standard schedule for such charges in effect at the time of such issuance,
amendment, transfer or payment, as the case may be.
For purposes of calculating any fees payable under clauses (i) and (ii) of this
subsection 3.2, (1) the daily amount available to be drawn under any Letter of
Credit shall be determined as of the close of business on any date of
determination and (2) any amount described in such clauses which is denominated
in a currency other than Dollars shall be valued based on the applicable
Exchange Rate for such currency as of the applicable date of determination.
Promptly upon receipt by Administrative Agent of any amount described in clause
(i)(b) or (ii)(b) of this
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subsection 3.2, Administrative Agent shall distribute to each Lender its Pro
Rata Share of such amount.
3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit.
------------------------------------------------------------------
A. Responsibility of Issuing Lender With Respect to Drawings. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to examine the
documents delivered under such Letter of Credit with reasonable care so as to
ascertain whether they appear on their face to be in accordance with the terms
and conditions of such Letter of Credit.
B. Reimbursement by Company of Amounts Paid Under Letters of Credit. In
the event an Issuing Lender has determined to honor a drawing under a Letter of
Credit issued by it, such Issuing Lender shall immediately notify Company and
Administrative Agent, and Company shall reimburse such Issuing Lender on or
before the Business Day immediately following the date on which such drawing is
honored (the "Reimbursement Date") in an amount in Dollars (which amount, in the
case of a drawing under a Letter of Credit which is denominated in a currency
other than Dollars, shall be calculated by reference to the applicable Exchange
Rate) and in same day funds equal to the amount of such honored drawing;
provided that, anything contained in this Agreement to the contrary
notwithstanding, (i) unless Company shall have notified Administrative Agent and
such Issuing Lender prior to 11:00 A.M. (New York City time) on the date such
drawing is honored that Company intends to reimburse such Issuing Lender for the
amount of such honored drawing with funds other than the proceeds of Revolving
Loans, Company shall be deemed to have given a timely Notice of Borrowing to
Administrative Agent requesting Lenders to make Revolving Loans that are Base
Rate Loans on the Reimbursement Date in an amount in Dollars (which amount, in
the case of a drawing under a Letter of Credit which is denominated in a
currency other than Dollars, shall be calculated by reference to the applicable
Exchange Rate) equal to the amount of such honored drawing and (ii) subject to
satisfaction or waiver of the conditions specified in subsection 4.3B, Lenders
shall, on the Reimbursement Date, make Revolving Loans that are Base Rate Loans
in the amount of such honored drawing, the proceeds of which shall be applied
directly by Administrative Agent to reimburse such Issuing Lender for the amount
of such honored drawing; and provided, further that, if for any reason proceeds
of Revolving Loans are not received by such Issuing Lender on the Reimbursement
Date in an amount equal to the amount of such honored drawing, Company shall
reimburse such Issuing Lender, on demand, in an amount in same day funds equal
to the excess of the amount of such honored drawing over the aggregate amount of
such Revolving Loans, if any, which are so received. Nothing in this subsection
3.3B shall be deemed to relieve any Lender from its obligation to make Revolving
Loans on the terms and conditions set forth in this Agreement, and Company shall
retain any and all rights it may have against any Lender resulting from the
failure of such Lender to make such Revolving Loans under this subsection 3.3B.
C. Payment by Lenders of Unreimbursed Amounts Paid Under Letters of
Credit.
(i) Payment by Lenders. In the event that Company shall fail for any
reason to reimburse any Issuing Lender as provided in subsection 3.3B in an
amount (calculated,
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in the case of a drawing under a Letter of Credit denominated in a currency
other than Dollars, by reference to the applicable Exchange Rate) equal to
the amount of any drawing honored by such Issuing Lender under a Letter of
Credit issued by it, such Issuing Lender shall promptly notify each other
Lender of the unreimbursed amount of such honored drawing and of such other
Lender's respective participation therein based on such Lender's Pro Rata
Share of the Revolving Loan Commitments. Each Lender shall make available
to such Issuing Lender an amount equal to its respective participation, in
Dollars and in same day funds, at the office of such Issuing Lender
specified in such notice, not later than 12:00 Noon (New York City time) on
the first business day (under the laws of the jurisdiction in which such
office of such Issuing Lender is located) after the date notified by such
Issuing Lender. In the event that any Lender fails to make available to
such Issuing Lender on such business day the amount of such Lender's
participation in such Letter of Credit as provided in this subsection 3.3C,
such Issuing Lender shall be entitled to recover such amount on demand from
such Lender together with interest thereon at the rate customarily used by
such Issuing Lender for the correction of errors among banks for three
Business Days and thereafter at the Base Rate. Nothing in this subsection
3.3C shall be deemed to prejudice the right of any Lender to recover from
any Issuing Lender any amounts made available by such Lender to such
Issuing Lender pursuant to this subsection 3.3C in the event that it is
determined by the final judgment of a court of competent jurisdiction that
the payment with respect to a Letter of Credit by such Issuing Lender in
respect of which payment was made by such Lender constituted gross
negligence or willful misconduct on the part of such Issuing Lender.
(ii) Distribution to Lenders of Reimbursements Received From Company.
In the event any Issuing Lender shall have been reimbursed by other Lenders
pursuant to subsection 3.3C(i) for all or any portion of any drawing
honored by such Issuing Lender under a Letter of Credit issued by it, such
Issuing Lender shall distribute to each other Lender which has paid all
amounts payable by it under subsection 3.3C(i) with respect to such honored
drawing such other Lender's Pro Rata Share of all payments subsequently
received by such Issuing Lender from Company in reimbursement of such
honored drawing when such payments are received. Any such distribution
shall be made to a Lender at its primary address set forth below its name
on the appropriate signature page hereof or at such other address as such
Lender may request.
D. Interest on Amounts Paid Under Letters of Credit.
(i) Payment of Interest by Company. Company agrees to pay to each
Issuing Lender, with respect to drawings honored under any Letters of
Credit issued by it, interest on the amount paid by such Issuing Lender in
respect of each such honored drawing from the date such drawing is honored
to but excluding the date such amount is reimbursed by Company (including
any such reimbursement out of the proceeds of Revolving Loans pursuant to
subsection 3.3B) at a rate equal to (a) for the period from the date such
drawing is honored to but excluding the Reimbursement Date, the Base Rate
plus the Applicable Base Rate Margin for Revolving Loans and (b)
thereafter, if the Loans and other Obligations are accruing interest at the
Default Rate pursuant to the provision of subsection 2.2E of this
Agreement, a rate which is 2% per annum in excess of the rate of
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interest otherwise payable under this Agreement with respect to Revolving
Loans that are Base Rate Loans. Interest payable pursuant to this
subsection 3.3D(i) shall be computed on the basis of a 365-day or 366-day
year, as the case may be, for the actual number of days elapsed in the
period during which it accrues and shall be payable on demand or, if no
demand is made, on the date on which the related drawing under a Letter of
Credit is reimbursed in full.
(ii) Distribution of Interest Payments by Issuing Lender. Promptly
upon receipt by any Issuing Lender of any payment of interest pursuant to
subsection 3.3D(i) with respect to a drawing honored under a Letter of
Credit issued by it, (a) such Issuing Lender shall distribute to each other
Lender, out of the interest received by such Issuing Lender in respect of
the period from the date such drawing is honored to but excluding the date
on which such Issuing Lender is reimbursed for the amount of such drawing
(including any such reimbursement out of the proceeds of Revolving Loans
pursuant to subsection 3.3B), the amount that such other Lender would have
been entitled to receive in respect of the letter of credit fee that would
have been payable in respect of such Letter of Credit for such period
pursuant to subsection 3.2 if no drawing had been honored under such Letter
of Credit, and (b) in the event such Issuing Lender shall have been
reimbursed by other Lenders pursuant to subsection 3.3C(i) for all or any
portion of such honored drawing, such Issuing Lender shall distribute to
each other Lender which has paid all amounts payable by it under subsection
3.3C(i) with respect to such honored drawing such other Lender's Pro Rata
Share of any interest received by such Issuing Lender in respect of that
portion of such honored drawing so reimbursed by other Lenders for the
period from the date on which such Issuing Lender was so reimbursed by
other Lenders to but excluding the date on which such portion of such
honored drawing is reimbursed by Company. Any such distribution shall be
made to a Lender at its primary address set forth below its name on the
appropriate signature page hereof or at such other address as such Lender
may request.
3.4 Obligations Absolute.
--------------------
The obligation of Company to reimburse each Issuing Lender for drawings
honored under the Letters of Credit issued by it and to repay any Revolving
Loans made by Lenders pursuant to subsection 3.3B and the obligations of Lenders
under subsection 3.3C(i) shall be unconditional and irrevocable and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances including any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right
which Company or any Lender may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), any Issuing Lender or other Lender or any other
Person or, in the case of a Lender, against Company, whether in connection
with this Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between Holdings or one
of its Subsidiaries and the beneficiary for which any Letter of Credit was
procured);
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(iii) any draft or 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) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Holdings or any
of its Subsidiarie s;
(v) any breach of this Agreement or any other Loan Document by any
party thereto;
(vi) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing; or
(vii) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing;
provided, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted bad faith, gross
negligence or willful misconduct of such Issuing Lender under the circumstances
in question (as determined by a final judgment of a court of competent
jurisdiction).
3.5 Indemnification; Nature of Issuing Lenders' Duties.
--------------------------------------------------
A. Indemnification. In addition to amounts payable as provided in
subsection 3.6, Company hereby agrees to protect, indemnify, pay and save
harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which such Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit by such Issuing
Lender, other than as a result of (a) the bad faith, gross negligence or willful
misconduct of such Issuing Lender as determined by a final judgment of a court
of competent jurisdiction or (b) subject to the following clause (ii), the
wrongful dishonor by such Issuing Lender of a proper demand for payment made
under any Letter of Credit issued by it or (ii) the failure of such Issuing
Lender to honor a drawing under any such Letter of Credit as a result of any act
or omission, whether rightful or wrongful, of any present or future de jure or
de facto government or governmental authority (all such acts or omissions herein
called "Governmental Acts").
B. Nature of Issuing Lenders' Duties. As between Company and any Issuing
Lender, Company assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by such Issuing Lender by, the respective beneficiaries
of such Letters of Credit. In furtherance and not in limitation of the
foregoing, such Issuing Lender shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) so long as such Issuing Lender
complies with its responsibilities under subsection
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3.3A, failure of the beneficiary of any such Letter of Credit to comply fully
with any conditions required in order to draw upon such Letter of Credit; (iv)
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not they be
in cipher; (v) errors in interpretation of technical terms; (vi) any loss or
delay in the transmission or otherwise of any document required in order to make
a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of such Issuing Lender, including any
Governmental Acts, and none of the above shall affect or impair, or prevent the
vesting of, any, of such Issuing Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by any Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to Company.
Notwithstanding anything to the contrary contained in this subsection 3.5,
Company shall retain any and all rights it may have against any Issuing Lender
for any liability arising out of the bad faith, gross negligence or willful
misconduct of such Issuing Lender, as determined by a final judgment of a court
of competent jurisdiction.
3.6 Increased Costs and Taxes Relating to Letters of Credit.
-------------------------------------------------------
Subject to the provisions of subsection 2.7B (which shall be controlling
with respect to the matters covered thereby), in the event that any Issuing
Lender or Lender shall determine (which determination shall, absent manifest
error, be final and conclusive and binding upon all parties hereto) that any
law, treaty or governmental rule, regulation or order, or any change therein or
in the interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or governmental authority, in each case that
becomes effective after the date hereof, or compliance by any Issuing Lender or
Lender with any guideline, request or directive issued or made after the date
hereof by any central bank or other governmental or quasi-governmental authority
(whether or not having the force of law):
(i) subjects such Issuing Lender or Lender (or its applicable
lending or letter of credit office) to any additional Tax (other than any
Tax on the overall net income of such Issuing Lender or Lender) with
respect to the issuing or maintaining of any Letters of Credit or the
purchasing or maintaining of any participations therein or any other
obligations under this Section 3, whether directly or by such being imposed
on or suffered by any particular Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve (including any
marginal, emergency, supplemental, special or other reserve), special
deposit, compulsory loan, FDIC insurance or similar requirement in respect
of any Letters of Credit issued by any Issuing Lender or participations
therein purchased by any Lender for which such Issuing Lender is not
otherwise compensated hereunder; or
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(iii) imposes any other condition (other than with respect to a Tax
matter) on or affecting such Issuing Lender or Lender (or its applicable
lending or letter of credit office) regarding this Section 3 or any Letter
of Credit or any participation therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Lender or Lender of agreeing to issue, issuing or maintaining any Letter of
Credit or agreeing to purchase, purchasing or maintaining any participation
therein or to reduce any amount received or receivable by such Issuing Lender or
Lender (or its applicable lending or letter of credit office) with respect
thereto; then, in any case, Company shall promptly pay to such Issuing Lender or
Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or amounts as may be necessary to compensate such Issuing
Lender or Lender for any such increased cost or reduction in amounts received or
receivable hereunder. Such Issuing Lender or Lender shall deliver to Company a
written statement, setting forth in reasonable detail the basis for calculating
the additional amounts owed to such Issuing Lender or Lender under this
subsection 3.6, which statement shall be conclusive and binding upon all parties
hereto absent manifest error.
SECTION 4.
CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of Letters of
Credit hereunder are subject to the satisfaction (or waiver in writing in
accordance with subsection 10.6) of the following conditions.
4.1 Closing Date.
------------
The closing (the "Closing") shall occur at the offices of Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇, Chicago, Illinois, on a date occurring on or prior to June 4, 2002
(the "Closing Date"), or as otherwise agreed to by the parties hereto, and on
the Closing Date the following conditions shall have been satisfied (or waived
in writing in accordance with subsection 10.6):
A. Second Amended and Restated Credit Agreement. The Agents shall have
received the Second Amended and Restated Credit Agreement duly executed and
delivered by Company and Holdings.
B. Amendment to Second Priority Term Loan Credit Agreement. Agents shall
have received a fully executed copy of the Second Priority Term Loan Credit
Agreement Amendment, which shall be in form and substance reasonably
satisfactory to the Administrative Agent.
C. Third Priority Term Loan Documents. Agents shall have received fully
executed copies of (i) the Third Priority Note Purchase Agreement, (ii) the
Third Priority Term Loan Note, (iii) each of the other Third Priority Term Loan
Documents and (iv) the ▇▇▇▇ Intercreditor Agreement, each of which shall be in
form and substance reasonably satisfactory to Administrative Agent and the
Requisite Lenders.
D. Reaffirmation Agreements and Reaffirmation of Intercreditor Agreement.
Administrative Agent shall have received fully executed copies of (i) the
Reaffirmation
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Agreements and the Reaffirmation of Intercreditor Agreement, each of which shall
be in form and substance reasonably satisfactory to Administrative Agent and the
Requisite Lenders
4.2 Conditions to Effectiveness of this Agreement.
---------------------------------------------
The effectiveness of this Agreement is, subject to prior or concurrent
satisfaction of the following conditions (or waived in writing in accordance
with subsection 10.6):
A. Loan Party Documents. Company, Holdings and the Requisite Lenders
shall have executed and delivered this Agreement and on or before the Effective
Date, Company shall, and shall cause each other Loan Party to, deliver to
Lenders (or to Administrative Agent for Lenders with sufficient originally
executed copies, where appropriate, for each Lender and its counsel) the
following with respect to Company or such Loan Party, as the case may be, each,
unless otherwise noted, dated the Effective Date:
(i) Certified copies of the Agreement of Limited Partnership or
Certificate or Articles of Incorporation of such Person, together with a
good standing certificate from the Secretary of State of its jurisdiction
of formation or incorporation and each other state in which such Person is
qualified as a foreign Person to do business (except, with respect to Loan
Parties, other than Company, any such other state or states in which
failure to be qualified could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect (provided that no
such state shall be a state in which real property of the applicable Loan
Party is located)) and, to the extent generally available, a certificate or
other evidence of good standing or existence as to payment of any
applicable franchise or similar taxes from the appropriate taxing authority
of each of such jurisdictions, each dated a recent date prior to the
Effective Date;
(ii) Copies of the Bylaws of each such Person that is a corporation,
certified as of the Effective Date by such Person's corporate secretary or
an assistant secretary;
(iii) Resolutions of the Board of Directors, general partner or other
authorizing body of such Person approving and authorizing the execution,
delivery and performance of the Loan Documents to which it is a party to be
executed on the Effective Date, certified as of the Effective Date by the
secretary or an assistant secretary or general partner of such Person as
being in full force and effect without modification or amendment;
(iv) Signature and incumbency certificates of the officers of such
Person executing, as of the Effective Date, any Loan Documents to which it
is a party;
(v) Executed originals of the Loan Documents not previously executed
to which such Person is a party; and
(vi) Such other documents as any Agent may reasonably request.
B. No Material Adverse Effect. Company shall have delivered to Agents an
Officers' Certificate, in form and substance reasonably satisfactory to Agents,
to the effect that except as disclosed (to the extent that any such disclosures
would constitute a Material Adverse
84
Effect) in the presentation by the Company to the Lenders at the meeting held in
New York, New York on March 20, 2002, no Material Adverse Effect has occurred
since December 31, 2000.
C. Corporate and Capital Structure, Ownership, Management, Etc.
(i) Corporate Structure. The organizational structure of Holdings
and its Subsidiaries shall be as set forth on Schedule 4.2C annexed hereto.
(ii) Capital Structure and Ownership. The capital structure and
ownership of Holdings and its Subsidiaries shall be reasonably satisfactory
to the Agents in all respects and as set forth on Schedule 4.2C annexed
hereto.
D. Necessary Governmental Authorizations and Consents. Holdings and
Company shall have obtained all Governmental Authorizations and all consents of
other Persons, in each case that are necessary in connection with the
transactions contemplated by the Loan Documents and the continued operation of
the business conducted by Holdings and its Subsidiaries, and each of the
foregoing shall be in full force and effect, in each case other than those the
failure to obtain or maintain which, either individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.
E. Security Interests in Personal and Mixed Property. The Company and
each other Loan Party shall have executed and delivered to the Administrative
Agent each of the Reaffirmation Agreements and the Reaffirmation of
Intercreditor Agreement. To the extent not otherwise satisfied pursuant to Loan
Documents and filings made prior to the Effective Date pursuant to the Existing
Credit Agreement, Agents shall have received evidence satisfactory to it that
each Loan Party shall have taken or caused to be taken all such actions,
executed and delivered or caused to be executed and delivered all such
agreements, documents and instruments, and made or caused to be made all such
filings and recordings that may be necessary or, in the reasonable opinion of
Agents, desirable in order to create in favor of Collateral Agent, for the
benefit of Lenders, a valid and (upon such filing and recording) perfected first
priority security interest (other than those Liens permitted pursuant to Section
7.2(A)(i), (viii) and (ix)) in the Collateral. Such actions shall include (but
not be limited to) the following:
(i) Schedules to Collateral Documents. Company shall deliver to
Administrative Agent accurate and complete schedules to all of the
applicable Collateral Documents.
(ii) Stock Certificates, Instruments and Certificates of Title.
Company shall certify that (a) all certificates (accompanied by irrevocable
undated stock powers, duly endorsed in blank and otherwise satisfactory in
form and substance to Collateral Agent) representing all capital stock or
other equity interests pledged pursuant to the Pledge and Security
Agreement have been delivered to the Collateral Agent and (b) all
promissory notes or other instruments (duly endorsed, where appropriate, in
a manner satisfactory to Collateral Agent) evidencing any Collateral have
been delivered to the Collateral Agent. Company shall deliver or certify
that it has delivered all certificates of title, indicating thereon the
Lien created under the Pledge and Security Agreement with respect to any
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item of equipment covered by a certificate of title issued under a statute
of any state requiring such indication of such security interest as a
condition of perfection thereof.
(iii) UCC Financing Statements and Fixture Filings. Company shall
certify that UCC financing statements and, where appropriate, fixture
filings, duly executed by each applicable Loan Party with respect to all
personal and mixed property Collateral of such Loan Party showing the
Collateral Agent as Secured Party, have been filed in all jurisdictions as
may be necessary or, in the opinion of Agents, desirable to perfect the
security interests created in such Collateral pursuant to the Collateral
Documents.
(iv) Blocked Account Agreements. Company shall deliver to the
Collateral Agent, from each of the banks listed on Schedule 7.12 annexed
hereto, Blocked Account Agreements, in form substantially similar to
Exhibit XXIII, with (a) Fleet with respect to the Fleet Main Account, the
Fleet Regional Disbursement Accounts and the Fleet Lockboxes, (b) The Chase
Manhattan Bank with respect to Account numbers 7241141212 and 7241141220,
and (c) Promistar with respect to Account numbers ▇▇▇▇▇▇▇▇ and 60127003.
(v) Real Property Mortgages. Company shall certify that the
Collateral Agent has been granted a first priority Lien on all interests in
real property owned by Holdings, Company or any other Loan Party, with the
exception of those properties identified on Schedule 5.16.
(vi) Vessel Mortgages. Company shall have delivered to
Administrative Agent a certification by Company, in form and substance
satisfactory to the Collateral Agent, verifying that the Collateral Agent
has a first priority Lien on the vessels identified on Schedule 4.2E(vi).
F. Repayment of Swing Line Loans. On the Effective Date, immediately
before and after giving effect to any borrowings hereunder on such date, no
Swing Line Loans shall be outstanding.
G. No Event of Default. Company shall have delivered to Administrative
Agent an Officer's Certificate, in form and substance reasonably satisfactory to
Administrative Agent, to the effect that on and after the Effective Date, no
event has occurred and is continuing that would constitute an Event of Default
or Potential Event of Default under this Agreement.
H. Financial Projections; Budget; 13-Week Cash Flows. The Administrative
Agent, the Syndication Agent and the Lenders shall have received (i) financial
projections, reasonably satisfactory in form and substance to the Administrative
Agent and the Syndication Agent, for Company and its Subsidiaries for the period
from the Effective Date through December 31, 2003, and (ii) a Budget, in a form
reasonably satisfactory to the Administrative Agent, the Syndication Agent and
the Requisite Lenders, reflecting the Company's projected cash flows on a
consolidated basis through and including July 30, 2002, in each case for
informational purposes.
I. Solvency Assurances. On the Effective Date, Agents shall have received
a Financial Condition Certificate dated the Effective Date, substantially in the
form of Exhibit XI
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annexed hereto (with such changes thereto as shall be approved by Agents in the
exercise of their reasonable discretion) and with appropriate attachments, in
each case demonstrating that, after giving effect to the consummation of the
transactions contemplated by the Loan Documents, Holdings and its Subsidiaries
will be Solvent.
J. Opinions of Counsel to Loan Parties. Lenders and their respective
counsel shall have received (i) originally executed copies of one or more
favorable written opinions of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for Loan Parties, and of
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC, special Pennsylvania
counsel for Loan Parties, in form and substance reasonably satisfactory to
Agents and their counsel, dated as of the Effective Date and setting forth
substantially the matters in the opinions designated in Exhibit VII annexed
hereto and as to such other matters as or Agents and acting on behalf of Lenders
may reasonably request and (ii) evidence satisfactory to Agents that Loan
Parties have requested such counsel to deliver such opinions to Lenders.
K. Fees and Expenses. Company shall have paid to Agents all fees and
expenses due and payable on or prior to the Effective Date, including, without
limitation, all fees owing to the Administrative Agent, the Syndication Agent
and ▇▇▇▇▇▇▇▇, all unreimbursed reasonable legal fees and expenses of the
Administrative Agent (including allocable costs of the Administrative Agent's
in-house counsel) and the Syndication Agent and all other reasonable expenses
for which invoices have been presented on or before the Effective Date.
L. Representations and Warranties; Performance of Agreements. Company
shall have delivered to Agents an Officers' Certificate, in form and substance
reasonably satisfactory to Agents, to the effect that the representations and
warranties in Section 5 hereof are true, correct and complete in all material
respects on and as of the Effective Date to the same extent as though made on
and as of that date (or, to the extent such representations and warranties
specifically relate to an earlier date, that such representations and warranties
were true, correct and complete in all material respects on and as of such
earlier date).
M. Borrowing Base Certificate. Company shall have delivered a Borrowing
Base Certificate, in form and substance reasonably satisfactory to the
Administrative Agent, its counsel and the Requisite Lenders, dated as of April
30, 2002 demonstrating an Adjusted Borrowing Base Amount as of such date of not
less than $530,360,636.
N. $8,000,000 Cash Received from ▇▇▇▇. Agents shall have received
sufficient evidence showing that the Company has received $8,000,000 in cash
from the proceeds of a term loan made by ▇▇▇▇/ACR, L.L.C. pursuant to the Third
Priority Term Loan Documents and such proceeds have been deposited into the ▇▇▇▇
Cash Collateral Account.
O. Cash Management and Deposit Account System. The Company's current cash
management system and deposit account system shall be in form and substance
reasonably satisfactory to the Administrative Agent and the Requisite Lenders.
P. Due Diligence Documentation. The Company shall have complied with all
reasonable due diligence, document or data requests from the Administrative
Agent, its counsel, the Syndication Agent or ▇▇▇▇▇▇▇▇.
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Q. Lenders' Approval. Each of the Requisite Lenders shall have obtained
all necessary internal approvals and authorizations to enter into this
Agreement. Each Lender, by delivering its signature page to this Agreement,
shall be deemed to have acknowledged receipt of, and consented to and approved
(by obtaining any and all necessary internal approvals or authorizations to
enter into this Agreement), each Loan Document and each other document required
to be approved by Agents and Requisite Lenders on or prior to the Effective
Date.
The Effective Date shall be deemed to have occurred when: (i) Company has
delivered to Agents an Officer's Certificate, in form and substance reasonably
satisfactory to Agents, to the effect that all conditions precedents in
subsections A through P of this Section 4.2 have been satisfied (or waived in
writing in accordance with subsection 10.6), and (ii) the Administrative Agent
has released the Lenders' signature pages to this Agreement.
4.3 Conditions to All Loans.
-----------------------
The obligations of Lenders to make Loans on each Funding Date are subject
to the following further conditions precedent:
A. Administrative Agent shall have received on or before that Funding
Date, in accordance with the provisions of subsection 2.1B, an originally
executed Notice of Borrowing, in each case signed by the chief executive
officer, chief operating officer, president, the principal financial officer,
the principal accounting officer or the treasurer of Company or by any
authorized employee of Company designated by any of the above-described officers
on behalf of Company in a writing delivered to Administrative Agent.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in the
other Loan Documents shall be true, correct and complete in all material
respects on and as of that such date to the same extent as though made on
and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true, correct and complete
in all material respects on and as of such earlier date;
(ii) No event shall have occurred and be continuing or would result
from the consummation of the borrowing contemplated by such Notice of
Borrowing that would constitute an Event of Default or a Potential Event of
Default ;
(iii) After making the Loans requested on such Funding Date, the Total
Utilization of Commitments shall not exceed the Adjusted Borrowing Base
Amount then in effect;
(iv) The making of the Loans requested on such Funding Date shall not
violate any law including Regulation T, Regulation U or Regulation X of the
Board of Governors of the Federal Reserve System; and
(v) There shall not be pending or, to the knowledge of Holdings or
Company, threatened, any action, suit, proceeding, governmental
investigation or arbitration against
88
or affecting Holdings or any of its Subsidiaries or any property of
Holdings or any of its Subsidiaries that has not been disclosed by Holdings
or Company in writing pursuant to subsection 5.6 or 6.1(x) prior to the
making of the last preceding Loans (or, in the case of the initial Loans,
prior to the execution of this Agreement), and there shall have occurred no
development not so disclosed in any such action, suit, proceeding,
governmental investigation or arbitration so disclosed, that, in either
event, in the reasonable opinion of Administrative Agent or of Requisite
Lenders, would be expected to have a Material Adverse Effect or be
inconsistent with the financial statements, balance sheets or financial
projections delivered in accordance with subsection 4.2; and no injunction
or other restraining order shall have been issued and no hearing to cause
an injunction or other restraining order to be issued shall be pending or
noticed with respect to any action, suit or proceeding seeking to enjoin or
otherwise prevent the consummation of, or to recover any damages or obtain
relief as a result of, the transactions contemplated by this Agreement or
the making of Loans hereunder.
4.4 Conditions to Letters of Credit.
-------------------------------
The issuance of any Letter of Credit hereunder (other than the Existing
Letters of Credit) (whether or not the applicable Issuing Lender is obligated to
issue such Letter of Credit) is subject to the following conditions precedent:
A. On or before the date of issuance of the initial Letter of Credit
pursuant to this Agreement, the initial Loans shall have been made.
B. On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the provisions of
subsection 3.1B(i), an originally executed Notice of Issuance of Letter of
Credit, in each case signed by the chief executive officer, chief operating
officer, president, the principal financial officer, the principal accounting
officer or the treasurer of Company or by any authorized employee of Company
designated by any of the above-described officers on behalf of Company in a
writing delivered to Administrative Agent, together with all other information
specified in subsection 3.1B(i) and such other documents or information as the
applicable Issuing Lender may reasonably require in connection with the issuance
of such Letter of Credit.
C. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.3B shall be satisfied to the same extent as
if the issuance of such Letter of Credit were the making of a Loan and the date
of issuance of such Letter of Credit were a Funding Date.
4.5 Failure to Meet Conditions to Effectiveness.
-------------------------------------------
If any of the conditions precedent listed in subsection 4.1 are not
completed to the satisfaction of the Agents on or before 5:00 p.m. (New York
time) on June [__], 2002, then without any further notice or action of any
Lender, this Agreement shall be null and void and of no further force and effect
whatsoever and the Agents and the Lenders shall have no obligations or
liabilities hereunder, provided that the Existing Credit Agreement and the other
Loan
89
Documents in effect shall then remain in full force and effect and the parties
shall have all rights, obligations and liabilities thereunder.
SECTION 5.
HOLDINGS' AND COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make the
Loans, to induce Issuing Lenders to issue Letters of Credit and to induce other
Lenders to purchase participations therein, Holdings and Company represent and
warrant to each Lender, on the date of this Agreement, on each Funding Date and
on the date of issuance of each Letter of Credit, that the following statements
are true, correct and complete:
5.1 Organization, Powers. Qualification. Good Standing, Business and
----------------------------------------------------------------
Subsidiaries.
------------
A. Organization and Powers. Each Corporate Loan Party is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and each Partnership Loan Party is a duly
organized and validly existing partnership under the laws of its jurisdiction of
formation and is in good standing in such jurisdiction in each case as of the
Effective Date as specified in Schedule 5.1 annexed hereto. Each Loan Party has
all requisite corporate or partnership (as applicable) power and authority to
own and operate its properties, to carry on its business as now conducted and as
proposed to be conducted, to enter into the Loan Documents to which it is a
party and to carry out the transactions contemplated thereby.
B. Qualification and Good Standing. Each Corporate Loan Party is
qualified to do business and in good standing, and each Partnership Loan Party
is authorized as a foreign partnership to do business, in every jurisdiction
where its assets are located and wherever necessary to carry out its business
and operations, except in jurisdictions where the failure to be so qualified or
in good standing has not had and will not have a Material Adverse Effect.
C. Conduct of Business. Holdings and its Subsidiaries are engaged only in
the businesses permitted to be engaged in pursuant to subsection 7.13.
D. Subsidiaries. All of the Subsidiaries of Holdings as of the Effective
Date are identified in Schedule 5.1 annexed hereto. The capital stock or other
equity interests of each of Holdings' Subsidiaries any portion of which is
pledged under the Collateral Documents is duly authorized, validly issued, fully
paid and nonassessable and none of such capital stock or other equity interests
constitutes Margin Stock. The limited and general partnership interests of each
of the Subsidiaries identified in Schedule 5.1 annexed hereto which are limited
partnerships are duly and validly issued. Each of the Subsidiaries of Holdings
is duly organized or formed, validly existing and in good standing under the
laws of its respective jurisdiction of organization or formation, has all
requisite corporate, limited liability company or partnership power and
authority to own and operate its properties and to carry on its business as now
conducted and as proposed to be conducted, and is qualified to do business and
in good standing in every jurisdiction where its assets are located and wherever
necessary to carry out its business and operations, in each case except where
failure to be so qualified or in good standing or a lack of such corporate,
limited liability company or partnership power and authority has not had and
will
90
not have a Material Adverse Effect. Schedule 5.1 annexed hereto (as so
supplemented) correctly sets forth, as of the Effective Date, the ownership
interest of Holdings and each of its Subsidiaries in each of the Subsidiaries of
Holdings identified therein.
5.2 Authorization of Borrowing, etc.
-------------------------------
A. Authorization of Borrowing. The execution, delivery and performance of
the Loan Documents have been duly authorized by all necessary corporate, limited
liability company and/or partnership (as applicable) action on the part of each
Loan Party that is a party thereto.
B. No Conflict. The execution, delivery and performance by Loan Parties
of the Loan Documents to which they are parties and the consummation of the
transactions contemplated by the Loan Documents do not (i) violate any provision
of any law or any governmental rule or regulation applicable to Holdings or any
of its Subsidiaries, the Certificate or Articles of Incorporation or Bylaws (or
other analogous organizational document) of Holdings or any of its Subsidiaries
or any order, judgment or decree of any court or other agency of government
binding on Holdings or any of its Subsidiaries, (ii) conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any Contractual Obligation of Holdings or any of its Subsidiaries, (iii)
result in or require the creation or imposition of any Lien upon any of the
properties or assets of Holdings or any of its Subsidiaries (other than any
Permitted Encumbrances or Liens, created under any of the Loan Documents in
favor of Collateral Agent) or (iv) require any approval of stockholders or
partners or any approval or consent of any Person under any Contractual
Obligation of Holdings or any of its Subsidiaries, except for such approvals or
consents which will be obtained on or before the Effective Date and disclosed in
writing to Lenders or the failure of which to obtain could not reasonably be
expected to have a Material Adverse Effect.
C. Governmental Consents. The execution, delivery and performance by Loan
Parties of the Loan Documents to which they are parties and the consummation of
the transactions contemplated by the Loan Documents do not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body except to the extent obtained or made and except for those filings
necessary to perfect Liens under the Collateral Documents, other than filings to
effect releases of Liens on or promptly after the Effective Date and other
filings made in the ordinary conduct of business. The execution, delivery and
performance by Loan Parties of the Related Agreements to which they are parties
and the consummation of the transactions contemplated by such Related Agreements
in the manner set forth therein do not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any federal, state or
other governmental authority or regulatory body except (i) to the extent
obtained or made or (ii) where the failure to obtain or make any of the
foregoing, individually or in the aggregate, is not reasonably likely to have a
Material Adverse Effect.
D. Binding Obligation. Each of the Loan Documents has been duly executed
and delivered by each Loan Party that is a party thereto and is the legally
valid and binding obligation of such Loan Party, enforceable against such Loan
Party in accordance with its respective terms, except as may be limited by
bankruptcy, insolvency, reorganization,
91
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability.
E. Valid Issuance of Partnership Units, Senior Notes and Senior Discount
Debentures.
(i) Common Units and Preferred Units. The Common Units and Preferred
Units have been duly and validly issued and fully paid. The issuance and
sale of such Common Units and Preferred Units were either (a) registered or
qualified under applicable federal and state securities laws or (b) exempt
therefrom.
(ii) Senior Notes. The Senior Notes have been duly issued by the
Company and paid for and are the legally valid and binding obligations of
Company enforceable against Company in accordance with their respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights
generally or by equitable principles relating to enforceability. The Senior
Notes were, when issued, either (a) registered or qualified under
applicable federal and state securities laws or (b) exempt therefrom.
(iii) Senior Discount Debentures. The Senior Discount Debentures have
been duly issued by Holdings and paid for and are the legally valid and
binding obligations of Holdings, enforceable against Holdings in accordance
with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or
limiting creditors' rights generally or by equitable principles relating to
enforceability. The Senior Discount Debentures were, when issued, either
(a) registered or qualified under applicable federal and state securities
laws or (b) exempt therefrom.
(iv) Preferred Units. The Series B Preferred Units issued on June 30,
1999 have been duly and validly issued and fully paid on such date. The
issuance and sale of such Series B Preferred Units were either (a)
registered or qualified under applicable federal and state securities laws
or (b) exempt therefrom.
5.3 Financial Condition.
-------------------
Company has heretofore delivered to Lenders, at Lenders' request, the
following financial statements and information: (i) the audited consolidated
balance sheets of Company and its Subsidiaries for each of Fiscal Years 1999 and
2000 and the related consolidated statements of income, partner's capital, and
cash flows of Company and its Subsidiaries for each such Fiscal Year and (ii)
the unaudited consolidated and consolidating balance sheets of Company and its
Subsidiaries for each of the months of January and February 2002 and the related
unaudited consolidated statements of income, partner's capital, and cash flows
of Company and its Subsidiaries for each such period (except for statements of
cash flows for each such monthly period). All such statements were prepared in
conformity with GAAP and fairly present, in all material respects, the financial
position (on a consolidated basis) of the entities described in such financial
statements as at the respective dates thereof and the results of operations and
cash flows (on a consolidated basis) of the entities described therein for each
of the periods then ended, subject, in the case of any such unaudited financial
statements, to
92
changes resulting from audit and normal year-end adjustments and the absence of
footnotes. On the Effective Date, Holdings and Company do not (and will not
following the funding of the initial Loans) have any Contingent Obligation,
contingent liability or liability for taxes, long-term lease or unusual forward
or long-term commitment that is not reflected in the foregoing financial
statements or in the pro forma balance sheet delivered pursuant to subsection
4.2, or in the financial projections delivered pursuant to subsection 4.2 or
reflected on Schedule 5.3 or the most recent financial statements delivered by
Company pursuant to subsection 6.1 of the Existing Credit Agreement, and which
in any such case is material in relation to the business, operations,
properties, assets, condition (financial or otherwise) of Holdings and any of
its Subsidiaries, taken as a whole.
5.4 No Material Adverse Change.
--------------------------
Except as disclosed (to the extent that any such disclosures would
constitute a Material Adverse Effect) in the presentation by the Company to the
Lenders at the meeting held in New York, New York on March 20, 2002, no event or
change has occurred that has caused or evidences, either in any case or in the
aggregate, a Material Adverse Effect since December 31, 2000; provided, however,
if the Company delivers to the Administrative Agent the audited financial
statements of Holdings and its Subsidiaries, together with the unqualified
opinion of the Independent Public Accountant, in accordance with Section
6.1(iii) within ten days following the Effective Date, the foregoing
representation and warranty shall be amended to read as follows: "Since December
31, 2001, no event or change has occurred that has caused or evidences, either
individually or in the aggregate, a Material Adverse Effect".
5.5 Title to Properties; Liens; Real Property.
-----------------------------------------
A. Title to Properties; Liens. Holdings and its Subsidiaries have (i)
good, sufficient and legal title to (in the case of fee interests in real
property), valid leasehold interests in (in the case of leasehold interests in
real or personal property), valid licenses in (in the case of licensed
intangible properties), or (ii) good title to (in the case of all other personal
property), all of their respective material properties and assets reflected in
the most recent financial statements referred to in subsection 5.3 or in the
most recent financial statements delivered pursuant to subsection 6.1 of the
Existing Credit Agreement or in the most recent financial statements delivered
pursuant to subsection 6.1, in each case subject to Permitted Encumbrances and
Liens permitted under subsection 7.2 and except for assets described on Schedule
5.5A annexed hereto and assets disposed of since the date of such financial
statements in the ordinary course of business or as otherwise permitted under
subsection 7.7. Except as otherwise permitted by this Agreement, all such
properties and assets are free and clear of Liens.
B. Real Property. As of the Effective Date, Schedule 5.5 annexed hereto
contains a true, accurate and complete list of (i) all Real Property Assets
owned in fee simple by any Loan Party and (ii) all leases, subleases or
assignments of leases (together with all amendments, modifications, supplements,
renewals or extensions of any thereof) affecting each Real Property Asset of any
Loan Party, regardless of whether such Loan Party is the landlord or tenant
(whether directly or as an assignee or successor in interest) under such lease,
sublease or assignment. As of the Effective Date, except as specified in
Schedule 5.5 annexed hereto, each agreement referenced in clause (ii) of the
immediately preceding sentence is in full force and
93
effect and Holdings and Company do not have knowledge of any default that has
occurred and is continuing thereunder (except where the consequences, direct or
indirect, of such default or defaults, if any, would not reasonably be expected
to have a Material Adverse Effect), and each such material agreement constitutes
the legally valid and binding obligation of each applicable Loan Party,
enforceable against such Loan Party in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or by
equitable principles.
5.6 Litigation; Adverse Facts.
-------------------------
There are no actions, suits, proceedings, arbitrations or governmental
investigations (whether or not purportedly on behalf of Holdings or any of its
Subsidiaries) at law or in equity, or before or by any federal, state, municipal
or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign (including any Environmental Claims) that
are pending or, to the knowledge of Holdings or Company, threatened against or
affecting Holdings or any of its Subsidiaries or any property of Holdings or any
of its Subsidiaries and that, individually or in the aggregate, would reasonably
be expected to result in a Material Adverse Effect. Neither Holdings nor any of
its Subsidiaries (i) is in violation of any applicable laws (including
Environmental Laws) that, individually or in the aggregate, would reasonably be
expected to result in a Material Adverse Effect, or (ii) is subject to or in
default with respect to any final judgments, writs, injunctions, decrees, rules
or regulations of any court or any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, that, individually or in the aggregate, would reasonably be
expected to result in a Material Adverse Effect.
5.7 Payment of Taxes.
----------------
Except to the extent permitted by subsection 6.3, all federal, state and
other material tax returns and reports of Holdings and its Subsidiaries required
to be filed by any of them have been timely filed, and all taxes shown on such
tax returns to be due and payable and all assessments, fees and other
governmental charges upon Holdings and its Subsidiaries and upon their
respective properties, assets, income, businesses and franchises which are due
and payable have been paid when due and payable. Holdings and Company know of no
proposed material tax assessment against Holdings or any of its Subsidiaries
which is not being actively contested by Holdings or such Subsidiary in good
faith and by appropriate proceedings; provided that such reserves or other
appropriate provisions, if any, as shall be required in conformity with GAAP
shall have been made or provided therefor.
5.8 Performance of Agreements; Materially Adverse Agreements.
--------------------------------------------------------
A. Neither Holdings nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any of its Contractual Obligations, and no condition
exists that, with the giving of notice or the lapse of time or both, would
constitute such a default, except where the consequences, direct or indirect, of
such default or defaults, if any, would not have a Material Adverse Effect.
94
B. Neither Holdings nor any of its Subsidiaries is a party to or is
otherwise subject to any agreements or instruments or any charter or other
internal restrictions which, individually or in the aggregate, compliance with
which could reasonably be expected to result in a Material Adverse Effect.
5.9 Governmental Regulation.
-----------------------
Neither Holdings nor any of its Subsidiaries is subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act or the
Investment Company Act of 1940 or under any other federal or state statute or
regulation which may limit its ability to incur Indebtedness or which may
otherwise render all or any portion of the Obligations unenforceable.
5.10 Securities Activities.
---------------------
A. Neither Holdings nor any of its Subsidiaries is engaged principally,
or as one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying any Margin Stock.
B. Following application of the proceeds of each Loan, not more than 25%
of the value of the assets (either of Company only or of Holdings and its
Subsidiaries on a consolidated basis) subject to the provisions of subsection
7.2 or 7.7 or subject to any restriction contained in any agreement or
instrument, between Company and any Lender or any Affiliate of any Lender,
relating to Indebtedness and within the scope of subsection 8.2, will be Margin
Stock.
5.11 Employee Benefit Plans.
----------------------
A. Holdings and each of its Subsidiaries are in compliance in all
material respects with all applicable provisions and requirements of ERISA and
the regulations and published interpretations thereunder with respect to each of
the respective Employee Benefit Plans, and have performed all their obligations
under each of the respective Employee Benefit Plans. Each Employee Benefit Plan
which is intended to qualify under Section 401(a) of the Internal Revenue Code
is so qualified.
B. No ERISA Event has occurred or is reasonably expected to occur which
has or would reasonably be expected to result in a liability to Holdings or any
of its Subsidiaries in excess of $5,000,000.
C. Except to the extent required under Section 4980B of the Internal
Revenue Code, the aggregate liabilities with respect to health or welfare
benefits (through the purchase of insurance or otherwise) provided or promised
for any retired or former employee of Holdings or any of its Subsidiaries do not
exceed $5,000,000.
D. As of the most recent valuation date for any Pension Plan, the amount
of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA),
individually or in the aggregate for all Pension Plans, does not exceed
$5,000,000.
E. The liability consisting of actual withdrawal liability which has
been, or with respect to potential withdrawal liability, which is reasonably
likely to be, imposed on Holdings,
95
its Subsidiaries and their respective ERISA Affiliates with respect to
withdrawal from Multiemployer Plans, based on information available pursuant to
Section 4221(e) of ERISA, does not exceed $15,000,000.
5.12 Certain Fees.
------------
No broker's or finder's fee or commission will be payable with respect to
this Agreement or any of the transactions contemplated hereby on the date hereof
and Holdings and Company hereby indemnifies Lenders against, and agrees that it
will hold Lenders harmless from, any claim, demand or liability for any such
broker's or finder's fees alleged to have been incurred in connection herewith
or therewith and any expenses (including reasonable fees, expenses and
disbursements of counsel) arising in connection with any such claim, demand or
liability.
5.13 Environmental Protection.
------------------------
(i) Neither Holdings nor any of its Subsidiaries nor any of their
respective Facilities or operations are subject to any outstanding written
order, consent decree or settlement agreement with any Person relating to
(a) any Environmental Law, (b) any Environmental Claim, or (c) any
Hazardous Materials Activity that, in the case of (a), (b) or (c),
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect;
(ii) Neither Holdings nor any of its Subsidiaries has received any
letter or written request for information from any governmental agency
under Section 104 of the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. ss. 9604) or any comparable
state law the subject of which would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(iii) To Holdings' and Company's knowledge, there are no and have been
no conditions, occurrences, or Hazardous Materials Activities which could
reasonably be expected to form the basis of an Environmental Claim against
Holdings or any of its Subsidiaries that, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect;
(iv) Holdings and its Subsidiaries maintain an environmental
management system designed to maintain compliance in all material respects
with Environmental Laws and correct any incidents of non-compliance;
(v) Compliance with all current or reasonably foreseeable future
requirements pursuant to or under Environmental Laws would not,
individually or in the aggregate, reasonably be expected to give rise to a
Material Adverse Effect; and
(vi) No event or condition has occurred or is occurring with respect
to Holdings or any of its Subsidiaries relating to any Environmental Law,
any Release of Hazardous Materials, or any Hazardous Materials Activity
which individually or in the aggregate has had or would reasonably be
expected to have a Material Adverse Effect.
5.14 Employee Matters.
----------------
96
There is no strike or work stoppage in existence or threatened involving
Holdings or any of its Subsidiaries that could reasonably be expected to have a
Material Adverse Effect.
5.15 Solvency.
--------
Each Loan Party is and, upon the incurrence of any Obligations by such
Loan Party on any date on which this representation is made, will be, Solvent.
5.16 Matters Relating to Collateral.
------------------------------
A. Creation, Perfection and Priority of Liens. Except as otherwise set
forth therein, or in Schedule 5.16, of this Agreement the execution and delivery
of the Collateral Documents by Loan Parties, together with (i) the actions taken
on or prior to the date hereof pursuant to subsections 4.2, 6.8 and 6.9 or
contemplated to be taken thereby and (ii) the delivery to Collateral Agent of
any Pledged Collateral not delivered to Collateral Agent at the time of
execution and delivery of the applicable Collateral Document (all of which
Pledged Collateral shall have been so delivered) are effective to create in
favor of Collateral Agent for the benefit of Lenders, as security for the
respective Secured Obligations (as defined in the applicable Collateral Document
in respect of any Collateral), a valid and perfected first priority Lien (other
than those Liens permitted pursuant to Section 7.2(A)(i), (viii) and (ix)) on
all of the Collateral, in each case subject to Permitted Encumbrances and Liens
permitted under subsection 7.2, and, except as otherwise set forth in the
Collateral Documents, all filings and other actions necessary or desirable to
perfect and maintain the perfection and first priority status of such Liens have
been duly made or taken and remain in full force and effect (other than the
filing of UCC financing continuation statements).
B. Governmental Authorizations. No authorization, approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for either (i) the pledge or grant by any Loan Party
of the Liens purported to be created in favor of Collateral Agent pursuant to
any of the Collateral Documents or (ii) the exercise by Collateral Agent of any
rights or remedies in respect of any Collateral (whether specifically granted or
created pursuant to any of the Collateral Documents or created or provided for
by applicable law), except for filings or recordings contemplated by subsection
5.16A and except as may be required, in connection with the disposition of any
Pledged Collateral, by laws generally affecting the offering and sale of
securities or vessels.
C. Absence of Third-Party Filings. Except such as may have been filed in
favor of Collateral Agent as contemplated by subsection 5.16A, (i) no effective
UCC financing statement, fixture filing or other instrument similar in effect
covering all or any part of the Collateral is on file in any filing or recording
office, except with respect to Permitted Encumbrances and Liens permitted under
subsection 7.2A, and (ii) no effective filing covering all or any part of the IP
Collateral is on file in the PTO.
D. Margin Regulations. The pledge of the Pledged Collateral pursuant to
the Collateral Documents does not violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
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E. Information Regarding Collateral. All information supplied to
Collateral Agent or Administrative Agent by or on behalf of any Loan Party with
respect to any of the Collateral (in each case taken as a whole with respect to
any particular Collateral) is accurate and complete in all material respects as
of the date supplied.
5.17 Disclosure.
----------
All representations and warranties of Holdings or any of its Subsidiaries
and all factual information concerning Holdings and its Subsidiaries contained
in any Loan Document or in any other document, certificate or written statement
furnished to Lenders by or on behalf of Holdings or any of its Subsidiaries
(other than budgets, projections or pro forma financial information) for use in
connection with the transactions contemplated by this Agreement, taken as a
whole, are true and correct in all material respects as of the date made and do
not omit to state a material fact (known to Holdings or Company, in the case of
any document not furnished by it) necessary in order to make the statements
contained herein or therein (taken as a whole) not materially misleading as of
the date made in light of the circumstances in which the same were made as at
the time made. Any projections and pro forma financial information contained in
such materials are based upon good faith estimates and assumptions believed by
Holdings and Company to be reasonable at the time made, it being recognized by
Lenders that such projections as to future events are not to be viewed as facts
and that actual results during the period or periods covered by any such
projections may materially differ from the projected results. There are no facts
known (or which should upon the reasonable exercise of diligence be known) to
Holdings or Company (other than matters of a general economic nature) that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect and that have not been disclosed herein or in such other
documents, certificates and statements furnished to Lenders for use in
connection with the transactions contemplated hereby.
5.18 Subordination of Shareholder Subordinated Notes.
-----------------------------------------------
The subordination provisions of any Shareholder Subordinated Notes or
other Subordinated Indebtedness are enforceable against the holders thereof, and
the Loans and other Obligations hereunder are and will be within the definition
of "Senior Indebtedness" or "Senior Debt", or similar term, as applicable,
included in such provisions.
SECTION 6.
HOLDINGS' AND COMPANY'S AFFIRMATIVE COVENANTS
Holdings and Company covenant and agree that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations (other than inchoate indemnification obligations
with respect to claims, losses or liabilities which have not yet arisen and are
not yet due and payable) and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Holdings and Company shall perform, and shall cause each of their Subsidiaries
to perform, all covenants in this Section 6.
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6.1 Financial Statements and Other Reports.
--------------------------------------
Holdings will maintain, and cause each of its Subsidiaries to maintain, a
system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements in conformity
with GAAP. Company will deliver to Administrative Agent, with sufficient copies
for each Lender (and Administrative Agent will, after receipt thereof, deliver
to each Lender):
(i) Monthly Financials: as soon as available and in any event within
30 days after the end of each calendar month, within 45 days of each month
that is the last month of any Fiscal Quarter, and within 90 days of such
last month of Fiscal Quarter if such month is also the last month of any
Fiscal Year, the consolidated balance sheet of Holdings and its
Subsidiaries as at the end of such month and the related consolidated
statements of income of Holdings and its Subsidiaries, (together with
information relating to Consolidated Capital Expenditures and Permitted
Asset Sales made during such month), for such month and for the period from
the beginning of the then current Fiscal Year to the end of such month,
setting forth in each case in comparative form the corresponding figures
for the corresponding periods of the previous Fiscal Year and the
corresponding figures from the Financial Plan for the current Fiscal Year,
to the extent prepared on a monthly basis, all in reasonable detail and
certified by the principal financial officer or principal accounting
officer of Holdings that they fairly present, in all material respects, the
financial condition of Holdings and its Subsidiaries as at the dates
indicated and the results of their operations for the periods indicated,
subject to changes resulting from audit and normal year-end and quarterly
adjustments and the absence of footnotes;
(ii) Quarterly Financials: as soon as available and in any event
within 45 days after the end of the first, second and third Fiscal Quarter
of each Fiscal Year, (a) the consolidated balance sheet of Holdings and its
Subsidiaries as at the end of such Fiscal Quarter and the related
consolidated statements of income and cash flows of Holdings and its
Subsidiaries for such Fiscal Quarter and for the period from the beginning
of the then current Fiscal Year to the end of such Fiscal Quarter, setting
forth in each case in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year and the corresponding
figures from the Financial Plan for the current Fiscal Year, all in
reasonable detail and certified by the principal financial officer or
principal accounting officer of Holdings that they fairly present, in all
material respects, the financial condition of Holdings and its Subsidiaries
as at the dates indicated and the results of their operations and their
cash flows for the periods indicated, subject to changes resulting from
audit and normal year-end adjustments and the absence of footnotes, and (b)
a narrative report describing the operations of Holdings and its
Subsidiaries in the form prepared for presentation to senior management for
such Fiscal Quarter and for the period from the beginning of the then
current Fiscal Year to the end of such Fiscal Quarter; provided, however,
that Company may deliver to Administrative Agent in lieu of such narrative
report copies of the unaudited quarterly report filed by Holdings with the
Securities and Exchange Commission on Form 10-Q in respect of such Fiscal
Quarter;
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(iii) Year-End Financials: as soon as available and in any event
within 105 days after the end of each Fiscal Year, (a) the consolidated
balance sheet of Holdings and its Subsidiaries as at the end of such Fiscal
Year and the related consolidated statements of income, partner's capital,
and cash flows of Holdings and its Subsidiaries for such Fiscal Year,
setting forth in each case in comparative form the corresponding figures
for the previous Fiscal Year and the corresponding figures from the
Financial Plan for the Fiscal Year covered by such financial statements,
all in reasonable detail and certified by the principal financial officer
or principal accounting officer of Holdings that they fairly present, in
all material respects, the financial condition of Holdings and its
Subsidiaries as at the dates indicated and the results of their operations
and their cash flows for the periods indicated, (b) a narrative report
describing the operations of Holdings and its Subsidiaries in the form
prepared for presentation to senior management for such Fiscal Year,
provided, however, that Company may deliver to Administrative Agent in lieu
of such narrative report copies of the report filed by Holdings with the
Securities and Exchange Commission on Form 10-K in respect of such Fiscal
Year, and (c) in the case of such consolidated financial statements, a
report thereon of an Independent Public Accountant, which report shall be
unqualified, shall express no doubts about the ability of Holdings and its
Subsidiaries to continue as a going concern, and shall state that such
consolidated financial statements fairly present, in all material respects,
the consolidated financial position of Holdings and its Subsidiaries as at
the dates indicated and the results of their operations and their cash
flows for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except as otherwise disclosed in such
financial statements) and that the examination by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards, and (d) to the
extent available, information reflecting utilization rates of the Cranes
and Lifting Equipment and Excavation Equipment for such period;
(iv) Monthly Budget Report: on or before the tenth day of the
following month, an updated Budget, substantially in the form of Exhibit
XXI attached hereto, reflecting the Company's projected cash receipts and
disbursements on a consolidated basis for the succeeding 13-week period, in
form and substance reasonably satisfactory to the Administrative Agent and
the Requisite Lenders.
(v) Variance Report: on or before the tenth day of each month
(beginning on June 10, 2002) a variance report for the immediately
preceding calendar month (each a "Variance Report"), substantially in the
form of Exhibit XXIV attached hereto, reflecting on a line-item basis the
actual cash receipts and disbursements for the immediately preceding
calendar month and the percentage variance of such actual results from
those reflected in the Budget for such preceding month.
(vi) Officers' and Compliance Certificates: together with each
delivery of financial statements of Holdings and its Subsidiaries pursuant
to subdivisions (ii) and (iii) above, (a) an Offices's Certificate of
Holdings stating that the signers have reviewed the terms of this Agreement
and have made, or caused to be made under their supervision, a review in
reasonable detail of the transactions and condition of Holdings and its
Subsidiaries during the accounting period covered by such financial
statements and that
100
such review has not disclosed the existence during or at the end of such
accounting period, and that the signers do not have knowledge of the
existence as at the date of such Officers' Certificate, of any condition
or event that constitutes an Event of Default or Potential Event of
Default, or, if any such condition or event existed or exists, specifying
the nature and period of existence thereof and what action Holdings has
taken, is taking and proposes to take with respect thereto; and (b) a
Compliance Certificate demonstrating in reasonable detail compliance
during and at the end of the applicable accounting periods with the
restrictions contained in Section 7, in each case to the extent compliance
with such restrictions is required to be tested at the end of the
applicable accounting period;
(vii) Reconciliation Statements: if, as a result of any change in
accounting principles and policies from those used in the preparation of
the audited financial statements referred to in subsection 5.3, the
consolidated financial statements of Holdings and its Subsidiaries
delivered pursuant to subdivisions (i), (ii), (iii) or (xv) of this
subsection 6.1 will differ in any material respect from the consolidated
financial statements that would have been delivered pursuant to such
subdivisions had no such change in accounting principles and policies been
made, then (1) together with the first delivery of financial statements
pursuant to subdivision (i), (ii), (iii) or (xv) of this subsection 6.1
following such change, consolidated financial statements of Holdings and
its Subsidiaries for (y) the current Fiscal Year to the effective date of
such change and (z) the two full Fiscal Years immediately preceding the
Fiscal Year in which such change is made, in each case prepared on a pro
forma basis as if such change had been in effect during such periods, and
(2) together with each delivery of financial statements pursuant to
subdivision (i), (ii), (iii) or (xv) of this subsection 6.1 following such
change, a written statement of the principal accounting officer or
principal financial officer of Holdings setting forth the differences
(including any differences that would affect any calculations relating to
the financial covenants set forth in subsection 7.6) which would have
resulted if such financial statements had been prepared without giving
effect to such change;
(viii) Accountants' Certification: together with each delivery of
consolidated financial statements of Holdings and its Subsidiaries
pursuant to subdivision (iii) above, a written statement by the
independent certified public accountants giving the report thereon (a)
stating that their audit examination has included a review of the terms of
this Agreement and the other Loan Documents as they relate to accounting
matters, (b) stating whether, in connection with their audit examination,
any condition or event that constitutes an Event of Default or Potential
Event of Default of a financial nature has come to their attention and, if
such a condition or event has come to their attention, specifying the
nature and period of existence thereof; provided that such accountants
shall not be liable by reason of any failure to obtain knowledge of any
such Even t of Default or Potential Event of Default that would not be
disclosed in the course of their audit examination, and (c) stating that
based on their audit examination nothing has come to their attention that
causes them to believe either or both that the information contained in
the certificates delivered therewith pursuant to subdivision (vi) above is
not correct or that the matters set forth in the Compliance Certificates
delivered therewith pursuant to clause (b) of subdivision (vi) above for
the applicable Fiscal Year are not stated in accordance with the terms of
this Agreement;
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(ix) Accountants' Reports: promptly upon receipt thereof (unless
restricted by applicable professional standards), copies of all reports
submitted to Holdings by independent certified public accountants in
connection with each annual, interim or special audit of the financial
statements of Holdings and its Subsidiaries made by such accountants,
including any comment letter submitted by such accountants to management
in connection with their annual audit;
(x) SEC Filings and Press Releases: promptly upon their becoming
available, copies of (a) all financial statements, reports, notices and
proxy statements sent or made available generally by Holdings to analysts
or its security holders or by any Subsidiary of Holdings to analysts or
its security holders other than Holdings or another Subsidiary of
Holdings, (b) all regular and periodic reports and all registration
statements (other than on Form S-8 or a similar form) and prospectuses, if
any, filed by Holdings or any of its Subsidiaries with any securities
exchange or with the Securities and Exchange Commission or any
governmental or private regulatory authority, and (c) all press releases
and other written, publicly announced notices by Holdings or any of its
Subsidiaries concerning material developments in the business of Holdings
or any of its Subsidiaries;
(xi) Events of Default, etc.: promptly upon any Responsible
Officer of Holdings or Company obtaining knowledge (a) of any condition or
event that constitutes an Event of Default or Potential Event of Default,
or becoming aware that any Lender has given any notice (other than to
Administrative Agent) or taken any other action with respect to a claimed
Event of Default or Potential Event of Default, (b) that any Person has
given any notice to Holdings or any of its Subsidiaries or taken any other
action with respect to a claimed default or event or condition of the type
referred to in subsection 8.2, (c) of any condition or event that would be
required to be disclosed in a current report filed by Holdings or Company
with the Securities and Exchange Commission on Form 8-K (Items 1, 2, 4, 5
and 6 of such Form as in effect on the date hereof) if Holdings or Company
were required to file such reports under the Exchange Act, or (d) of the
occurrence of any event or change that has caused or evidences, either in
any case or in the aggregate, a Material Adverse Effect, an Officer's
Certificate specifying the nature and period of existence of such
condition, event or change, or specifying the notice given or action taken
by any such Person and the nature of such claimed Event of Default,
Potential Event of Default, default, event or condition, and what action
Holdings or Company has taken, is taking and proposes to take with respect
thereto;
(xii) Litigation or Other Proceedings: promptly upon any
Responsible Officer of Holdings or Company obtaining knowledge of (a) the
institution of, or non-frivolous threat of, any action, suit, proceeding
(whether administrative, judicial or otherwise), governmental
investigation or arbitration against or affecting Holdings or any of its
Subsidiaries or any property of Holdings or any of its Subsidiaries
(collectively, "Proceedings") not previously disclosed in writing by
Holdings or Company to Lenders or (b) any material development in any
Proceeding that, in any case:
(1) if adversely determined, has a reasonable possibility of
giving rise to a Material Adverse Effect; or
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(2) seeks to enjoin or otherwise prevent the consummation
of, or to recover any damages or obtain relief as a result of, the
transactions contemplated hereby;
written notice thereof together with such other information as may be
reasonably available to Holdings or Company to enable Lenders and their
counsel to evaluate such matters;
(xiii) ERISA Events: promptly upon becoming aware of the occurrence
of or forthcoming occurrence of any ERISA Event, a written notice
specifying the nature thereof, what action Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates has taken, is
taking or proposes to take with respect thereto and, when known, any
action taken or threatened by the Internal Revenue Service, the
Department of Labor or the PBGC with respect thereto;
(xiv) ERISA Notices: with reasonable promptness, copies of (a) each
Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by Holdings, any of its Subsidiaries or any of their
respective ERISA Affiliates with the Internal Revenue Service with
respect to each Pension Plan, as Administrative Agent shall reasonably
request; (b) all notices received by Holdings, any of its Subsidiaries or
any of their respective ERISA Affiliates from a Multiemployer Plan
sponsor concerning an ERISA Event; and (c) copies of such other documents
or governmental reports or filings relating to any Employee Benefit Plan
as Administrative Agent shall reasonably request;
(xv) Financial Plans: as soon as practicable and in any event no
later than 30 days after the beginning of each Fiscal Year, a
consolidated plan and financial forecast for such Fiscal Year and the
next succeeding Fiscal Year (the "Financial Plan" for such Fiscal Years),
including (a) a forecasted consolidated balance sheet and forecasted
consolidated statements of income together with forecasted asset sales
and capital expenditures (prepared on a monthly basis for such Fiscal
Year and on an annual basis for the succeeding Fiscal Year) and annual
cash flows of Holdings and its Subsidiaries for each such Fiscal Year,
together with a pro forma Compliance Certificate for the first such
Fiscal Year and an explanation of the assumptions on which such forecasts
are based, and (b) such other information regarding such projections as
Administrative Agent may reasonably request;
(xvi) Insurance: as soon as practicable and in any event by the
last day of each Fiscal Year, a report in form and substance satisfactory
to Administrative Agent outlining all material changes made to insurance
coverage maintained as of the Effective Date or the date of the most
recent such report by Holdings and its Subsidiaries;
(xvii) New Subsidiaries: promptly upon any Person becoming a
Subsidiary of Holdings, a written notice setting forth with respect to
such Person (a) the date on which such Person became a Subsidiary of
Holdings and (b) the ownership and debt and equity capitalization of such
Subsidiary;
103
(xviii) Material Contracts: promptly, and in any event within ten
Business Days after any Material Contract of Holdings or any of its
Subsidiaries is terminated prior to its scheduled term or amended in a
manner that is materially adverse to Holdings or such Subsidiary, as the
case may be, or any new Material Contract is entered into, a written
statement describing such event with copies of such material amendments
or new contracts, and an explanation of any actions being taken with
respect thereto;
(xix) Borrowing Base Certificate and Forward Commitments: as soon
as available and in any event within 15 days after the end of each
monthly accounting period (ending on the last day of each calendar
month), furnish to the Administrative Agent (i) a Borrowing Base
Certificate as at the last day of such accounting period and (ii)
information regarding any forward purchase commitments for any Rental
Equipment then in effect;
(xx) Utilization Report: on or before September 1, 2002, the
Company and the Administrative Agent shall agree upon a mutually
acceptable monthly report reflecting the Company's utilization rates by
equipment type for the immediately preceding calendar month (each a
"Utilization Report"). Commencing with the monthly accounting period
beginning January 1, 2003 the Company shall deliver a Utilization Report
to the Administrative Agent and the Lenders on or before the tenth day
following the end of each calendar month;
(xxi) Reconciliation Report: on or before the tenth day of each
month, a monthly reconciliation report (to be used for information
purposes only), in form and substance reasonably satisfactory to the
Administrative Agent and the Requisite Lenders substantially in the form
of Exhibit XXV annexed hereto (each a "Reconciliation Report"), for the
immediately preceding calendar month with respect to the following: (A)
equipment purchases during such month, (B) acquisitions during such
month, (C) proceeds from dispositions of assets during such month, (D)
Consolidated Capital Expenditures (broken out by amounts made in cash and
amounts accrued) made during such month, and (E) Net Capital Expenditures
during such month;
(xxii) Senior Notes Payment Notice: on or before the tenth day
preceding the due date of any amount payable by the Company or ▇▇▇▇▇▇▇
▇▇▇▇▇ Capital Corporation under the Senior Notes, the Company shall
notify the Administrative Agent in writing as to whether or not the
Company or ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation intends to make any such
payment and deliver a certificate, in reasonable detail and certified by
the principal financial officer or principal accounting officer of
Company or Holdings, that certifies that, immediately prior and
subsequent to such payment, no Event of Default or Potential Event of
Default has occurred or shall occur; and
(xxiii) Other Information: with reasonable promptness, such other
information and data with respect to Holdings or any of its Subsidiaries
as from time to time may be reasonably requested by Administrative Agent.
6.2 Corporate/Partnership Existence, etc.
------------------------------------
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Except as permitted under subsection 7.7, Holdings will, and will cause
each of its Subsidiaries to, at all times preserve and keep in full force and
effect its corporate or partnership existence, as applicable, and all rights and
franchises material to its business; provided, however that neither Holdings nor
any of its Subsidiaries shall be required to preserve any such right or
franchise if the Board of Directors of Holdings or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of Holdings or such Subsidiary, as the case may be, and that the
loss thereof is not disadvantageous in any material respect to Holdings, such
Subsidiary or Lenders.
6.3 Payment of Taxes and Claims; Tax Consolidation.
----------------------------------------------
A. Holdings will, and will cause each of its Subsidiaries to, pay all
federal, state and other material taxes, assessments and other governmental
charges imposed upon it or any of its properties or assets or in respect of any
of its income, businesses or franchises before any penalty accrues thereon, and
all claims (including claims for labor, services, materials and supplies) for
material sums that have become due and payable and that by law have or may
become a Lien upon any of its properties or assets, prior to the time when any
penalty or fine shall be incurred with respect thereto; provided that no such
charge or claim need be paid if it is being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted, so long as
(1) such reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor and (2) in the case of a
charge or claim which has or may become a Lien against any of the Collateral,
such contest proceedings conclusively operate to stay the sale of any portion of
the Collateral to satisfy such charge or claim.
B. Holdings will not, nor will it permit any of its Subsidiaries to,
file or consent to the filing of any consolidated income tax return with any
Person (other than Holdings, General Partner or any of its Subsidiaries).
6.4 Maintenance of Properties; Insurance; Application of Net
--------------------------------------------------------
Insurance/Condemnation Proceeds.
-------------------------------
A. Maintenance of Properties. Company will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained, at a general maintenance
standard at least equal to that in existence as of the Closing Date, in good
repair, working order and condition, ordinary wear and tear and damage by
casualty excepted, all material properties used or useful in the business of
Company and its Subsidiaries (including all Intellectual Property) and from time
to time will make or cause to be made all repairs, renewals and replacements
thereof which are useful, customary or appropriate for companies in similar
businesses; and Company will, and will cause each of its Subsidiaries to, keep
all such material properties, including, without limitation all Rental Equipment
in the United States, other than (i) assets located in the United States Virgin
Islands and (ii) other assets located in (y) Canada or a Caribbean jurisdiction
or (z) other jurisdictions; provided that the total value of such assets
contributed or otherwise financed by Company or a Permitted Domestic Subsidiary
with respect to a Permitted Foreign Subsidiary or invested by Company in a
Permitted Domestic Subsidiaries in such foreign jurisdictions identified in the
preceding clause (ii) or located in foreign jurisdictions identified in the
preceding clause (ii) shall not exceed 3% of the book value of the consolidated
total assets of Company and its Subsidiaries.
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B. Insurance. Company will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance, third
party property damage insurance, casualty insurance with respect to liabilities,
losses or damage in respect of the assets, properties and businesses of Company
and its Subsidiaries as may customarily be carried or maintained under similar
circumstances by corporations of established reputation engaged in similar
businesses, in each case in such amounts (giving effect to self-insurance), with
such deductibles, covering such risks and otherwise on such terms and conditions
as shall be customary for Persons similarly situated in the industry. Without
limiting the generality of the foregoing, Company will maintain or cause to be
maintained (i) flood insurance with respect to each Flood Hazard Property that
is located in a community that participates in the National Flood Insurance
Program, in each case in compliance with any applicable regulations of the Board
of Governors of the Federal Reserve System, and (ii) replacement value property
insurance on the Collateral under such policies of insurance, with such
insurance companies, in such amounts, with such deductibles, and covering such
risks as are in accordance with normal industry practice. Each such policy of
insurance related to property damage or casualty shall (a) name Collateral Agent
for the benefit of Lenders as an additional insured thereunder as its interests
may appear and (b) in the case of each business interruption and casualty
insurance policy, contain a loss payable clause or endorsement, reasonably
satisfactory in form and substance to Collateral Agent, that names Collateral
Agent for the benefit of Lenders and lenders under the Second Priority Term Loan
Credit Agreement as the loss payee thereunder for any covered loss in excess of
$1,000,000 and provides for at least 30 days prior written notice to Collateral
Agent of any modification or cancellation of such policy.
C. Application of Net Insurance/Condemnation Proceeds.
--------------------------------------------------
(i) Casualty Insurance/Condemnation Proceeds. Within ten
Business Days of receipt by Company or any of its Subsidiaries of any
Net Insurance/Condemnation Proceeds, (a) so long as no Event of Default
shall have occurred and be continuing, and so long as the aggregate
amount of Net Insurance/Condemnation Proceeds received in any Fiscal
Year does not exceed an amount equal to (i) $1,000,000 with respect to
any individual insurance claim and (ii) $5,000,000 for the aggregate of
all insurance claims in any Fiscal Year, Company may deliver to
Administrative Agent an Officers' Certificate setting forth (1) that
portion of such Net Insurance/Condemnation Proceeds (the "Proposed
Insurance Reinvestment Proceeds") that Company or such Subsidiary
intends to use (or enter into a contract to use) within 180 days of
such date of receipt to pay or reimburse the costs of repairing,
restoring or replacing the assets in respect of which such Net
Insurance/Condemnation Proceeds were received or to reinvest in assets
used in the ordinary course of the business and (2) the proposed use of
the Proposed Insurance Reinvestment Proceeds and such other information
with respect to such proposed use as Administrative Agent may
reasonably request, and Company shall, or shall cause one or more of
its Subsidiaries to, promptly and diligently apply such Proposed
Insurance Reinvestment Proceeds to pay or reimburse the costs of
repairing, restoring or replacing the assets in respect of which such
Proposed Insurance Reinvestment Proceeds were received, or to reinvest
in assets used in the ordinary course of business of Company or, to the
extent the aggregate amount of Net Insurance/Condemnation Proceeds
received in any Fiscal Year exceeds an amount equal to the amounts set
forth in clauses (i) and (ii) above, to prepay the Loans as provided in
106
subsection 2.4B(iii)(b), and (b) if an Event of Default shall have
occurred and be continuing, Company shall immediately apply an amount
equal to such Net Insurance/Condemnation Proceeds to prepay the Loans
as provided in subsection 2.4B(iii)(b).
(ii) Net Insurance/Condemnation Proceeds Received by
Collateral Agent. (a) Within three Business Days of receipt by
Collateral Agent of any Net Insurance/Condemnation Proceeds as loss
payee, if and to the extent Company or Company would have been required
to apply such Net Insurance/Condemnation Proceeds (if it had received
them directly) to prepay the Loans pursuant to clause (i) above,
Collateral Agent shall, and Company hereby authorizes Collateral Agent
to, apply such Net Insurance/Condemnation Proceeds to prepay the Loans
as provided in subsection 2.4B(iii)(b), and (b) within three Business
Days of receipt by Collateral Agent of any Net Insurance/Condemnation
Proceeds as loss payee to the extent the foregoing clause (a) does not
apply, Collateral Agent shall deliver such Net Insurance/Condemnation
Proceeds to Company, and Company shall, or shall cause one or more of
its Subsidiaries to, apply such Net Insurance/Condemnation Proceeds to
the costs of repairing, restoring, or replacing the assets in respect
of which such Net Insurance/Condemnation Proceeds were received or to
reinvestment in assets used in the ordinary course of the business.
6.5 Inspection Rights; Audits of Inventory and Accounts Receivable; Lender
----------------------------------------------------------------------
Meeting; Internal Audit; Supplemental Appraisal; Field Examinations.
-------------------------------------------------------------------
A. Inspection Rights. Holdings shall, and shall cause each of its
Subsidiaries to, permit any authorized representatives designated by any Lender
to visit and inspect any of the properties of Holdings or of any of its
Subsidiaries, to inspect, copy and take extracts from its and their financial
and accounting records, and to discuss its and their affairs, finances and
accounts with its and their officers and independent public accountants
(provided that Holdings or Company may, if they so choose, be present at or
participate in any such discussion), all upon reasonable notice and at such
reasonable times during normal business hours and as often as may reasonably be
requested; provided, that each Lender shall coordinate with Administrative Agent
the frequency and timing of such visits and inspections so as to reasonably
minimize the burden imposed on Holdings and its Subsidiaries; and provided
further, that, so long as no Potential Event of Default or Event of Default
shall have occurred and be continuing, there shall be no more than one such
visit by Lenders in any calendar month.
B. Audits of Inventory and Accounts Receivable. Holdings shall, and
shall cause each of its Subsidiaries to, permit any authorized representatives
designated by Administrative Agent to (i) conduct one audit of all books,
records, Parts and Supplies Inventory and accounts receivable of Loan Parties
during each twelve-month period after the Effective Date, each such audit to be
in scope and substance reasonably satisfactory to Administrative Agent, (ii)
conduct one field examination of all books, records, Parts and Supplies
Inventory and accounts receivable of Loan Parties during each three-month period
after the Effective Date, each such examination to be in scope and substance
reasonably satisfactory to Administrative Agent and (iii) to review the results
of the internal audit referred to in subsection 6.5D, all upon reasonable notice
and at such reasonable times during normal business hours as may reasonably be
requested. The reasonable costs of each such audit and field examination shall
be paid for by Company.
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C. Lender Meeting. Company will, upon the request of Administrative
Agent or Requisite Lenders, participate in a meeting of Administrative Agent and
Lenders once during each Fiscal Year to be held at Company's corporate offices
(or at such other location as may be agreed to by Holdings and Administrative
Agent) at such time as may be agreed to by Company and Administrative Agent.
D. Internal Audit. Once each calendar year, Company will provide to
Administrative Agent a copy of Company's internally prepared audit of Eligible
Cranes and Lifting Equipment, Eligible Trucks and Trailers and Eligible
Excavation Equipment which shall include physical confirmation of the existence
and appropriate titling of each item of such equipment with an original purchase
price or Orderly Liquidation Value in excess of $500,000.
E. Supplemental Appraisal. Once each calendar year, Company will
deliver to Administrative Agent a Supplemental Appraisal. Notwithstanding the
foregoing, during the period from September 30, 2002 to January 1, 2003, the
Administrative Agent shall be permitted to perform, or cause the performance of
an Actual Appraisal and such Actual Appraisal shall be paid for by the Company.
Results of the Actual Appraisal (a) for purposes of all Rental Equipment listed
as category 4 equipment on Schedule 1.1(vii), including all tower cranes, crane
attachments, conventional trucks and crawler cranes, shall be used to determine
the fair market value and respective Orderly Liquidation Values of such Rental
Equipment (which results shall be binding on the Company for such calculations),
and (b) for purposes of all other Rental Equipment, including all equipment
listed as category 1 through 3 on Schedule 1.1(vii), shall be used for
informational purposes only. The Orderly Liquidation Values determined pursuant
to the Actual Appraisal set forth in subsection (a) of this subsection E will
become binding on the Company as of the January 31, 2003 Borrowing Base
Certificate to be delivered on or before February 15, 2003. The Actual Appraisal
shall be completed, to the reasonable satisfaction of the Administrative Agent,
prior to January 1, 2003.
6.6 Compliance with Laws, etc.
-------------------------
Holdings shall comply, and shall cause each of its Subsidiaries to
comply, with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority (including all Environmental Laws), except
where noncompliance would not reasonably be expected to cause, individually or
in the aggregate, a Material Adverse Effect.
6.7 Environmental Review and Investigation, Disclosure, Etc.; Actions
-----------------------------------------------------------------
Regarding Hazardous Materials Activities, Environmental Claims and
------------------------------------------------------------------
Violations of Environmental Laws.
--------------------------------
A. Environmental Review and Investigation. Holdings and Company
agree that Administrative Agent may, (i) at any time a fact, event or condition
arises that, in Administrative Agent's reasonable discretion, Administrative
Agent determines could give rise to environmental liabilities that would
materially adversely affect any material Facility, retain, at Company's expense,
an independent professional consultant to review any environmental audits,
investigations, analyses and reports relating to Hazardous Materials at such
Facility prepared by or for Company and (ii) in the event (a) Administrative
Agent reasonably believes that Company or Holdings has breached any
representation, warranty or covenant contained in subsection 5.6
108
(with respect to Environmental Claims or Environmental Laws), 5.13, 6.6 (with
respect to Environmental Laws) or 6.7 in any material respect or that there has
been a material violation of Environmental Laws at any Facility or by Holdings
or any of its Subsidiaries at any other location conduct its own investigation
of such breach or violation or (b) an Event of Default has occurred and is
continuing, conduct its own investigation of any Facility; provided that, in the
case of any Facility no longer owned, leased, operated or used by Holdings or
any of its Subsidiaries, Company and Holdings shall only be obligated to use
their reasonable best efforts to obtain permission for Administrative Agent's
professional consultant to conduct an investigation of such Facility. For
purposes of conducting an investigation pursuant to clause (ii) of the preceding
sentence, Company and Holdings hereby grant to Administrative Agent and its
agents, employees, consultants and contractors the right to enter into or onto
any Facilities currently owned, leased, operated or used by Holdings or any of
its Subsidiaries and to perform such tests on such property (including taking
samples of soil, groundwater and suspected asbestos-containing materials) as are
reasonably necessary in connection therewith (to the extent, at any Facility
leased by Holdings or any of its Subsidiaries, such actions are permitted by the
owner of such Facility). Any such investigation of any Facility shall be
conducted, unless otherwise agreed to by Holdings and Administrative Agent,
during normal business hours and, to the extent reasonably practicable, shall be
conducted so as not to interfere with the ongoing operations at such Facility or
to cause any damage or loss to any property at such Facility. Holdings, Company
and Administrative Agent hereby acknowledge and agree that any report of any
investigation conducted at the request of Administrative Agent pursuant to this
subsection 6.7A will be obtained and shall be used by Administrative Agent and
Lenders for the purposes of Lenders' internal credit decisions, to monitor and
police the Loans and to protect Lenders' security interests, if any, created by
the Loan Documents. Administrative Agent agrees to deliver a copy of any such
report to Company with the understanding that Company and Holdings acknowledge
and agree that (x) they will indemnify and hold harmless Administrative Agent
and each Lender from any costs, losses or liabilities relating to Holdings' or
Company's use of or reliance on such report, (y) neither Administrative Agent
nor any Lender makes any representation or warranty with respect to such report,
and (z) by delivering such report to Company, neither Administrative Agent nor
any Lender is requiring or recommending the implementation of any suggestions or
recommendations contained in such report.
B. Environmental Disclosure. Company will deliver to Administrative
Agent, with sufficient copies for each Lender (and Administrative Agent will,
after receipt thereof, deliver to each Lender):
(i) Environmental Audits and Reports. As soon as practicable
following receipt thereof, copies of all material environmental audits,
investigations, analyses and reports of any kind or character, whether
prepared by personnel of Holdings or any of its Subsidiaries or by
independent consultants, governmental authorities or any other Persons,
with respect to environmental matters at any Facility that could
reasonably be expected to have a Material Adverse Effect.
(ii) Notice of Certain Releases, Remedial Actions, Etc.
Promptly upon the occurrence thereof, written notice describing in
reasonable detail (a) any Release required to be reported to any
federal, state or local governmental or regulatory agency under any
applicable Environmental Laws unless such Release could not reasonably
be expected to
109
result in a Material Adverse Effect, (b) any remedial action taken by
Company, Holdings or any other Person in response to (1) any Hazardous
Materials Activities the existence of which would reasonably be
expected to result in one or more Environmental Claims having,
individually or in the aggregate, a Material Adverse Effect, or (2) any
Environmental Claims of which Holdings or any of its Subsidiaries has
notice that, individually or in the aggregate, would reasonably be
expected to result in a Material Adverse Effect, and (c) Company's or
Holdings' discovery of any occurrence or condition on any real property
adjoining or in the vicinity of any material Facility that would
reasonably be expected to cause such material Facility or any part
thereof to be subject to any material restrictions on the ownership,
occupancy, transferability or use thereof under any Environmental Laws,
unless such restrictions could not reasonably be expected to have a
Material Adverse Effect.
(iii) Written Communications Regarding Environmental Claims,
Releases, Etc. As soon as practicable following the sending or receipt
thereof by Holdings or any of its Subsidiaries, a copy of any and all
written communications with respect to (a) any Environmental Claims
that, individually or in the aggregate, would reasonably be expected to
give rise to a Material Adverse Effect, (b) any Release required to be
reported to any federal, state or local governmental or regulatory
agency unless such Release could not reasonably be expected to result
in a Material Adverse Effect, and (c) any request for information from
any governmental agency that suggests such agency is investigating
whether Holdings or any of its Subsidiaries may be potentially
responsible for any Hazardous Materials Activity unless such Hazardous
Materials Activity could not reasonably be expected to have a Material
Adverse Effect.
(iv) Notice of Certain Proposed Actions Having Environmental
Impact. Prompt written notice describing in reasonable detail (a) any
proposed acquisition of stock, assets, or property by Holdings or any
of its Subsidiaries that could reasonably be expected to (1) expose
Holdings or any of its Subsidiaries to, or result in, Environmental
Claims that could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect or (2) affect the ability of
Holdings or any of its Subsidiaries to maintain in full force and
effect all material Governmental Authorizations required under any
Environmental Laws for their respective operations and (b) any proposed
action to be taken by Holdings or any of its Subsidiaries to modify
current operations in a manner that would reasonably be expected to
subject Holdings or any of its Subsidiaries to any material additional
obligations or requirements under any Environmental Laws where such
obligations or reimbursements would reasonably be expected to have a
Material Adverse Effect.
(v) Other Information. With reasonable promptness, such
other documents and information as from time to time may be reasonably
requested by Administrative Agent in relation to any matters disclosed
pursuant to this subsection 6.7.
C. Holdings' and Company's Actions Regarding Hazardous Materials
Activities, Environmental Claims and Violations of Environmental Laws.
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(i) Remedial Actions Relating to Hazardous Materials
Activities. Holdings shall promptly undertake, and shall cause each of
its Subsidiaries promptly to undertake, any and all investigations,
studies, sampling, testing, abatement, cleanup, removal, remediation or
other response actions necessary to remove, remediate, clean up or
▇▇▇▇▇ any Hazardous Materials Activity on, under or about any Facility
that is in violation of any Environmental Laws or that presents a
material risk of giving rise to an Environmental Claim that would, in
either case, reasonably be expected to have a Material Adverse Effect.
In the event Holdings or any of its Subsidiaries undertakes any such
action with respect to any Hazardous Materials, Holdings or such
Subsidiary shall conduct and complete such action in material
compliance with all applicable Environmental Laws and in accordance an
all material respects with the policies, orders and directives of all
federal, state and local governmental authorities except when, and only
to the extent that, Holdings' or such Subsidiary's liability with
respect to such Hazardous Materials Activity is being contested in good
faith by Holdings or such Subsidiary.
(ii) Actions with Respect to Environmental Claims and
Violations of Environmental Laws. Holdings shall promptly take, and
shall cause each of its Subsidiaries promptly to take, any and all
reasonable actions necessary to (i) cure any violation of applicable
Environmental Laws by Holdings or its Subsidiaries where such violation
would reasonably be expected to have a Material Adverse Effect and (ii)
make an appropriate response to any Environmental Claim against
Holdings or any of its Subsidiaries (of which Holdings or any of its
Subsidiaries has notice) where such Environmental Claim would
reasonably be expected to have a Material Adverse Effect, and discharge
any material obligations it may have to any Person thereunder.
6.8 Execution of Subsidiary Guaranty and Personal Property Collateral
-----------------------------------------------------------------
Documents by Subsidiaries and Future Subsidiaries.
-------------------------------------------------
A. Execution of Subsidiary Guaranty and Personal Property Collateral
Documents. In the event that any Person becomes a Subsidiary of Company after
the date hereof, Company will promptly notify Administrative Agent of that fact
and cause such Subsidiary to execute and deliver to Administrative Agent
counterparts of the Subsidiary Guaranty and the Pledge and Security Agreement
and to take all such further actions and execute all such further documents and
instruments (including actions, documents and instruments comparable to those
described in subsection 4.2) as may be reasonably necessary or, in the
reasonable opinion of Administrative Agent, desirable to create in favor of
Administrative Agent, for the benefit of Lenders, a valid and perfected first
priority Lien (other than liens under Section 7.2(A)(i), (viii) and (ix)) on all
of the personal and mixed property assets of such Subsidiary described in the
applicable forms of Collateral Documents.
B. Subsidiary Charter Documents, Legal Opinions, Etc. Company shall
deliver to Administrative Agent, together with such Loan Documents pursuant to
clause A above, (i) (y) if such Subsidiary is a corporation (a) certified copies
of such Subsidiary's Certificate or Articles of Incorporation, together with a
good standing certificate from the Secretary of State of the jurisdiction of its
incorporation and each other state in which such Person is qualified as a
foreign corporation to do business and, to the extent generally available, a
certificate or other
111
evidence of good standing as to payment of any applicable franchise or similar
taxes from the appropriate taxing authority of each of such jurisdictions, each
to be dated a recent date prior to their delivery to Administrative Agent, (b) a
copy of such Subsidiary's Bylaws, certified by its secretary or an assistant
secretary as of a recent date prior to their delivery to Administrative Agent,
(c) a certificate executed by the corporate secretary or an assistant corporate
secretary of such Subsidiary as to (i) the fact that the attached resolutions of
the Board of Directors of such Subsidiary approving and authorizing the
execution, delivery and performance of such Loan Documents are in full force and
effect and have not been modified or amended and (ii) the incumbency and
signatures of the officers of such Subsidiary executing such Loan Documents, and
(ii) (z) if such Subsidiary is a limited partnership, (a) from or with respect
to such Subsidiary's General Partner, each of the items required to be delivered
under item (a) of clause (y) above with respect to such General Partner, if it
is a corporation, (b) certified copies of its Certificate of Limited
Partnership, together with a good standing certificate from the Secretary of
State of its jurisdiction of incorporation or formation, each dated a recent
date prior to their delivery to Administrative Agent, and (c) copies of its
limited partnership agreement, certified as true, correct and in full force and
effect as of the date of its delivery to Administrative Agent, by the corporate
secretary or an assistant secretary of its general partner or an officer of its
limited partner, and (iii) to the extent requested by Administrative Agent, a
favorable opinion of counsel to such Subsidiary, in form and substance
reasonably satisfactory to Administrative Agent and its counsel, as to (a) the
due organization and good standing of such Subsidiary, (b) the due
authorization, execution and delivery by such Subsidiary of such Loan Documents,
(c) the enforceability of such Loan Documents against such Subsidiary, (d) such
other matters (including matters relating to the creation and perfection of
Liens in any Collateral pursuant to such Loan Documents) as Administrative Agent
may reasonably request, all of the foregoing to be reasonably satisfactory in
form and substance to Administrative Agent and its counsel.
6.9 Conforming Leasehold Interests; Matters Relating to Additional Real
-------------------------------------------------------------------
Property Collateral.
-------------------
A. Conforming Leasehold Interests. If Holdings or any of its
Subsidiaries acquires any Material Leasehold Property, Holdings shall use
commercially reasonable efforts to, or shall cause such Subsidiary to use
commercially reasonable efforts to, cause such Leasehold Property to be a
Conforming Leasehold Interest and Holdings shall deliver evidence of the
foregoing to Administrative Agent.
B. Additional Mortgages, Etc. From and after the Effective Date, in
the event that (i) Holdings or any Subsidiary Guarantor acquires any fee
interest in real property, or any Material Leasehold Property or (ii) at the
time any Person becomes a Subsidiary Guarantor, such Person owns or holds any
fee interest in any Material Real Property Asset or any Material Leasehold
Property, in either case excluding any such Material Real Property Asset or
Material Leasehold Property the encumbrancing of which requires the consent of
any applicable lessor or (in the case of clause (ii) above) then-existing senior
lienholder, where Holdings and its Subsidiaries are unable, after exercising
commercially reasonable efforts, to obtain such lessor's or senior lienholder's
consent (any such non-excluded Material Real Property Asset described in the
foregoing clause (i) or (ii) being an "Additional Mortgaged Property"), Holdings
or such Subsidiary Guarantor shall deliver to Administrative Agent, as soon as
practicable after such
112
Person acquires such Additional Mortgaged Property or becomes a Subsidiary
Guarantor, as the case may be, the following:
(i) Additional Mortgage. A fully executed and notarized Mortgage
(an "Additional Mortgage"), in proper form for recording in all
appropriate places in all applicable jurisdictions, encumbering the
interest of such Loan Party in such Additional Mortgaged Property;
(ii) Opinions of Counsel. (a) A favorable opinion of counsel to
such Loan Party, in form and substance satisfactory to Administrative
Agent and its counsel, as to the due authorization, execution and delivery
by such Loan Party of such Additional Mortgage and such other matters as
Administrative Agent may reasonably request, and (b) if required by
Administrative Agent, an opinion of counsel (which counsel shall be
reasonably satisfactory to Administrative Agent) in the state in which
such Additional Mortgaged Property is located with respect to the
enforceability of such Additional Mortgage and such other matters
(including any matters governed by the laws of such state regarding
personal property security interests in respect of any Collateral related
to such Additional Mortgaged Property) as Administrative Agent may
reasonably request, in each case in form and substance reasonably
satisfactory to Administrative Agent;
(iii) Title Insurance. (a) If required by Administrative Agent, an
ALTA mortgagee title insurance policy or an unconditional commitment
therefor (an "Additional Mortgage Policy") issued by the Title Company
with respect to such Additional Mortgaged Property, in an amount
reasonably satisfactory to Administrative Agent, insuring fee simple title
to, or a valid leasehold interest in, such Additional Mortgaged Property
vested in such Loan Party and assuring Administrative Agent that such
Additional Mortgage creates a valid and enforceable first priority
mortgage Lien on such Additional Mortgaged Property, subject only to
standard survey exceptions, which Additional Mortgage Policy (1) shall
include an endorsement for mechanics' liens, for future advances (in each
case, if available) under this Agreement and for any other matters
reasonably requested by Administrative Agent and (2) shall provide for
affirmative insurance and such reinsurance as Administrative Agent may
reasonably request, all of the foregoing in form and substance reasonably
satisfactory to Administrative Agent; and (b) evidence satisfactory to
Administrative Agent that such Loan Party has (i) delivered to the Title
Company all certificates and affidavits required by the Title Company in
connection with the issuance of the Additional Mortgage Policy and (ii)
paid to the Title Company or to the appropriate governmental authorities
all expenses and premiums of the Title Company in connection with the
issuance of the Additional Mortgage Policy and all recording and stamp
taxes (including mortgage recording and intangible taxes) payable in
connection with recording the Additional Mortgage in the appropriate real
estate records; provided, however, that Administrative Agent shall allow
for such reasonable revisions to the applicable Mortgage and shall
otherwise take such steps as are reasonable and customary to minimize
recording, mortgage recording, stamp, documentary and intangible taxes, at
Company's cost;
(iv) Title Report. If no Additional Mortgage Policy is required
with respect to such Additional Mortgaged Property, a title report issued
by the Title Company with
113
respect thereto, last updated not more than 30 days prior to the date such
Additional Mortgage is to be recorded and reasonably satisfactory in form
and substance to Administrative Agent;
(v) Copies of Documents Relating to Title Exceptions. Copies of
all recorded documents listed as exceptions to title or otherwise referred
to in the Additional Mortgage Policy or title report delivered pursuant to
clause (iv) or (v) above;
(vi) Matters Relating to Flood Hazard Properties. (a) To the extent
reasonably requested by the Administrative Agent, evidence, which may be
in the form of a surveyor's note on a survey or a report from a flood
hazard search firm, as to (1) whether such Additional Mortgaged Property
is a Flood Hazard Property and (2) if so, whether the community in which
such Flood Hazard Property is located is participating in the National
Flood Insurance Program, (b) if such Additional Mortgaged Property is a
Flood Hazard Property, such Loan Party's written acknowledgment of receipt
of written notification from Administrative Agent (1) that such Additional
Mortgaged Property is a Flood Hazard Property and (2) as to whether the
community in which such Flood Hazard Property is located is participating
in the National Flood Insurance Program, and (c) in the event such
Additional Mortgaged Property is a Flood Hazard Property that is located
in a community that participates in the National Flood Insurance Program,
evidence that Holdings or Company has obtained flood insurance in respect
of such Flood Hazard Property to the extent required under the applicable
regulations of the Board of Governors of the Federal Reserve System; and
(vii) Environmental Audit. If required by Administrative Agent,
reports and other information, in form, scope and substance reasonably
satisfactory to Administrative Agent and prepared by environmental
consultants reasonably satisfactory to Administrative Agent, concerning
any environmental hazards or liabilities to which Holdings or any of its
Subsidiaries may be subject with respect to such Additional Mortgaged
Property.
C. Real Estate Appraisals. To the extent reasonably requested by the
Administrative Agent, Holdings shall, and shall cause each of its Subsidiaries
to, permit an independent real estate appraiser reasonably satisfactory to
Administrative Agent, upon reasonable notice, to visit and inspect any
Additional Mortgaged Property for the purpose of preparing an appraisal of such
Additional Mortgaged Property satisfying the requirements of any applicable laws
and regulations (in each case to the extent required under such laws and
regulations as determined by Administrative Agent in its discretion).
6.10 Interest Rate Protection.
------------------------
At all times after the date which is 90 days after the Effective Date,
Company shall maintain in effect one or more Interest Rate Agreements with
respect to the Loans, each such Interest Rate Agreement to be for a term and in
form and substance reasonably satisfactory to Administrative Agent, which
Interest Rate Agreements shall effectively limit the Unadjusted Eurodollar Rate
Component (as hereinafter defined) of the interest costs to Company with respect
to an aggregate notional principal amount of not less than the aggregate
principal amount
114
of Term Loans outstanding (i.e., approximately $243,000,000) as of the Effective
Date, to a rate equal to not more than 8.0% per annum. For purposes of this
subsection 6.10, the term "Unadjusted Eurodollar Rate Component" means that
component of the interest costs to Company in respect of a Eurodollar Rate Loan
that is based upon the rate obtained pursuant to clause (i) of the definition of
Adjusted Eurodollar Rate.
6.11 Post-Closing Deliveries.
-----------------------
Company shall cause any actions set forth on Schedule 6.11 annexed hereto
to be taken within the time period(s) specified on such Schedule 6.11 and in
form and substance reasonably satisfactory to Agents.
6.12 Deposit Accounts and Cash Management Systems.
--------------------------------------------
Holdings and Company shall, and shall cause each of its Subsidiaries and
each Loan Party to, use and maintain its Deposit Accounts and cash management
systems in a manner reasonably satisfactory to Administrative Agent. In
addition, Holdings and Company shall, and shall cause each of its Subsidiaries
to, deposit into the Fleet Main Account all available amounts in excess of
$50,000 in any Branch Account or Regional Disbursement Account within two
Business Days, provided, however, that Holdings, Company and its Subsidiaries
may maintain available funds in excess of $50,000 in no more than four Branch
Accounts and/or Regional Disbursement Accounts for a period not to exceed ten
days.
6.13 Sale of Assets.
--------------
Subject to the terms of this Agreement, Company shall use commercially
reasonable efforts to undertake to sell certain assets during Fiscal Year 2002
including, but not limited to, assets set forth on Schedule 6.13 . Nothing in
this subsection 6.13 shall be construed to constitute the Agents' or the
Lenders' consent to any transaction which is not expressly permitted under this
Agreement.
SECTION 7.
HOLDINGS' AND COMPANY'S NEGATIVE COVENANTS
Holdings and Company covenant and agree that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations (other than inchoate indemnification obligations
with respect to claims, losses or liabilities which have not yet arisen and are
not yet due and payable) and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Holdings and Company shall perform, and shall cause each of their Subsidiaries
to perform, all covenants in this Section 7.
7.1 Indebtedness.
------------
Holdings shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become
or remain directly or indirectly liable with respect to, any Indebtedness,
except:
115
(i) Holdings, Company and its Subsidiaries may become and
remain liable with respect to the Obligations;
(ii) Holdings and its Subsidiaries may become and remain
liable with respect to Contingent Obligations permitted by subsection
7.4 and, upon any matured obligations actually arising pursuant
thereto, the Indebtedness corresponding to the Contingent Obligations
so extinguished;
(iii) Company and its Subsidiaries and Transitory Subsidiaries
may become and remain liable with respect to (a) Indebtedness in
respect of Capital Leases and (b) purchase money Indebtedness; provided
that the sum of (I) the outstanding aggregate amount of Indebtedness
described in clauses (a) and (b) herein plus (II) the outstanding
aggregate amount of Indebtedness described in subsection (ix) below
plus (III) the outstanding aggregate amount of Indebtedness described
in subsection (xi) below, shall not exceed $15,000,000 at any time;
(iv) Company may become and remain liable with respect to
Indebtedness to any wholly-owned Permitted Domestic Subsidiary, and any
wholly-owned Permitted Domestic Subsidiary may become and remain liable
with respect to Indebtedness to Company or any other wholly-owned
Domestic Subsidiary; provided that (a) all such intercompany
Indebtedness shall be evidenced by promissory notes, (b) all such
intercompany Indebtedness owed by Company to any such Subsidiary shall
be subordinated in right of payment to the payment in full of the
Obligations pursuant to the terms of the applicable promissory notes or
an intercompany subordination agreement, (c) any payment by any such
Subsidiary of Company under any guaranty of the Obligations shall
result in a pro tanto reduction of the amount of any intercompany
Indebtedness owed by such Subsidiary to Company or to any of such
Subsidiary Guarantors for whose benefit such payment is made, and (d)
in the case of any Indebtedness incurred by a Permitted Domestic
Subsidiary, such Indebtedness is incurred in accordance with the
definitions thereof;
(v) Holdings and its Subsidiaries may become and remain
liable with respect to Indebtedness evidenced by the Second Priority
Term Loan Credit Documents ;
(vi) Holdings and its Subsidiaries may become and remain
liable with respect to Indebtedness evidenced by, and with respect to
guaranties of, the Senior Notes and the Senior Discount Debentures;
(vii) Holdings may become and remain liable with respect to
Shareholder Subordinated Notes issued in lieu of cash payments
permitted under subsection 7.5 to repurchase Securities of Holdings
held by terminated employees and officers;
(viii) Holdings and its Subsidiaries may become and remain
liable with respect to Permitted Seller Notes issued as consideration
in Permitted Acquisitions, provided that the sum of (I) the aggregate
outstanding principal amount of Permitted Seller Notes permitted
pursuant to this subsection (viii) plus (II) the aggregate amount of
liabilities outstanding under subsection (xvii) below, shall not exceed
$5,000,000 at any time;
116
(ix) Holdings, Company or any Permitted Subsidiary acquired
pursuant to a Permitted Acquisition may become or remain liable with
respect to Indebtedness of a Subsidiary of Company existing at the time of
acquisition by Company or a Subsidiary of Company of assets or a
Subsidiary pursuant to a Permitted Acquisition; provided that (a) such
Indebtedness was not incurred in connection with or in anticipation of
such Permitted Acquisition, (b) 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 Capital Lease obligations
and purchase money Indebtedness shall not constitute debt for borrowed
money for purposes of this clause (ix) and (c) the sum of (I) the
outstanding aggregate amount of Indebtedness described in clauses (a) and
(b) of subsection (iii) above plus (II) the outstanding aggregate amount
of Indebtedness described in this subsection (ix) plus (III) the
outstanding aggregate amount of Indebtedness described in subsection (xi)
below, shall not exceed $15,000,000 at any time;
(x) Company and its Subsidiaries, as applicable, may remain
liable with respect to Indebtedness described in Schedule 7.1 annexed
hereto;
(xi) Company and its Subsidiaries may become and remain liable
with respect to Indebtedness incurred by the Company or any of its
Subsidiary Guarantors arising from agreements providing for customary
indemnification, adjustment of purchase price or similar obligations, or
from guarantees or letters of credit, in connection with acquisitions or
dispositions of any business, assets or Subsidiary of the Company or any
of its Subsidiaries, provided that the sum of (I) the outstanding
aggregate amount of Indebtedness described in clauses (a) and (b) of
subsection (iii) above plus (II) the outstanding aggregate amount of
Indebtedness described in subsection (ix) above plus (III) the outstanding
aggregate amount of Indebtedness described in this subsection (xi), shall
not exceed $15,000,000 at any time;
(xii) Company and its Subsidiaries may become and remain liable
with respect to Indebtedness which may be deemed to exist pursuant to any
performance of tenders, surety bonds, statutory obligations, appeal bonds
or similar obligations obtained in the ordinary course of business to the
extent such performance of tenders, surety bonds, statutory obligations,
appeal bonds or similar obligations are covered by Permitted Encumbrances;
(xiii) Company and its Subsidiaries may become and remain liable
with respect to Indebtedness in respect of netting services, overdraft
protections and otherwise in connection with deposit accounts, provided
that the sum of (I) the aggregate amount outstanding under this subsection
(xiii) plus (II) the aggregate amount outstanding under subsection (xvi)
below, shall not exceed $5,000,000;
(xiv) Holdings may become and remain liable with respect to
Indebtedness of Holdings in respect of any Restricted Junior Payment made
to it and permitted hereunder to the extent such Restricted Junior Payment
was made as a loan or is recharacterized as a loan instead of a
distribution;
117
(xv) Holdings and its Subsidiaries may become and remain liable
with respect to Indebtedness evidenced by the Third Priority Term Loan
Documents;
(xvi) Company and its Subsidiaries may become and remain liable
with respect to other unsecured Indebtedness, provided that the sum of (I)
the aggregate amount outstanding under subsection (xiii) above plus (II)
the aggregate amount outstanding under this subsection (xvi), shall not
exceed $5,000,000; and
(xvii) Company and its Subsidiaries may become or remain liable
under Permitted Earn-Out Agreements, provided that the sum of (I) the
aggregate outstanding principal amount of Permitted Seller Notes permitted
pursuant to subsection (viii) above plus (II) the aggregate amount of
liabilities outstanding under this subsection (xvii), shall not exceed
$5,000,000 at any time.
7.2 Liens and Related Matters.
-------------------------
A. Prohibition on Liens. Holdings shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Holdings or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the Uniform Commercial Code of any State or under any similar
recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens created hereunder and pursuant to the Collateral
Documents in favor of the Collateral Agent for the benefit of the Lenders
and/or the lenders under the Second Priority Term Loan Credit Agreement
securing Loan Parties' obligations under this Agreement, the Second
Priority Term Loan Credit Agreement and/or under Hedge Agreements with any
such Lenders and/or lenders or their respective affiliates;
(iii) Liens created under the Third Priority Term Loan Documents
securing the obligations thereunder;
(iv) Deposits held by landlords pursuant to lease contracts in the
ordinary course of business provided that the aggregate amount of such
deposits related to real estate leases shall not exceed $500,000 in the
aggregate at any time;
(v) Liens consisting of rights of set-off and off-set of a
customary nature or bankers' liens on amounts of deposit, whether arising
by contract or operation of law, incurred in the ordinary course of
business, other than such rights of set-off and off-set with respect to
the Obligations;
(vi) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by
Holdings, Company or any of its Subsidiaries or Transitory Subsidiaries in
connection with any
118
letter of intent or purchase agreement entered into by it in connection
with a Permitted Acquisition;
(vii) Liens on goods or assets in favor of the seller or shipper of
such goods or assets (a) existing in favor of the seller or shipper of
such goods or assets while in transit, (b) existing in favor of the seller
of such goods during periods when such goods or assets are being tested,
provided that such Liens do not secure Indebtedness to such seller with
respect to such goods or assets, or (c) securing accounts payable with
respect to such goods or assets, provided that such accounts payable are
current in the ordinary course of business and in no event longer than one
hundred twenty (120) days from the date such account payable arises;
(viii) Liens securing Indebtedness permitted under subsection 7.1
(iii) incurred (a) to finance the acquisition, construction or improvement
of any real property or tangible personal property acquired by Company or
any of its Subsidiaries in the ordinary course of business; provided that
(1) such Liens shall be created within 180 days after the acquisition,
construction or improvement of such assets, and (2) the principal amount
of Indebtedness secured by any such Liens shall at no time exceed 100%,
and the proceeds of such Indebtedness shall be used to provide not less
than 75%, of the original purchase price of such asset or the amount
expended to construct or improve such asset, as the case may be; or (b) to
renew, extend or refinance any Indebtedness described in clause (a);
provided that the amount of any such Indebtedness does not exceed the
amount of Indebtedness so renewed, extended or refinanced which is unpaid
and outstanding immediately prior to such renewal, extension or
refinancing; and provided, further, that in the case of clause (a) or (b),
(1) such Liens attach solely to the assets financed with such
Indebtedness, together with asset sale proceeds from the sale of such
assets and any casualty insurance proceeds received with respect to the
destruction of or damage to such assets, (2) no recourse may be had under
the Indebtedness secured by such Lien against any Person other than the
borrower of such Indebtedness for the payment of principal, interest,
fees, costs or premium on such Indebtedness or for any claim based
thereon, and (3) the financial covenants under any Indebtedness secured by
such Liens are, in each case, no more restrictive than those set forth in
this Agreement;
(ix) Liens securing Indebtedness permitted pursuant to subsection
7.1(ix) to the extent such Liens were in existence prior to a Permitted
Acquisition; and
(x) Other Liens securing Indebtedness in an aggregate amount not
to exceed $2,000,000 at any time outstanding.
Notwithstanding anything contained herein to the contrary, the aggregate
amount of Indebtedness and other liabilities secured by Liens permitted under
clauses (v), (vi) and (x) above shall not exceed $4,000,000 outstanding at any
time.
B. Equitable Lien in Favor of Lenders. If Holdings or any of its
Subsidiaries shall create or assume any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, other than Liens excepted by
the provisions of subsection 7.2A, it shall make or cause to be made effective
provision whereby the Obligations will be secured by such Lien equally and
119
ratably with any and all other Indebtedness secured thereby as long as any such
Indebtedness shall be so secured; provided that, notwithstanding the foregoing,
this covenant shall not be construed as a consent by Requisite Lenders to the
creation or assumption of any such Lien not permitted by the provisions of
subsection 7.2A.
C. No Further Negative Pledges. Except with respect to specific property
encumbered to secure payment of particular Indebtedness or to be sold pursuant
to an executed agreement with respect to an asset sale, neither Holdings nor any
of its Subsidiaries shall enter into any agreement (other than the Senior Note
Indenture, the Senior Discount Debentures, the Second Priority Term Loan Credit
Documents, the Loan Documents or any other agreement evidencing acquired
Indebtedness or any agreement, note or indenture relating to any Indebtedness
under any debt basket, or any other agreement prohibiting only the creation of
Liens securing Subordinated Indebtedness) prohibiting the creation or assumption
of any Lien upon any of its properties or assets, whether now owned or hereafter
acquired.
D. No Restrictions on Subsidiary Distributions to Holdings or Other
Subsidiaries. Except as provided herein, Holdings will not, and will not permit
any of its Subsidiaries to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any such Subsidiary to (i) pay dividends or make any other
distributions on any of such Subsidiary's capital stock owned by Holdings or any
other Subsidiary of Holdings, (ii) repay or prepay any Indebtedness owed by such
Subsidiary to Holdings or any other Subsidiary of Holdings, (iii) make loans or
advances to Holdings or any other Subsidiary of Holdings, or (iv) transfer any
of its property or assets to Holdings or any other Subsidiary of Holdings,
except for such encumbrances or restrictions existing under or by reason of (a)
applicable law, (b) this Agreement and the other Loan Documents, (c) customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest of Company or any of its Subsidiaries, (d) customary
provisions restricting assignment of any licensing or other agreements entered
into by Company or any of its Subsidiaries in the ordinary course of business,
(e) the Senior Note Indenture, the Senior Discount Debentures, and the Second
Priority Term Loan Credit Documents or any agreement evidencing acquired
Indebtedness or any agreement, note or indenture relating to any Indebtedness
under any debt basket, and (f) customary provisions restricting the transfer of
assets subject to Liens permitted under subsections 7.2A.
7.3 Investments; Joint Ventures.
---------------------------
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, make or own any Investment in any Person, including any
Joint Venture, except:
(i) Holdings and its Subsidiaries may make and own Investments in
Cash Equivalents;
(ii) Holdings may continue to own the Investments owned by it as of
the Effective Date in Company, and Company and its Subsidiaries may
continue to own the Investments owned by them as of the Effective Date in
any Subsidiaries of Company and Holdings, Company and its Subsidiaries may
make Investments in Subsidiary Guarantors;
120
(iii) Holdings and its Subsidiaries may own Investments in their
respective Subsidiaries to the extent that such Investments reflect an
increase in the value of such Subsidiaries;
(iv) Company and its Subsidiaries may make intercompany loans to
the extent permitted under subsections 7.1(iv) and (xiv);
(v) Company and its Subsidiaries may continue to own the
Investments owned by them and described in Schedule 7.3 annexed hereto;
(vi) Company and its Subsidiaries may make loans and advances to
employees, officers, executives or consultants to Company and its
Subsidiaries in the ordinary course of business of Company and its
Subsidiaries as presently conducted for the purpose of purchasing
Securities of Holdings so long as no cash is paid by Holdings or any of
its Subsidiaries in connection the acquisition of such Securities;
(vii) Company and its Subsidiaries may own Investments (including
debt obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising
in the ordinary course of business;
(viii) Holdings may make equity contributions to the capital of
Company and the Subsidiary Guarantors;
(ix) Holdings, Company and the Subsidiary Guarantors may make and
own Investments in Subsidiary Guarantors pursuant to Permitted
Acquisitions under subsection 7.7(viii);
(x) Company and its Subsidiaries may make and own Investments in
Subsidiary Guarantors consisting of intercompany Indebtedness of such
Subsidiary Guarantors converted to equity Investments, provided that the
underlying intercompany Indebtedness was permitted pursuant to Section 7.1
at the time of such conversion;
(xi) Company and the Subsidiary Guarantors may make and own
Investments consisting of notes received in connection with any Asset Sale
permitted hereunder, provided that the aggregate outstanding principal
amount of such notes does not exceed $1,000,000 at any time and such notes
are secured by a first priority perfected lien on such assets sold;
(xii) Holdings, Company and the Subsidiary Guarantors may make and
own Investments permitted under Section 7.7;
(xiii) Company and its Subsidiaries may make deposits to landlords
in the ordinary course of business pursuant to an operating lease to
secure the performance by the Company and its Subsidiaries under such
lease so long as the Company and its Subsidiaries are in compliance with
subsection (iv) of Section 7.2;
121
(xiv) Company and its Subsidiaries may acquire and hold dated
receivables owing to it, if created in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms of the
Company and its Subsidiaries; and
(xv) Holdings and its Subsidiaries may make and own other
Investments in an aggregate amount not to exceed $1,000,000 during each
Fiscal Year.
7.4 Contingent Obligations.
----------------------
Holdings shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create or become or remain liable with respect to any
Contingent Obligation, except:
(i) Subsidiaries of Holdings may become and remain liable with
respect to Contingent Obligations in respect of the Subsidiary Guaranty,
and Holdings may become and remain liable with respect to Contingent
Obligations in respect of the Holdings Guaranty;
(ii) Company may become and remain liable with respect to
Contingent Obligations in respect of Letters of Credit;
(iii) Company may become and remain liable with respect to
Contingent Obligations under Hedge Agreements required under subsection
6.10 or otherwise incurred in the ordinary course of business;
(iv) Holdings, Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations in respect of (a) customary
indemnification and purchase price adjustment obligations incurred in
connection with Permitted Acquisitions and Permitted Asset Sales, (b)
endorsements of instruments for deposit or collection in the ordinary
course of business and (c) standard contractual indemnification entered
into in the ordinary course of business;
(v) Company may remain liable with respect to existing Contingent
Obligations described on Schedule 7.4 attached hereto;
(vi) Holdings and the Subsidiary Guarantors may become and remain
liable with respect to Contingent Obligations arising under their
guaranties of and indemnification obligations related to the Senior Notes,
the Second Priority Term Loans and the Third Priority Term Loans as are
required under the Senior Note Indenture, the Second Priority Term Loan
Credit Documents and the Third Priority Term Loan Documents, respectively;
(vii) Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations consisting of guarantees of
obligations of any Subsidiary of Company under any worker's compensation
self-insurance program of such Subsidiary administered in accordance with
applicable law relating to worker's compensation;
(viii) Holdings, Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations consisting of guarantees of
Indebtedness, leases
122
and other contractual obligations permitted to be incurred by Company or
any of the Subsidiary Guarantors hereunder; and
(ix) Holdings, Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations not otherwise permitted
under this Section 7.4; provided that the maximum aggregate liability,
contingent or otherwise, of Holdings, Company and its Subsidiaries in
respect of all such Contingent Obligations shall at no time exceed
$4,000,000.
7.5 Restricted Junior Payments.
--------------------------
Holdings and Company shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, declare, order, pay, make or
set apart any sum for any Restricted Junior Payment; provided that (i) any
Subsidiary of Company may pay dividends to Company or a Subsidiary Guarantor;
(ii) Company may make regularly scheduled payments of principal and interest in
respect of the Senior Notes in accordance with the terms thereof; (iii) Company
may make Restricted Junior Payments to Holdings to the extent required for
Holdings to make, and Holdings may make, regularly scheduled payments of
interest in respect of the Shareholder Subordinated Notes in accordance with the
terms of, and only to the extent required by, and subject to the subordination
provisions contained in, such Shareholder Subordinated Notes, as applicable;
(iv) Holdings may pay regularly scheduled distributions on the Preferred Units,
Series B Preferred Units and Qualified Preferred Units pursuant to the terms
thereof solely through the issuance of additional shares of such units, or by an
increase in the liquidation preference thereof; (v) Company may exchange the
Senior Notes as contemplated by the Senior Note Indenture, and Holdings may
exchange the Senior Discount Debentures in accordance with the Senior Discount
Indenture; (vi) Company may make Restricted Junior Payments to Holdings and the
General Partner, and Holdings may make Restricted Junior Payments, (a) to the
extent necessary to permit Holdings to pay (I) reasonable accounting, legal, SEC
related, and similar fees and expenses and fees and expenses to directors or
members of board of managers of Holdings or the General Partner provided that
the aggregate amount thereof does not exceed $1,500,000 during any Fiscal Year
and (II) customary indemnification payments to directors or members of board of
managers of Holdings or the General Partner, and (b) to the partners of Holdings
and the General Partner for Permitted Tax Distributions; (vii) so long as no
Event of Default shall have occurred and be continuing, Company may make
Restricted Junior Payments to Holdings and the General Partner, and Holdings and
the General Partner may make Restricted Junior Payments, to permit the payment
of the Bain Management Fees under the Bain Advisory Services Agreement to the
extent permitted under Section 7.15; (viii) Company may make Restricted Junior
Payments to Holdings and the General Partner to the extent required for Holdings
and General Partner to make, and Holdings may make, Restricted Junior Payments
in an aggregate amount not to exceed $3,000,000 in any Fiscal Year to the extent
necessary to make repurchases of Securities (and options or warrants to purchase
such Securities) of Holdings from employees upon termination (including by
reason of death, disability or retirement) of such employees, provided that,
such amount for any Fiscal Year shall be increased by an amount equal to the
excess, if any, of such amount for the previous Fiscal Year (as adjusted in
accordance with this proviso) over the actual amount expended for such previous
Fiscal Year; provided further that, such amount shall be reduced by the
aggregate amount of all principal and interest payments made on any Shareholder
Subordinated Notes permitted under subsection
123
7.1(vii) in such Fiscal Year; provided further that, such amount for any Fiscal
Year shall be increased by an amount equal to the proceeds of a substantially
concurrent sale for cash of Securities of Holdings or the Company; (ix) Holdings
or the Company may make Restricted Junior Payments in connection with
repurchases of equity Securities deemed to occur upon the exercise of stock
options but only to the extent that such Securities represent the exercise price
thereof; (x) in the event that any letter of intent or purchase agreement
entered into in connection with a Permitted Acquisition is terminated and the
Company or any Subsidiary is entitled to a reimbursement of any ▇▇▇▇ ▇▇▇▇▇▇▇
money deposit made by it in connection therewith, the Company may make a
Restricted Junior Payment to Holdings and the General Partner, and Holdings may
make a Restricted Junior Payment, in an amount not to exceed the amount of such
reimbursement payment so long as no Potential Event of Default or Event of
Default then exists and only to the extent that such ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits
required to be made by the Company or such Subsidiary was funded solely with new
cash equity contributions to Holdings; (xi) Holdings may issue Common Units to
the holders of Preferred Units or Series B Preferred Units upon conversion
thereof; and (xii) Holdings may acquire its equity Securities solely in exchange
for other equity Securities permitted to be issued hereunder provided that such
issuance is not detrimental to the interests of the Lenders.
7.6 Financial Covenants.
-------------------
A. Minimum Interest Coverage Ratio. Holdings and Company shall not
permit the ratio of (i) Consolidated Adjusted EBITDA to (ii) Consolidated
Interest Expense (excluding therefrom, for purposes of this subsection 7.6A
only, interest accrued or paid on the Third Priority Term Loan Note, the accrued
amount of the Success Fee, including any interest thereon, the amount of any
write-off or amortization of deferred financing costs, interest on deferred
compensation or payments made to obtain Interest Rate Agreements which would
otherwise be included in Consolidated Interest Expense) for any four-Fiscal
Quarter period ending on the last day of each Fiscal Quarter during the term of
this Agreement to be less than 1.5 to 1.0.
B. Maximum Leverage Ratio. Holdings and Company shall not permit the
Leverage Ratio as of the last day of each Fiscal Quarter during the term of this
Agreement to exceed the ratio set forth below opposite such Fiscal Quarter:
-------------------------------------------------------------------------
Fiscal Quarter Ending Maximum Leverage Ratio
--------------------- ----------------------
-------------------------------------------------------------------------
March 31, 2002 6.2 to 1.0
-------------------------------------------------------------------------
June 30, 2002 6.9 to 1.0
-------------------------------------------------------------------------
September 30, 2002 7.3 to 1.0
-------------------------------------------------------------------------
December 31, 2002 6.9 to 1.0
-------------------------------------------------------------------------
March 31, 2003 6.5 to 1.0
-------------------------------------------------------------------------
June 30, 2003 and each Fiscal 5.1 to 1.0
Quarter thereafter
-------------------------------------------------------------------------
124
C. Maximum Revolver Leverage Ratio. Holdings and Company shall not
permit the Revolver Leverage Ratio as of the last day of each Fiscal Quarter
during the term of this Agreement to exceed the ratio set forth below opposite
such Fiscal Quarter:
-------------------------------------------------------------------------
Fiscal Quarter Ending Revolver Leverage Ratio
--------------------- -----------------------
-------------------------------------------------------------------------
March 31, 2002 5.7 to 1.0
-------------------------------------------------------------------------
June 30, 2002 6.3 to 1.0
-------------------------------------------------------------------------
September 30, 2002 6.7 to 1.0
-------------------------------------------------------------------------
December 31, 2002 6.3 to 1.0
-------------------------------------------------------------------------
March 31, 2003 5.9 to 1.0
-------------------------------------------------------------------------
June 30, 2003 and each Fiscal 4.5 to 1.0
Quarter thereafter
-------------------------------------------------------------------------
D. Minimum Revolver Availability. Until the Revolving Loan Commitments
are terminated and the aggregate Revolving Loan Exposure of each Lender is
reduced to zero, the Company shall have Minimum Revolver Availability at all
times during each of the following periods of at least the amount set forth
opposite such month:
-------------------------------------------------------------------------
Period Minimum Revolver Availability Amount
------ ------------------------------------
-------------------------------------------------------------------------
October 1, 2002 to and $ 2,500,000
including October 31, 2002
-------------------------------------------------------------------------
November 1, 2002 to and $ 5,000,000
including November 30, 2002
-------------------------------------------------------------------------
December 1, 2002 to and $12,500,000
including December 31, 2002
-------------------------------------------------------------------------
January 1, 2003 to and $18,500,000
including January 30, 2003
-------------------------------------------------------------------------
October 1, 2003 to and $ 2,500,000
including October 31, 2003
-------------------------------------------------------------------------
November 1, 2003 to and $ 5,000,000
including November 30, 2003
-------------------------------------------------------------------------
125
-------------------------------------------------------------------------
December 1, 2003 to and $12,500,000
including December 31, 2003
-------------------------------------------------------------------------
January 1, 2004 to and $18,500,000
including January 30, 2004
-------------------------------------------------------------------------
Notwithstanding the foregoing, upon delivery by Company of the Financial Plan
for Fiscal Year 2003 pursuant to Section 6.1(xv), Company, the Administrative
Agent and the Syndication Agent agree to negotiate in good faith for a period of
15 days following receipt of such Financial Plan to determine whether a mutually
acceptable adjustment should be made to the Minimum Revolver Availability
Amounts set forth for the monthly periods from October 1, 2003 to and including
January 30, 2004. If agreement is reached in writing by Company, the
Administrative Agent and the Syndication Agent with respect thereto on or prior
to the fifteenth day following the receipt of such Financial Plan, the Minimum
Revolver Availability Amounts for such periods shall be deemed to be the amounts
set forth in such written agreement
E. Maximum Capital Expenditures. Holdings and its Subsidiaries shall not
make or incur (a) Consolidated Capital Expenditures during any Fiscal Year if
the aggregate amount of Consolidated Capital Expenditures for Holdings and its
Subsidiaries would exceed Thirty Million Dollars ($30,000,000) for Fiscal Year
2002, Forty Million Dollars ($40,000,000) for Fiscal Year 2003 and Fifty Million
Dollars ($50,000,000) for Fiscal Year 2004, and (b) Net Capital Expenditures
during any Fiscal Year if the aggregate amount of Net Capital Expenditures for
Holdings and its Subsidiaries would exceed Ten Million Dollars ($10,000,000) for
Fiscal Year 2002, Twenty Million Dollars ($20,000,000) for Fiscal Year 2003 and
Thirty Million Dollars for Fiscal Year 2004; provided that Holdings and its
Subsidiaries may carry forward from one Fiscal Year to the immediately following
Fiscal Year (i) the unused dollar amount of the Consolidated Capital
Expenditures limitation (which shall be the amount by which the dollar amount of
Consolidated Capital Expenditures specified in clause (a) above for such Fiscal
Year exceeds the Consolidated Capital Expenditures made or incurred during such
Fiscal Year) for such Fiscal Year (the "Gross Carry Forward Amount") and (ii)
any Net Capital Expenditures Proceeds received during such Fiscal Year and not
used for the purpose of complying with the Net Capital Expenditure limitation
for such Fiscal Year set forth in clause (b) above (the "Net Carry Forward
Amount") if the following conditions have been satisfied: (1) the EBITDA
Criteria has been met for such Fiscal Year, (2) the amount of the Gross Carry
Forward Amount being carried forward to the immediately following Fiscal Year
plus the Net Carry Forward Amount being carried forward to the immediately
following Fiscal Year does not exceed Ten Million Dollars ($10,000,000), (3) (A)
the amount of the Consolidated Capital Expenditures made or incurred in such
Fiscal Year plus the Consolidated Capital Expenditures made or incurred in the
immediately preceding Fiscal Year does not exceed (B) $70,000,000 with respect
to Fiscal Year 2003 and $90,000,000 with respect to Fiscal Year 2004, and (4)
(A) the amount of the Net Capital Expenditures made or incurred in such Fiscal
Year plus the Net Capital Expenditures made or incurred in the immediately
preceding Fiscal Year does not exceed (B) $30,000,000 with respect to Fiscal
Year 2003 and $50,000,000 with respect to Fiscal Year 2004.
126
F. Certain Calculations. With respect to any period during which a
Permitted Acquisition shall have occurred, for purposes of determining
compliance with the financial covenants set forth in this subsection 7.6 and in
Section 2.4(B), Consolidated Adjusted EBITDA and Consolidated Interest Expense
may be calculated with respect to such periods and such New Business on a pro
forma basis (including (i) pro forma adjustments arising out of events which are
directly attributable to a specific transaction, are factually supportable and
are expected to have a continuing impact, in each case determined on a basis
consistent with Article 11 of Regulation S-X promulgated under the Securities
Act and as interpreted by the staff of the Securities and Exchange Commission as
of January 1, 1997, and (ii) cost savings resulting from head count reduction,
closure of facilities and similar restructuring charges whether (x) resulting
from decisions made by Company or (y) implemented by the management of the New
Business within the six-month period immediately preceding the closing of such
Permitted Acquisition (provided that the cost savings described in clause (y)
were supportable and quantifiable by the underlying accounting records of such
business), which pro forma adjustments shall be certified by the principal
financial officer or principal accounting officer of Company) using the
historical financial statements of the New Business so acquired and the
consolidated financial statements of Holdings and its Subsidiaries which shall
be reformulated (i) as if such Permitted Acquisition, and any acquisitions which
have been consummated during such period, and any Indebtedness or other
liabilities incurred or repaid in connection with any such acquisition had been
consummated or incurred or repaid at the beginning of such period (and assuming
that such Indebtedness bears interest during any portion of the applicable
measurement period prior to the relevant acquisition at the of the interest
rates applicable to outstanding Loans as of the date of calculation of such pro
forma adjustments), and (ii) otherwise in conformity with certain procedures to
be agreed upon between Administrative Agent and Company, all such calculations
to be in form and substance reasonably satisfactory to Administrative Agent.
Notwithstanding the foregoing, no such pro forma adjustments or calculations
shall be permitted unless (i) Company has delivered such proposed pro forma
adjustments and calculations to the Administrative Agent, together with such
other information as the Administrative Agent may reasonably request, within
three days following the consummation of such Permitted Acquisition and (ii) the
Administrative Agent shall have consented to such pro forma adjustments and
calculations.
7.7 Restriction on Fundamental Changes; Permitted Asset Sales and
-------------------------------------------------------------
Acquisitions.
------------
Holdings shall not, and shall not permit any of its Subsidiaries, without
the express written consent of the Requisite Lenders, (a) to enter into any
transaction of merger or consolidation, or liquidate, wind-up or dissolve
itself, or to suffer any liquidation or dissolution, (b) to convey, sell,
transfer or otherwise dispose of, in one transaction or a series of transactions
all or any part of its property or assets, whether now owned or hereafter
acquired, or (c) to acquire by purchase or otherwise any assets or become a
party to any merger, sale, acquisition or other business combination thereof,
except:
(i) Company and its Subsidiaries may make Consolidated Capital
Expenditures in the ordinary course of business but only to the extent
that such is in compliance with Section 7.6E of this Agreement;
127
(ii) Company and its Subsidiaries may dispose of obsolete,
uneconomical, negligible, worn out or surplus property (including
Intellectual Property) in the ordinary course of business provided that
the aggregate fair market value of all such property does not exceed
$2,000,000 during any Fiscal Year (it being understood that any individual
disposal in the ordinary course of business of personal property not
included in the Borrowing Base Amount having a fair market value of less
than $50,000 will not be measured against the $2,000,000 basket);
(iii) Company and its Subsidiaries may, in the ordinary course of
business, license as licensee or licensor patents, trademarks, copyrights
and know-how to or from third Persons, so long as any such license by
Company or any of its Subsidiaries in its capacity as licensor is
permitted to be assigned pursuant to the Collateral Documents (to the
extent that a security interest in such patents, trademarks, copyrights
and know-how is granted thereunder) and does not otherwise prohibit the
granting of a Lien by Company or any of its Subsidiaries pursuant to the
Collateral Documents in the Intellectual Property covered by such license;
(iv) Holdings, Company and its Subsidiaries may sell Cash
Equivalents for cash;
(v) Holdings and its Subsidiaries may convert (whether by merger,
acquisition or otherwise, including the establishment of new corporations
to do so) from limited partnerships to "C" corporations or limited
liability companies so long as the security interests granted to the
Collateral Agent for the benefit of the Lenders pursuant to the Collateral
Documents shall remain in full force and effect and perfected (to at least
the same extent as in effect immediately prior to such conversion) and
Holdings and Company comply with the provisions of subsection 10.22;
(vi) Holdings, Company and its Subsidiaries may make Investments
permitted pursuant to subsection 7.3;
(vii) Permitted Asset Sales;
(viii) Permitted Acquisitions;
(ix) Company and any of its Subsidiaries may sell non-core assets
acquired by it in connection with a Permitted Acquisition, provided that
(A) such sale is consummated within six months following the date such
Permitted Acquisition was consummated and (B) the proceeds of such non-
core asset sale are applied to prepay the Loans in accordance with
subsection 2.4(B)(iii)(a);
(x) Holdings may issue Common Units, Preferred Units, Series B
Preferred Units and Qualified Preferred Units (i) to employees of Holdings
or any of its Subsidiaries with respect to hiring and retaining such
employees or (ii) to third parties in connection with a Permitted
Acquisition;
(xi) Company or its Subsidiaries may sell the parcels of real
property pursuant to transactions described on Schedule 7.7;
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(xii) Company and its Subsidiaries may discount without recourse
accounts receivable arising in the ordinary course of business, but only
in connection with the compromise or collection thereof;
(xiii) Company and its Subsidiaries may lease (pursuant to operating
leases in the ordinary course of business) or license personal property in
the ordinary course of business;
(xiv) any Subsidiary Guarantor may be merged with or into Company
or any other Subsidiary Guarantor, or all or any part of its business,
property or assets may be conveyed, sold, leased, transferred or otherwise
disposed of, in one transaction or a series of related transactions to
Company or any other Subsidiary Guarantor, provided that in the case of a
merger involving Company, Company shall be the continuing or surviving
corporation; and
(xv) Company and its Subsidiaries may issue its equity interests
to a Subsidiary Guarantor provided that the Collateral Agent has a first
priority Lien in such equity interests.
7.8 Fiscal Year
-----------
Holdings and Company shall not change their Fiscal Year-end from December
31.
7.9 Sales and Lease-Backs.
---------------------
Except with respect to the sale leaseback transactions set forth on
Schedule 7.9 and for Permitted Sale Leaseback Transactions, Company shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly, become
or remain liable as lessee or as a guarantor or other surety with respect to any
lease, whether an Operating Lease or a Capital Lease, of any property (whether
real, personal or mixed), whether now owned or hereafter acquired, (i) which
Company or any of its Subsidiaries has sold or transferred or is to sell or
transfer to any other Person (other than Holdings or any of its Subsidiaries) or
(ii) which Company or any of its Subsidiaries intends to use for substantially
the same purpose as any other property which has been or is to be sold or
transferred by Company or any of its Subsidiaries to any Person (other than
Holdings or any of its Subsidiaries) in connection with such lease; provided
that a transaction whereby the Company or one of its Subsidiaries acquires or is
deemed to acquire property and then determines to pay the purchase price for
such property by entering into an Operating Lease or a Capital Lease and the
lessor under such lease requires that the Company or such Subsidiary execute or
join in the execution of a ▇▇▇▇ of sale or similar document with respect to such
property as part of such transaction, and such transaction is completed within
90 days after the acquisition of such property by the Company or such
Subsidiary, such transaction shall not be deemed a sale leaseback transaction
under this Section 7.9.
7.10 Sale or Discount of Receivables.
-------------------------------
Holdings shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, sell with recourse, or discount or otherwise sell for
less than the face value thereof, any of its notes or accounts receivable;
provided, however, that Company and its Subsidiaries may, in the
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exercise of their reasonable business judgment in connection with efforts to
collect amounts owed thereunder, discount or sell (to the extent permitted under
subsection 7.7) for less than the face value thereof any accounts receivable.
7.11 Transactions with Shareholders and Affiliates.
---------------------------------------------
Holdings shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, enter into or permit to exist any transaction (including
the purchase, sale, lease or exchange of any property or the rendering of any
service) with any holder of 5% or more of any class of equity Securities of
Holdings or with any Affiliate of Holdings or of any such holder, on terms that
are less favorable to Holdings or that Subsidiary, as the case may be, than
those that might be obtained at the time from Persons who are not such a holder
or Affiliate; provided that the foregoing restriction shall not apply to (i) any
transaction between Holdings and any of its Subsidiaries or between any of its
Subsidiaries, (ii) any payment from Company to Holdings and the General Partner
expressly permitted under subsection 7.5 and any payment by Holdings permitted
under subsection 7.5, (iii) the payments permitted under Section 7.15, (iv) any
employment agreement entered into by Holdings or any of its Subsidiaries in the
ordinary course of business, (v) any issuance of Common Units or Preferred Units
or Series B Preferred Units or Qualified Preferred Units in connection with
employment arrangements, stock options and stock ownership plans of Holdings or
any of its Subsidiaries entered into in the ordinary course of business and the
performance of obligations thereunder, (vi) performance of obligations under the
Recapitalization Agreement, (vii) performance of obligations under the Related
Agreements, (viii) customary indemnities paid to the directors of the Boards of
Directors or the managers of the Board of Managers, as the case may be, of
Holdings and its Subsidiaries; (ix) reasonable and customary fees and expenses
paid to members of the Boards of Directors or Board of Managers, as the case may
be, of Holdings and its Subsidiaries in an aggregate amount not to exceed
$1,000,000 in any calendar year, (x) the transactions under the Third Priority
Term Loan Documents and (xi) transactions described in Schedule 7.11 annexed
hereto.
7.12 Disposal of Subsidiary Interests.
--------------------------------
Except as required under the Collateral Documents and except for any sale
of 100% of the capital stock, partnership interests or other equity Securities
of any of its Subsidiaries in compliance with the provisions of subsection 7.7,
Holdings shall not:
(i) directly or indirectly sell, assign, pledge or otherwise
encumber or dispose of any shares of capital stock, partnership interests
or other equity Securities of any of its directly owned Subsidiaries,
except to qualify directors if required by applicable law or to another
Subsidiary of Holdings; or
(ii) permit any of its Subsidiaries directly or indirectly to
sell, assign, pledge or otherwise encumber or dispose of any shares of
capital stock, partnership interests or other equity Securities of any of
its Subsidiaries (including such Subsidiary), except to Company, another
Subsidiary of Holdings (subject to the restrictions on such disposition
otherwise imposed herein under), or to qualify directors if required by
applicable law.
7.13 Conduct of Business.
-------------------
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From and after the Effective Date, Company shall not, and shall not permit
any of its Subsidiaries to, engage in any business other than (a) the businesses
engaged in by Company and its Subsidiaries on the Effective Date and similar or
related or supportive businesses and (b) such other lines of business as may be
consented to by Requisite Lenders. From and after the Effective Date, neither
Holdings nor General Partner shall engage in any business or have any assets
(including Intellectual Property) other than (i) owning partnership interests of
Company or equity interests of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Holdings Capital Corporation or any
other Subsidiary of Holdings, (ii) the issuance of and activities related to the
maintenance and servicing of Shareholder Subordinated Notes (or similar notes in
the case of the General Partner), the Permitted Seller Notes, the Senior
Discount Debentures, other debt and guaranty obligations permitted to be
incurred hereunder and the partnership or equivalent equity interests of
Holdings (or the General Partner) as permitted hereunder, (iii) the entering
into, and the performance of its obligations under, the Pledge and Security
Agreement, the Related Agreements and the Second Priority Term Loan Credit
Documents to which it is a party to which it is a party, (iv) the receipt of
Cash distributions from Company in accordance with the provisions hereof, (v)
activities associated with expenses paid with any dividends paid to Holdings or
the General Partner which are permitted under subsection 7.5; (vii) the entering
into and performance of its obligations in connection with Permitted
Acquisitions and (viii) holding intercompany loans owed to it. From after the
Effective Date, Company and Holdings shall not permit ▇▇▇▇▇▇▇ ▇▇▇▇▇ Holdings
Capital Corporation and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation to engage in any
activities other than entering into and the performance of their obligations
under the Pledge and Security Agreement, the Related Agreements, the Second
Priority Term Loan Credit Documents, the Third Priority Term Loan Documents and
the Subsidiary Guaranty to which it is a party. Notwithstanding the foregoing,
Holdings and the General Partner (and the corporations referred to in the
immediately preceding sentence) may engage in activities incidental to (a) the
maintenance of its existence in compliance with applicable law, (b) legal, tax
and accounting matters in connection with any of the foregoing activities and
(c) entering into, and performing its obligations under, this Agreement, the
Related Agreements, the Second Priority Term Loan Credit Documents, the Third
Priority Term Loan Documents and the Loan Documents to which it is a party.
Neither Company nor Holdings shall create or permit to exist any Subsidiary
other than Subsidiary Guarantors.
7.14 Amendments of Documents Relating to Subordinated Indebtedness and Senior
------------------------------------------------------------------------
Notes; Amendments of Term Loan Credit Documents.
-----------------------------------------------
A. Amendments or Waivers of Certain Agreements. None of Holdings, Company
nor any of their respective Subsidiaries will agree to any amendment to, or
waive any of its rights under, any Related Agreement (other than in accordance
with Section 7.14(B)) after the Effective Date if any such amendment or waiver
would, individually or in the aggregate, reasonably be expected to be materially
adverse to Lenders without in each case obtaining the prior written consent of
Requisite Lenders to such amendment or waiver.
B. Amendments of Documents Relating to Subordinated Indebtedness and
Senior Notes. Holdings and Company shall not, and shall not permit any of their
respective Subsidiaries to, amend or otherwise change the terms of any
Subordinated Indebtedness or Senior Notes, or make any payment consistent with
an amendment thereof or change thereto, if the effect of such amendment or
change is to increase the interest rate on such Subordinated
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Indebtedness or Senior Notes, change (to earlier dates) any dates upon which
payments of principal or interest are due thereon, change any event of default
or condition to an event of default with respect thereto (other than to
eliminate any such event of default or increase any grace period related
thereto), change the redemption, prepayment or defeasance provisions thereof,
change the subordination provisions of such Subordinated Indebtedness or any
guaranty of any Subordinated Indebtedness or Senior Notes), or if the effect of
such amendment or change, together with all other amendments or changes made, is
to increase materially the obligations of the obligor thereunder or to confer
any additional rights on the holders of such Subordinated Indebtedness (or a
trustee or other representative on their behalf) which would be materially
adverse to Holdings, Company or Lenders.
C. Amendments of Second Priority Term Loan Credit Documents. Holdings and
Company shall not, and shall not permit any of their respective Subsidiaries to,
amend or otherwise change the terms of any of the Second Priority Term Loan
Credit Documents, or make any payment consistent with an amendment thereof or a
change thereto, that would have the effect of (i) changing (to earlier dates)
any dates upon which payments of principal or interest are due on the Second
Priority Term Loans, (ii) reducing the percentage specified in the definition of
"Requisite Lenders" in the Second Priority Term Loan Credit Agreement, or (iii)
changing the prepayment provisions of the Second Priority Term Loan Credit
Agreement in a manner that disproportionately disadvantages the Lenders relative
to the lenders under the Second Priority Term Loan Credit Agreement or confers
additional rights on the lenders under the Second Priority Term Loan Credit
Agreement which would be adverse to Lenders, without the prior written consent
of Requisite Lenders under this Agreement.
D. Amendments of Third Priority Term Loan Documents. Holdings and Company
shall not, and shall not permit any of their respective Subsidiaries to, amend
or otherwise change the terms of any of the Third Priority Term Loan Documents
(other than to reduce the interest rate, defer the payment of principal and
interest, forgive the obligations in whole or in part, convert the obligations
thereunder to equity of Holdings, or assign the obligations to a Related Party
of ▇▇▇▇), or make any payment consistent with an amendment thereof or a change
thereto, without the prior written consent of Requisite Lenders under this
Agreement.
7.15 ▇▇▇▇ Management Fee.
-------------------
Holdings, Company and its Subsidiaries shall not pay any management or
related fees to ▇▇▇▇ or its Affiliates except that after January 1, 2003, the
▇▇▇▇ Management Fees may be paid in accordance with the ▇▇▇▇ Advisory Services
Agreement so long as no Event of Default has occurred and is continuing,
provided, however, that any portion of the ▇▇▇▇ Management Fees that is not paid
when due shall accrue and may be paid after the Obligations are paid in full in
cash.
SECTION 8.
EVENTS OF DEFAULT
If any of the following conditions or events ("Events of Default") shall
occur:
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8.1 Failure to Make Payments When Due.
---------------------------------
Failure by Company to pay any installment of principal of any Loan when
due, whether at stated maturity, by acceleration, by notice of voluntary
prepayment, by mandatory prepayment (other than a mandatory prepayment required
by subsection 2.4(B)(iii)(g)(II)) or otherwise; failure by Company to pay when
due any amount payable to an Issuing Lender in reimbursement of any drawing
under a Letter of Credit; or failure by Company to pay any interest on any Loan
or any fee or the mandatory prepayment required pursuant to subsection
2.4(B)(iii)(g)(II) or any other amount due under this Agreement within three
Business Days after the date due; or
8.2 Default in Other Agreements.
---------------------------
(i) Failure of Holdings or any of its Subsidiaries to pay when due any
principal of or interest on or any other amount payable in respect of one or
more items of Indebtedness (other than Indebtedness referred to in subsection
8.1) or Contingent Obligations in an individual principal amount of $5,000,000
or more or with an aggregate principal amount of $10,000,000 or more, in each
case beyond the end of any grace period provided therefor; or (ii) breach or
default by Holdings or any of its Subsidiaries with respect to any other
material term of (a) one or more items of Indebtedness or Contingent Obligations
in the individual or aggregate principal amounts referred to in clause (i) above
or (b) any loan agreement, mortgage, indenture or other agreement relating to
such item(s) of Indebtedness or Contingent Obligation(s), if the effect of such
breach or default is to cause, or to permit the holder or holders of that
Indebtedness or Contingent Obligation(s) (or a trustee on behalf of such holder
or holders) to cause, that Indebtedness or Contingent Obligation(s) to become or
be declared due and payable prior to its stated maturity or the stated maturity
of any underlying obligation, as the case may be (upon the giving or receiving
of notice, lapse of time, both, or otherwise); or
8.3 Breach of Certain Covenants.
---------------------------
Failure of Holdings or Company to perform or comply with any term or
condition contained in subsection 2.5 or 6.2 or Section 7 of this Agreement;
provided, however, that such failure with respect to the covenants contained in
subsections 7.1, 7.2, 7.3 and 7.4 shall not constitute an Event of Default for
ten days after such failure so long as Company is diligently pursuing the cure
of such failure; provided, further, that such failure with respect to the
covenant contained in subsection 7.6(D) shall not constitute an Event of Default
for three Business Days after such failure; or
8.4 Breach of Warranty.
------------------
Any representation, warranty, certification or other statement made by any
Loan Party in any Loan Document or in any statement or certificate at any time
given by any Loan Party in writing pursuant hereto or thereto or in connection
herewith or therewith shall be false in any material respect on the date as of
which made; or
8.5 Other Defaults Under Loan Documents.
-----------------------------------
Any Loan Party shall default in the performance of or compliance with any
term contained in this Agreement or any of the other Loan Documents, other than
any such term
133
referred to in any other subsection of this Section 8, and such default shall
not have been remedied or waived within 30 days after the earlier of (i) an
officer of Holdings, Company or such Loan Party becoming aware of such default
or (ii) receipt by Holdings, Company and such Loan Party of notice from
Administrative Agent or any Lender of such default; or
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc.
----------------------------------------------------
(i) A court having jurisdiction in the premises shall enter a decree or
order for relief in respect of Holdings or any of its Subsidiaries in an
involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree
or order is not stayed; or any other similar relief shall be granted under any
applicable federal or state law; or (ii) an involuntary case shall be commenced
against Holdings or any of its Subsidiaries under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over Holdings or any of its Subsidiaries, or
over all or a substantial part of its property, shall have been entered; or
there shall have occurred the involuntary appointment of an interim receiver,
trustee or other custodian of Holdings or any of its Subsidiaries for all or a
substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of the
property of Holdings or any of its Subsidiaries, and any such event described in
this clause (ii) shall continue for 60 days unless dismissed, bonded or
discharged; or
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.
--------------------------------------------------
(i) Holdings or any of its Subsidiaries shall have an order for relief
entered with respect to it or commence a voluntary case under the Bankruptcy
Code or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property; or Holdings or any of its Subsidiaries shall make any
assignment for the benefit of creditors; or (ii) Holdings or any of its
Subsidiaries shall be unable, or shall fail generally, or shall admit in writing
its inability, to pay its debts as such debts become due; or the Board of
Directors of Holdings or any of its Subsidiaries (or any committee thereof)
shall adopt any resolution or otherwise authorize any action to approve any of
the actions referred to in clause (i) above or this clause (ii); or
8.8 Judgments and Attachments.
-------------------------
Any money judgment, writ or warrant of attachment or similar process
involving (i) in any individual case an amount in excess of $5,000,000 or (ii)
in the aggregate at any time an amount in excess of $10,000,000 (in either case
not adequately covered by insurance from a solvent and unaffiliated insurance
company) shall be entered or filed against Holdings or any of its Subsidiaries
or any of their respective assets and shall remain undischarged, unvacated,
unbonded or unstayed for a period of 60 days (or in any event later than five
days prior to the date of any proposed sale thereunder); or
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8.9 Dissolution.
-----------
Any order, judgment or decree shall be entered against Holdings or any of
its Subsidiaries decreeing the dissolution or split up of Holdings or that
Subsidiary and such order shall remain undischarged or unstayed for a period in
excess of 30 days; or
8.10 Employee Benefit Plans.
----------------------
There shall occur one or more ERISA Events which individually or in the
aggregate results in or might reasonably be expected to result in liability of
Holdings or any of its Subsidiaries in excess of $7,500,000 during the term of
this Agreement; or
8.11 Change in Control.
-----------------
(i) Holdings and its wholly-owned Subsidiaries shall cease to own and
control 100% of the limited partnership interests of Company, or General Partner
shall cease to own and control 100% of the general partnership interests of
Company; (ii) prior to an initial public offering by Holdings (or any successor
pursuant to subsection 10.22,) (x) ▇▇▇▇ Investors and their Related Parties
shall cease, directly or indirectly, to have the right to elect or appoint a
majority of the Board of Managers of the General Partner if Holdings is a
limited partnership or the Board of Directors of Holdings if Holdings has become
a "C" corporation in accordance with the terms hereof, in either case through
stock or membership ownership, voting agreement or otherwise or (y) for so long
as Holdings is a partnership, the occurrence of any transaction which results in
the General Partner no longer being the sole general partner of Holdings; (iii)
▇▇▇▇ Investors and their Related Parties shall cease to beneficially own,
directly or indirectly, 71% of the economic interests of Holdings or General
Partner owned by ▇▇▇▇ Investors and their Related Parties on Closing Date; (iv)
after an initial public offering of Holdings (or any successor thereto pursuant
to subsection 10.22,) any Person (other than ▇▇▇▇ Investors and their Related
Parties) shall (y) have a greater economic or voting interest in Holdings or
General Partner (or any successor thereto pursuant to subsection 10.22) than
▇▇▇▇ Investors' and their Related Parties' economic or voting interest in
Holdings (or any successor thereto pursuant to subsection 10.22), or (z) own or
control more than 30% of the economic or voting interest of Holdings (or any
successor thereto pursuant to subsection 10.22); or (v) any "Change of Control"
shall occur under the Senior Notes; or
8.12 Invalidity of Guaranties; Failure of Security; Repudiation of Obligations.
-------------------------------------------------------------------------
At any time after the execution and delivery thereof, (i) any Guaranty for
any reason, other than the satisfaction in full of all Obligations (other than
inchoate indemnification obligations with respect to claims, losses or
liabilities which have not yet arisen and are not yet due and payable), shall
cease to be in full force and effect (other than in accordance with its terms)
or shall be declared to be null and void, (ii) any Collateral Document shall
cease to be in full force and effect (other than by reason of a release of
Collateral thereunder in accordance with the terms hereof or thereof, the
satisfaction in full of the Obligations (other than inchoate indemnification
obligations with respect to claims, losses or liabilities which have not yet
arisen and are not yet due and payable) or any other termination of such
Collateral Document in accordance with the terms hereof or thereof) or shall be
declared null and void, or Collateral
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Agent shall not have or shall cease to have a valid and perfected first priority
Lien (other than those Liens permitted in Section 7.2(A)(i), (viii) and (ix)) in
any Collateral purported to be covered and required to be perfected thereby
having a fair market value, individually or in the aggregate, exceeding
$4,000,000, in each case for any reason other than the failure of Administrative
Agent or any Lender to take any action within its control, or (iii) any Loan
Party shall contest the validity or enforceability of any Loan Document in
writing or deny in writing that it has any further liability, including with
respect to future advances by Lenders, under any Loan Document to which it is a
party; or
8.13 Material Adverse Effect.
-----------------------
A Material Adverse Effect shall occur.
THEN (i) upon the occurrence of any Event of Default described in subsection 8.6
or 8.7, each of (a) the unpaid principal amount of and accrued interest on the
Loans, (b) an amount equal to the maximum amount that may at any time be drawn
under all Letters of Credit then outstanding (whether or not any beneficiary
under any such Letter of Credit shall have presented, or shall be entitled at
such time to present, the drafts or other documents or certificates required to
draw under such Letter of Credit), and (c) all other Obligations shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by Holdings and Company, and the obligation of each Lender to make any
Loan, the obligation of Administrative Agent to issue any Letter of Credit and
the right of any Lender to issue any Letter of Credit hereunder shall thereupon
terminate, and (ii) upon the occurrence and during the continuation of any other
Event of Default, Administrative Agent shall, upon the written request or with
the written consent of Requisite Lenders, by written notice to Company, declare
all or any portion of the amounts described in clauses (a) through (c) above to
be, and the same shall forthwith become, immediately due and payable, and the
obligation of each Lender to make any Loan, the obligation of Administrative
Agent to issue any Letter of Credit and the right of any Lender to issue any
Letter of Credit hereunder shall thereupon terminate; provided that the
foregoing shall not affect in any way the obligations of Lenders under
subsection 3.3C(i) or the obligations of Lenders to purchase participations in
any unpaid Swing Line Loans as provided in subsection 2.1A(iv).
Any amounts described in clause (b) above, when received by Administrative
Agent, shall be held by Administrative Agent pursuant to the terms of the
Intercreditor Agreement and shall be applied as therein provided.
Notwithstanding anything contained in the second preceding paragraph, if
at any time within 60 days after an acceleration of the Loans pursuant to clause
(ii) of such paragraph Company shall pay all arrears of interest and all
payments on account of principal which shall have become due otherwise than as a
result of such acceleration (with interest on principal and, to the extent
permitted by law, on overdue interest, at the rates specified in this Agreement)
and all Events of Default and Potential Events of Default (other than non-
payment of the principal of and accrued interest on the Loans, in each case
which is due and payable solely by virtue of acceleration) shall be remedied or
waived pursuant to subsection 10.6, then Requisite Lenders, by written notice to
Company, may at their option rescind and annul such acceleration and its
136
consequences; but such action shall not affect any subsequent Event of Default
or Potential Event of Default or impair any right consequent thereon. The
provisions of this paragraph are intended merely to bind Lenders to a decision
which may be made at the election of Requisite Lenders and are not intended,
directly or indirectly, to benefit Holdings or Company, and such provisions,
shall not at any time be construed so as to grant Holdings or Company the right
to require Lenders to rescind or annul any acceleration hereunder or to preclude
Administrative Agent or Lenders from exercising any of the rights or remedies
available to them under any of the Loan Documents, even if the conditions set
forth in this paragraph are met.
No remedy herein conferred upon any Lender or the Administrative Agent is
intended to be exclusive of any other remedy and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or any other provision
of law.
SECTION 9.
AGENTS
9.1 Appointment.
-----------
A. Appointment of Agents. GSCP is hereby appointed Lead Arranger and
Syndication Agent hereunder, and each Lender hereby authorizes the Lead Arranger
and the Syndication Agent each to act as its agent in accordance with the terms
of this Agreement and the other Loan Documents. Fleet is hereby appointed
Administrative Agent hereunder and under the other Loan Documents and each
Lender hereby authorizes Administrative Agent to act as its agent in accordance
with the terms of this Agreement and the other Loan Documents. Each Lender
hereby authorizes and confirms the appointment by Administrative Agent of Fleet
as Collateral Agent under the Intercreditor Agreement and the other Loan
Documents, and each Lender hereby authorizes Collateral Agent to act as its
agent in accordance with the terms of the Intercreditor Agreement and the other
Loan Documents. Each Agent hereby agrees to act upon the express conditions
contained in this Agreement and the other Loan Documents, as applicable. The
provisions of this Section 9 are solely for the benefit of Agents and Lenders
and Company shall have no rights as a third party beneficiary of any of the
provisions thereof. In performing its functions and duties under this Agreement,
each Agent shall act solely as an agent of Lenders and does not assume and shall
not be deemed to have assumed any obligation towards or relationship of agency
or trust with or for Holdings or any of its Subsidiaries. Each of Lead Arranger
and Syndication Agent, without consent of or notice to any party hereto, may
assign any and all of its rights or obligations hereunder to any of its
Affiliates. As of the date on which Syndication Agent notifies Company that it
has concluded its primary syndication of the Loans and Commitments, all
obligations of GSCP, in its capacity as Syndication Agent hereunder, shall
terminate. GSCP, in its capacity as Lead Arranger, shall not have any
obligations hereunder.
B. Appointment of Supplemental Collateral Agents. It is the purpose of
this Agreement and the other Loan Documents that there shall be no violation of
any law of any jurisdiction denying or restricting the right of banking
corporations or associations to transact business as agent or trustee in such
jurisdiction. It is recognized that in case of litigation under this Agreement
or any of the other Loan Documents, and in particular in case of the enforcement
137
of any of the Loan Documents, or in case Collateral Agent deems that by reason
of any present or future law of any jurisdiction it may not exercise any of the
rights, powers or remedies granted herein or in any of the other Loan Documents
or take any other action which may be desirable or necessary in connection
therewith, it may be necessary that Collateral Agent appoint an additional
individual or institution as a separate trustee, co-trustee, collateral agent or
collateral co-agent (any such additional individual or institution being
referred to herein individually as a "Supplemental Collateral Agent" and
collectively as "Supplemental Collateral Agents").
In the event that Collateral Agent appoints a Supplemental Collateral
Agent with respect to any Collateral, (i) each and every right, power, privilege
or duty expressed or intended by this Agreement or any of the other Loan
Documents to be exercised by or vested in or conveyed to Collateral Agent with
respect to such Collateral shall be exercisable by and vest in such Supplemental
Collateral Agent to the extent, and only to the extent, necessary to enable such
Supplemental Collateral Agent to exercise such rights, powers and privileges
with respect to such Collateral and to perform such duties with respect to such
Collateral, and every covenant and obligation contained in the Loan Documents
and necessary to the exercise or performance thereof by such Supplemental
Collateral Agent shall run to and be enforceable by either Administrative Agent
or such Supplemental Collateral Agent, and (ii) the provisions of this Section 9
and of subsections 10.2 and 10.3 that refer to Collateral Agent shall inure to
the benefit of such Supplemental Collateral Agent and all references therein to
Administrative Agent shall be deemed to be references to Collateral Agent and/or
such Supplemental Collateral Agent, as the context may require.
Should any instrument in writing from Holdings, Company or any other Loan
Party be required by any Supplemental Collateral Agent so appointed by
Collateral Agent for more fully and certainly vesting in and confirming to him
or it such rights, powers, privileges and duties, Holdings or Company shall, or
shall cause such Loan Party to, execute, acknowledge and deliver any and all
such instruments promptly upon request by Administrative Agent. In case any
Supplemental Collateral Agent, or a successor thereto, shall die, become
incapable of acting, resign or be removed, all the rights, powers, privileges
and duties of such Supplemental Collateral Agent, to the extent permitted by
law, shall vest in and be exercised by Collateral Agent until the appointment of
a new Supplemental Collateral Agent.
9.2 Powers and Duties; General Immunity.
-----------------------------------
▇. ▇▇▇▇▇▇; Duties Specified. Each Lender irrevocably authorizes each
Agent to take such action on such Lender's behalf and to exercise such powers,
rights and remedies hereunder and under the other Loan Documents as are
specifically delegated or granted to such Agent by the terms hereof and thereof,
together with such powers, rights and remedies as are reasonably incidental
thereto. Each Agent shall have only those duties and responsibilities that are
expressly specified in this Agreement and the other Loan Documents. Each Agent
may exercise such powers, rights and remedies and perform such duties by or
through its agents or employees. No Agent shall have, by reason of this
Agreement or any of the other Loan Documents, a fiduciary relationship in
respect of any Lender; and nothing in this Agreement or any of the other Loan
Documents, expressed or implied, is intended to or shall be so construed as to
impose upon any Agent any obligations in respect of this Agreement or any of the
other Loan Documents except as expressly set forth herein or therein.
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B. No Responsibility for Certain Matters. No Agent shall be responsible
to any Lender for the execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement or any other
Loan Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statements or in any
financial or other statements, instruments, reports or certificates or any other
documents furnished or made by any of Agent to Lenders or by or on behalf of
Holdings or Company to any Agent or any Lender in connection with the Loan
Documents and the transactions contemplated thereby or for the financial
condition or business affairs of Holdings or Company or any other Person liable
for the payment of any Obligations, nor shall any Agent be required to ascertain
or inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Loan Documents or as
to the use of the proceeds of the Loans or as to the existence or possible
existence of any Event of Default or Potential Event of Default. Anything
contained in this Agreement to the contrary notwithstanding, Administrative
Agent shall not have any liability arising from confirmations of the amount of
outstanding Loans or the Letter of Credit Usage or the component amounts
thereof.
C. Exculpatory Provisions. None of Agents nor any of their respective
officers, partners, directors, employees or agents shall be liable to Lenders
for any action taken or omitted by any Agent under or in connection with any of
the Loan Documents except to the extent caused by such Agent's gross negligence
or willful misconduct. Each Agent shall be entitled to refrain from any act or
the taking of any action (including the failure to take an action) in connection
with this Agreement or any of the other Loan Documents or from the exercise of
any power, discretion or authority vested in it hereunder or thereunder unless
and until such Agent, in the case of any Agent other than the Administrative
Agent, shall have received instructions in respect thereof from Requisite
Lenders (or such other Lenders as may be required to give such instructions
under subsection 10.6) or, in the case of the Administrative Agent, in
accordance with the Intercreditor Agreement, and, upon receipt of such
instructions from Requisite Lenders (or such other Lenders, as the case may be)
or in accordance with the Intercreditor Agreement, as the case may be, such
Agent shall be entitled to act or (where so instructed) refrain from acting, or
to exercise such power, discretion or authority, in accordance with such
instructions. Without prejudice to the generality of the foregoing, (i) each
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any communication, instrument or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons, and
shall be entitled to rely and shall be protected in relying on opinions and
judgments of attorneys (who may be attorneys for Holdings and its Subsidiaries),
accountants, experts and other professional advisors selected by it; and (ii) no
Lender shall have any right of action whatsoever against any Agent as a result
of such Agent acting or (where so instructed) refraining from acting under this
Agreement or any of the other Loan Documents, in the case of any Agent other
than the Administrative Agent, in accordance with the instructions of Requisite
Lenders (or such other Lenders as may be required to give such instructions
under subsection 10.6) or, in the case of the Administrative Agent, in
accordance with the Intercreditor Agreement.
D. Agent Entitled to Act as Lender. The agency hereby created shall in no
way impair or affect any of the rights and powers of, or impose any duties or
obligations upon, any Agent in its individual capacity as a Lender hereunder.
With respect to its participation in the Loans and the Letters of Credit, each
Agent shall have the same rights and powers hereunder as
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any other Lender and may exercise the same as though it were not performing the
duties and functions delegated to it hereunder, and the term "Lender" or
"Lenders" or any similar term shall, unless the context clearly otherwise
indicates, include each Agent in its individual capacity. Any Agent and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of banking, trust, financial advisory or other business with Holdings,
Company or any of their Affiliates as if it were not performing the duties
specified herein, and may accept fees and other consideration from Holdings and
Company for services in connection with this Agreement and otherwise without
having to account for the same to Lenders.
9.3 Representations and Warranties; No Responsibility For Appraisal of
------------------------------------------------------------------
Creditworthiness.
----------------
Each Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of Holdings and its
Subsidiaries in connection with the making of the Loans and the issuance of
Letters of Credit hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Holdings and its Subsidiaries. No Agent
shall have any duty or responsibility, either initially or on a continuing
basis, to make any such investigation or any such appraisal on behalf of Lenders
or to provide any Lender 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, and no Agent shall have any responsibility with
respect to the accuracy of or the completeness of any information provided to
Lenders.
9.4 Right to Indemnity.
------------------
Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify each Agent, to the extent that such Agent shall not have been
reimbursed by Company or Holdings, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including counsel fees and disbursements) or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by or asserted against
such Agent in exercising its powers, rights and remedies or performing its
duties hereunder or under the other Loan Documents or otherwise in its capacity
as such Agent in any way relating to or arising out of this Agreement or the
other Loan Documents; provided that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements that arise from such Agent's gross
negligence or willful misconduct. If any indemnity furnished to any Agent for
any purpose shall, in the opinion of such Agent, be insufficient or become
impaired, such Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished; provided that in no event shall this sentence require any Lender to
indemnify any Agent against any liability, obligation, loss, damage, penalty,
action, judgment, suit, cost, expense or disbursement in excess of such Lender's
Pro Rata Share thereof; and provided, further, that this sentence shall not be
deemed to require any Lender to indemnify any Agent against any liability,
obligation, loss, damage, penalty, action, judgment, suit, cost, expense or
disbursement described in the proviso to the immediately preceding sentence.
9.5 Successor Administrative Agent and Swing Line Lender.
----------------------------------------------------
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A. Successor Administrative Agent. Administrative Agent may resign at any
time by giving 30 days' prior written notice thereof to Lenders and Company, and
Administrative Agent may be removed at any time with or without cause by an
instrument or concurrent instruments in writing delivered to Company and
Administrative Agent and signed by Requisite Lenders. Upon any such notice of
resignation or any such removal, Requisite Lenders shall have the right, upon
five Business Days' notice to Company, to appoint a successor Administrative
Agent with the consent of Company (which consent shall not be unreasonably
withheld). Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, that successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Administrative Agent and the
retiring or removed Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring or removed Administrative
Agent's resignation or removal hereunder as Administrative Agent, the provisions
of this Section 9 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement.
B. Successor Swing Line Lender. Any resignation or removal of
Administrative Agent pursuant to subsection 9.5A shall also constitute the
resignation or removal of Fleet or its successor as Swing Line Lender, and any
successor Administrative Agent appointed pursuant to subsection 9.5A shall, upon
its acceptance of such appointment, become the successor Swing Line Lender for
all purposes hereunder. In such event (i) Company shall prepay any outstanding
Swing Line Loans made by the retiring or removed Agent in its capacity as Swing
Line Lender, (ii) upon such prepayment, the retiring or removed Administrative
Agent and Swing Line Lender shall surrender any Swing Line Note held by it to
Company for cancellation, and (iii) if so requested by the successor
Administrative Agent and Swing Line Lender in accordance with subsection 2.1E,
Company shall issue a new Swing Line Note to the successor Administrative Agent
and Swing Line Lender substantially in the form of Exhibit VIII annexed hereto,
in the principal amount of the Swing Line Loan Commitment then in effect and
with other appropriate insertions.
C. Administrative Agent under Term Loan Credit Agreement. Any resignation
or removal of Administrative Agent pursuant to subsection 9.5A shall also
constitute the resignation or removal of Fleet for all purposes hereunder and
under the Term Loan Credit Agreement.
9.6 Collateral Documents and Guaranty.
---------------------------------
Each Lender hereby further authorizes Administrative Agent, on behalf of
and for the benefit of Lenders, to enter into the Intercreditor Agreement, and
each Lender agrees to be bound by the terms of the Intercreditor Agreement;
provided that Administrative Agent shall not enter into or consent to any
material amendment, modification, termination or waiver of the Intercreditor
Agreement without the prior consent of Requisite Lenders (or such other Lenders
as may be required to give such instructions under subsection 10.6). Each Lender
hereby further authorizes Collateral Agent (and under the terms of the
Intercreditor Agreement Collateral Agent is authorized), on behalf of and for
the benefit of Lenders, to enter into each Collateral Document as secured party
and to be the agent for and representative of the Lenders under the Guaranties,
and each Lender agrees to be bound by the terms of each Collateral Document and
each
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Guaranty; provided that Collateral Agent shall not enter into or consent to
any material amendment, modification, termination or waiver of the Intercreditor
Agreement without the prior consent of Requisite Lenders (or such other Lenders
as may be required to give such instructions under subsection 10.6); provided
further, however, that, without further written consent or authorization from
Lenders, Collateral Agent may execute any documents or instruments necessary to
(a) release any Lien encumbering any item of Collateral that is the subject of a
sale or other disposition of assets permitted by this Agreement or as permitted
or required under the Intercreditor Agreement or the Collateral Documents or to
which Requisite Lenders (or such other Lenders as may be required to give such
consent under subsection 10.6) have otherwise consented or (b) release any
Subsidiary Guarantor from the Subsidiary Guaranty if all of the capital stock of
such Subsidiary Guarantor is sold to any Person pursuant to a sale or other
disposition permitted hereunder or as permitted under the Intercreditor
Agreement or to which Requisite Lenders (or such other Lenders as may be
required to give such consent under subsection 10.6) have otherwise consented;
provided, however, that nothing in this subsection shall require consent to
release from the Subsidiary Guaranty any Person which, immediately after such
sale, shall be a Subsidiary of Holdings which is obligated to and will enter
into the Subsidiary Guaranty. Anything contained in any of the Loan Documents to
the contrary notwithstanding, Company, Administrative Agent, Collateral Agent
and each Lender hereby agree that (X) no Lender shall have any right
individually to realize upon any of the Collateral under any Collateral Document
or to enforce the Subsidiary Guaranty, it being understood and agreed that all
powers, rights and remedies under the Collateral Documents and the Guaranties
may be exercised solely by Collateral Agent for the benefit of Secured Parties
in accordance with the terms thereof, and (Y) in the event of a foreclosure by
Collateral Agent on any of the Collateral pursuant to a public or private sale,
Collateral Agent or any Secured Party may be the purchaser of any or all of such
Collateral at any such sale and Collateral Agent, as agent for and
representative of Secured Parties (but not any Secured Party or Secured Parties
in its or their respective individual capacities unless Requisite Lenders shall
otherwise agree in writing) shall be entitled, for the purpose of bidding and
making settlement or payment of the purchase price for all or any portion of the
Collateral sold at any such public sale, to use and apply any of the Obligations
as a credit on account of the purchase price for any collateral payable by
Collateral Agent at such sale.
9.7 Other Documents.
---------------
Each Lender hereby (i) consents to the terms and conditions of the
Second Priority Term Loan Credit Agreement Amendment, the ▇▇▇▇ Intercreditor
Agreement, the other Third Priority Term Loan Documents, the Reaffirmation
Agreements and the Reaffirmation of Intercreditor Agreement and (ii) authorizes
and directs the Administrative Agent, on behalf of and for the benefit of
Lenders, and the Collateral Agent to enter into the ▇▇▇▇ Intercreditor Agreement
and the Reaffirmation of Intercreditor Agreement. Each Lender agrees to be bound
by the terms of the ▇▇▇▇ Intercreditor Agreement and the Reaffirmation of
Intercreditor Agreement; provided that Administrative Agent and the Collateral
Agent shall not enter into or consent to any material amendment, modification,
termination or waiver of the ▇▇▇▇ Intercreditor Agreement or the reaffirmation
of Intercreditor Agreement without the prior consent of Requisite Lenders (or
such other Lenders as may be required to give such instructions under subsection
10.6).
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SECTION 10.
MISCELLANEOUS
10.1 Assignments and Participations in Loans and Letters of Credit.
-------------------------------------------------------------
A. General. Subject to subsection 10.1B, each Lender shall have the right
at any time to (i) sell, assign or transfer to any Eligible Assignee, or (ii)
sell participations to any Person in, all or any part of its Commitments or any
Loan or Loans made by it or its Letters of Credit or participations therein or
any other interest herein or in any other Obligations owed to it; provided that
no such sale, assignment, transfer or participation shall, without the consent
of Company, require Company to file a registration statement with the Securities
and Exchange Commission or apply to qualify such sale, assignment, transfer or
participation under the securities laws of any state; provided, further that no
such sale, assignment or transfer described in clause (i) above shall be
effective unless and until an Assignment Agreement effecting such sale,
assignment or transfer shall have been accepted by Administrative Agent and
recorded in the Register as provided in subsection 10.1B(ii); provided, further
that no such sale, assignment, transfer or participation of any Letter of Credit
or any participation therein may be made separately from a sale, assignment,
transfer or participation of a corresponding interest in the Revolving Loan
Commitment and the Revolving Loans of the Lender effecting such sale,
assignment, transfer or participation; and provided, further that, anything
contained herein to the contrary notwithstanding, the Swing Line Loan Commitment
and the Swing Line Loans of Swing Line Lender may not be sold, assigned or
transferred as described in clause (i) above to any Person other than a
successor Administrative Agent and Swing Line Lender to the extent contemplated
by subsection 9.5. Except as otherwise provided in this subsection 10.1, no
Lender shall, as between Company and such Lender, be relieved of any of its
obligations hereunder as a result of any sale, assignment or transfer of, or any
granting of participations in, all or any part of its Commitments or the Loans,
the Letters of Credit or participations therein, or the other Obligations owed
to such Lender.
B. Assignments.
(i) Amounts and Terms of Assignments. Each Commitment, Loan, Letter
of Credit or participation therein, or other Obligation may (a) be assigned
in any amount to another Lender, or to an Affiliate or Approved Fund of the
assigning Lender or another Lender, with the giving of notice to Company
and Administrative Agent, or (b) be assigned in an aggregate amount of not
less than $2,000,000 (or such lesser amount as shall constitute the
aggregate amount of the Commitments, Loans, Letters of Credit and
participations therein, and other Obligations of the assigning Lender and
its Affiliates) to any other Eligible Assignee with the consent of Company
and Administrative Agent (which consent of Company and Administrative Agent
shall not be unreasonably withheld or delayed); provided that, unless
otherwise agreed to in writing by Company and Administrative Agent or
unless such assignment is for the assigning Lender's entire interest
hereunder and under the other Loan Documents, the assigning Lender shall
have, immediately after giving effect to such assignment, not less than an
aggregate amount of $2,000,000 in Commitments, Loans and Letter of Credit;
and provided further, however, that (x) upon the occurrence and during the
continuance of an Event of Default, or (y) in the case of assignments by
GSCP or Fleet, assignments may be made without the consent
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of Company, upon the giving of notice to Company and Administrative Agent
(and compliance with the other conditions set forth in subsection 10.1). To
the extent of any such assignment in accordance with either clause (a) or
(b) above, the assigning Lender shall be relieved of its obligations with
respect to its Commitments, Loans, Letters of Credit or participations
therein, or other Obligations or the portion thereof so assigned. The
parties to each such assignment shall execute and deliver to Administrative
Agent, for its acceptance and recording in the Register, an Assignment
Agreement, together with a processing and recordation fee of $500 in the
case of assignments pursuant to clause (a) above and assignments by GSCP or
Fleet and $2000 in the case of all other assignments and such forms,
certificates or other evidence, if any, with respect to United States
federal income tax withholding matters as the assignee under such
Assignment Agreement may be required to deliver to Administrative Agent and
the Company pursuant to subsection 2.7B(iii)(a). Upon such execution,
delivery, acceptance and recordation, from and after the effective date
specified in such Assignment Agreement, (y) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment Agreement, shall have
the rights and obligations of a Lender hereunder and (z) the assigning
Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment Agreement,
relinquish its rights (other than any rights which survive the termination
of this Agreement under subsection 10.9B) and be released from its
obligations under this Agreement (and, in the case of an Assignment
Agreement covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be
a party hereto; provided that, anything contained in any of the Loan
Documents to the contrary notwithstanding, if such Lender is the Issuing
Lender with respect to any outstanding Letters of Credit such Lender shall
continue to have all rights and obligations of an Issuing Lender with
respect to such Letters of Credit until the cancellation or expiration of
such Letters of Credit and the reimbursement of any amounts drawn
thereunder). The Commitments hereunder shall be modified to reflect the
Commitment of such assignee and any remaining Commitment of such assigning
Lender and, if any such assignment occurs after the issuance of any Notes
hereunder, the assigning Lender shall, upon the effectiveness of such
assignment or as promptly thereafter as practicable, surrender its
applicable Notes, if any, to Administrative Agent for cancellation, and
thereupon new Notes shall, if so requested by the assignee and/or the
assigning Lenders in accordance with Subsection 2.1E, be issued to the
assignee and/or to the assigning Lender, substantially in the form of
Exhibit IV or Exhibit V annexed hereto, as the case may be, with
appropriate insertions, to reflect the new Commitments, as the case may be,
of the assignee and/or the assigning Lender.
(ii) Acceptance by Administrative Agent; Recordation in Register. Upon
its receipt of an Assignment Agreement executed by an assigning Lender and
an assignee representing that it is an Eligible Assignee, together with the
processing and recordation fee referred to in subsection 10.1B(i) and any
forms, certificates or other evidence with respect to United States federal
income tax withholding matters that such assignee may be required to
deliver to Administrative Agent pursuant to subsection 2.7B(iii)(a),
Administrative Agent shall, if Administrative Agent has and Company have
consented to the assignment evidenced thereby (in each case to the extent
such consent is required
144
pursuant to subsection 10.1B(i)), (a) accept such Assignment Agreement by
executing a counterpart thereof as provided therein (which acceptance shall
evidence any required consent of Administrative Agent to such assignment),
(b) record the information contained therein in the Register, and (c) give
prompt notice thereof to Company. Administrative Agent shall maintain a
copy of each Assignment Agreement delivered to and accepted by it as
provided in this subsection 10.1B(ii).
C. Participations. The holder of any participation, other than an
Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
directly affecting (i) the extension of the scheduled final maturity date of any
Loan allocated to such participation (ii) a reduction of the principal amount of
or the rate of interest or fees payable on any Loan allocated to such
participation, and all amounts payable by Company hereunder (including amounts
payable to such Lender pursuant to subsections 2.6D, 2.7 and 3.6) or (iii) a
release of all or substantially all of the Collateral. Company and each Lender
hereby acknowledge and agree that, solely for purposes of subsections 10.4 and
10.5, (a) any participation will give rise to a direct obligation of Company to
the participant and (b) the participant shall be considered to be a "Lender".
D. Assignments to Federal Reserve Banks and Fund Trustees. In addition to
the assignments and participations permitted under the foregoing provisions of
this subsection 10.1, any Lender may assign and pledge all or any portion of its
Loans, the other Obligations owed to such Lender, and its Notes to any Federal
Reserve Bank as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any operating circular issued by
such Federal Reserve Bank, and with the consent of Company and Administrative
Agent any Lender which is an investment fund may pledge all or any portion of
its Notes or Loans to its trustee in support of its obligations to such trustee;
provided that (i) no Lender shall, as between Company and such Lender, be
relieved of any of its obligations hereunder as a result of any such assignment
and pledge and (ii) in no event shall such Federal Reserve Bank or trustee be
considered to be a "Lender" or be entitled to require the assigning Lender to
take or omit to take any action hereunder.
E. Information. Each Lender may furnish any information concerning
Company and its Subsidiaries in the possession of that Lender from time to time
to assignees and participants (including prospective assignees and
participants), subject to subsection 10.19.
F. Representations of Lenders. Each Lender listed on the signature pages
hereof hereby represents and warrants (i) that it is an Eligible Assignee
described in clause (a) of the definition thereof; (ii) that it has experience
and expertise in the making of or investing in loans such as the Loans; and
(iii) that it will make its Loans for its own account in the ordinary course of
its business and without a view to distribution of such Loans within the meaning
of the Securities Act or the Exchange Act or other federal securities laws (it
being understood that, subject to the provisions of this subsection 10.1, the
disposition of such Loans or any interests therein shall at all times remain
within its exclusive control). Each Lender that becomes a party hereto pursuant
to an Assignment Agreement shall be deemed to agree that the representations and
warranties of such Lender contained in Section 2(c) of such Assignment Agreement
are incorporated herein by this reference.
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10.2 Expenses.
--------
Whether or not the transactions contemplated hereby are consummated,
Company agrees to pay promptly (i) all reasonable legal fees, the reasonable
fees of ▇▇▇▇▇▇▇▇ and other consultants, and other reasonable out of pocket
expenses incurred by the Administrative Agent and the Syndication Agent in
connection with the negotiation, documentation, implementation, administration
and enforcement of this Agreement, (ii) all the actual and reasonable costs and
expenses of preparation of the Loan Documents and any consents, amendments
(requested by or for the benefit of Company), waivers or other modifications
thereto; (iii) all the costs of furnishing all opinions by counsel for Company
(including any opinions requested by Lenders as to any legal matters arising
hereunder) and of Company's performance of and compliance with all agreements
and conditions on its part to be performed or complied with under this Agreement
and the other Loan Documents including with respect to confirming compliance
with environmental, insurance and solvency requirements; (iv) the reasonable
fees, expenses and disbursements of counsel to Administrative Agent and
Syndication Agent (in each case including allocated costs of internal counsel)
in connection with the negotiation, preparation and execution of this Agreement
and the other Loan Documents and of the Administrative Agent in connection with
any consents, amendments (requested by or for the benefit of Company), waivers
or other modifications thereto and any other documents or matters requested by
Company; (v) all the reasonable costs and reasonable expenses of creating and
perfecting Liens in favor of Collateral Agent on behalf of Lenders pursuant to
any Collateral Document, including filing and recording fees, expenses and
taxes, stamp or documentary taxes, search fees, title insurance premiums, and
reasonable fees, expenses and disbursements of counsel to Agents and to
Administrative Agent and of counsel providing any opinions that Agents,
Administrative Agent or Requisite Lenders may request in respect of the
Collateral Documents or the Liens created pursuant thereto; (vi) all the
reasonable costs and reasonable expenses (including the reasonable fees,
expenses and disbursements of any auditors, accountants or appraisers and any
environmental or other consultants, advisors and agents employed or retained by
Administrative Agent and its counsel) of obtaining and reviewing any appraisals
provided for under subsection 6.9C, any environmental audits or reports provided
for under subsection 4.2 or 6.9B(ix) and any audits, field examinations,
appraisals, valuations or reports provided for under subsection 6.5; (vii) all
the reasonable costs and reasonable expenses (including the reasonable fees,
expenses and disbursements of any consultants, advisors and agents employed or
retained by Administrative Agent and its counsel) in connection with the
administration of the Loan Documents, and the custody or preservation of any of
the Collateral as may separately be agreed to between the Administrative Agent,
Collateral Agent and Company; (viii) all other reasonable costs and expenses
incurred by any of the Agents in connection with the syndication of the
Commitments and the negotiation, preparation and execution of the Loan Documents
and any consents, amendments (requested by or for the benefit of Company),
waivers or other modifications thereto and the transactions contemplated
thereby; and (ix) after the occurrence of an Event of Default, all costs and
expenses, including reasonable attorneys' fees (including allocated costs of
internal counsel) and costs of settlement, incurred by any of the Agents and
Lenders in enforcing any Obligations of or in collecting any payments due from
any Loan Party hereunder or under the other Loan Documents by reason of such
Event of Default (including in connection with the sale of, collection from, or
other realization upon any of the Collateral or the enforcement of the
Guaranties) or in connection with any refinancing or restructuring of the credit
arrangements
146
provided under this Agreement in the nature of a "work-out" or pursuant to any
insolvency or bankruptcy proceedings.
10.3 Indemnity.
---------
In addition to the payment of expenses pursuant to subsection 10.2, whether
or not the transactions contemplated hereby are consummated, Company agrees to
defend (subject to Indemnitees' selection of counsel), indemnify, pay and hold
harmless Agents and Lenders, and the officers, partners, directors, trustees,
employees, agents and affiliates of any of Agents and Lenders (collectively
called the "Indemnitees"), from and against any and all Indemnified Liabilities
(as hereinafter defined); provided that Company shall not have any obligation to
any Indemnitee hereunder with respect to any Indemnified Liabilities to the
extent such Indemnified Liabilities arise from the gross negligence, bad faith
or willful misconduct of that Indemnitee as determined by a final, non-
appealable judgment of a court of competent jurisdiction.
As used herein, "Indemnified Liabilities" means, collectively, any and all
liabilities, obligations, losses, damages (including natural resource damages),
penalties, actions, judgments, suits, claims (including Environmental Claims),
costs (including the costs of any investigation, study, sampling, testing,
abatement, cleanup, removal, remediation or other response action necessary to
remove, remediate, clean up or ▇▇▇▇▇ any Hazardous Materials Activity), expenses
and disbursements of any kind or nature whatsoever (including the reasonable
fees and disbursements of counsel for Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnitee shall be designated as a party or
a potential party thereto, and any fees or expenses incurred by Indemnitees in
enforcing this indemnity), whether direct, indirect or consequential and whether
based on any federal, state or foreign laws, statutes, rules or regulations
(including securities and commercial laws, statutes, rules or regulations and
Environmental Laws), on common law or equitable cause or on contract or
otherwise, that may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of (i) this Agreement or
the other Loan Documents or the Related Agreements transactions contemplated
hereby or thereby (including Lenders' agreement to make the Loans hereunder or
the use or intended use of the proceeds thereof or the issuance of Letters of
Credit hereunder or the use or intended use of any thereof, or any enforcement
of any of the Loan Documents (including any sale of, collection from, or other
realization upon any of the Collateral or the enforcement of the Guaranties)),
(ii) the statements contained in the commitment letter executed by such Lender
and the Company with respect thereto, or (iii) any Environmental Claim or any
Hazardous Materials Activity relating to or arising from, directly or
indirectly, any past or present activity, operation, land ownership, or practice
of Holdings or any of its Subsidiaries. Notwithstanding the foregoing, no Lender
other than an Existing Lender shall have any entitlement for indemnification
pursuant to this Section 10.3 with respect to any claim based upon a breach of a
representation or warranty under any of subsections 5.2E.(i) through (iii) or
5.17B. of this Agreement.
To the extent that the undertakings to defend, indemnify, pay and hold
harmless set forth in this subsection 10.3 may be unenforceable in whole or in
part because they are violative of any law or public policy, Company shall
contribute the maximum portion that it is permitted to
147
pay and satisfy under applicable law to the payment and satisfaction of all
Indemnified Liabilities incurred by Indemnitees or any of them.
10.4 Set-Off; Security Interest in Deposit Accounts.
----------------------------------------------
In addition to any rights now or hereafter granted under applicable law and
not by way of limitation of any such rights, upon the occurrence and during the
continuance of any Event of Default each Lender is hereby authorized by Company
at any time or from time to time subject to the consent of Administrative Agent,
without notice to Company or to any other Person (other than Administrative
Agent), any such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or special, including
Indebtedness evidenced by certificates of deposit, whether matured or unmatured,
but not including trust accounts or payroll accounts) and any other Indebtedness
at any time held or owing by that Lender to or for the credit or the account of
Company against and on account of the obligations and liabilities of Company
which are then due and payable to that Lender under this Agreement, the Letters
of Credit and participations therein and the other Loan Documents, including all
claims of any nature or description arising out of or connected with this
Agreement, the Letters of Credit and participations therein or any other Loan
Document, irrespective of whether or not that Lender shall have made any demand
hereunder which are then due and payable. Company hereby further grants to
Administrative Agent, Collateral Agent and each Lender a security interest in
all deposits and accounts maintained with Administrative Agent or such Lender as
security for the Obligations.
Company, the Lenders, the Administrative Agent and Collateral Agent hereby
acknowledge and agree that the provisions of this subsection 10.4 are subject to
the provisions of the Intercreditor Agreement. To the extent that any Lender is
required pursuant to the provisions of the Intercreditor Agreement to turn over
to the Administrative Agent any payments otherwise subject to the provisions of
this subsection 10.4, such payments shall not be subject to the provisions of
this subsection 10.4.
10.5 Ratable Sharing.
---------------
Lenders hereby agree among themselves that if any of them shall, whether by
voluntary payment (other than a voluntary prepayment of Loans made and applied
in accordance with the terms of this Agreement), by realization upon security,
through the exercise of any right of set-off or banker's lien, by counterclaim
or cross action or by the enforcement of any right under the Loan Documents or
otherwise, or as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction of a proportion of the
aggregate amount of principal, interest, amounts payable in respect of Letters
of Credit, fees and other amounts then due and owing to that Lender hereunder or
under the other Loan Documents (collectively, the "Aggregate Amounts Due" to
such Lender) which is greater than the proportion received by any other Lender
in respect of the Aggregate Amounts Due to such other Lender, then the Lender
receiving such proportionately greater payment shall (i) notify Administrative
Agent and each other Lender of the receipt of such payment and (ii) apply a
portion of such payment to purchase participations (which it shall be deemed to
have purchased from each seller of a participation simultaneously upon the
receipt by such seller of its portion of such payment) in the Aggregate Amounts
Due to the other Lenders so that all such recoveries of
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Aggregate Amounts Due shall be shared by all Lenders in proportion to the
Aggregate Amounts Due to them; provided that, if all or part of such
proportionately greater payment received by such purchasing Lender is thereafter
recovered from such Lender upon the bankruptcy or reorganization of Company or
otherwise, those purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to such purchasing Lender ratably to the
extent of such recovery, but without interest Company expressly consents to the
foregoing arrangement and agrees that any holder of a participation so purchased
may exercise any and all rights of banker's lien, set-off or counterclaim with
respect to any and all monies owing by Company to that holder with respect
thereto as fully as if that holder were owed the amount of the participation
held by that holder.
Company, the Lenders and Administrative Agent hereby acknowledge and
agree that the provisions of this subsection 10.5 are subject to the provisions
of the Intercreditor Agreement. To the extent that any Lender is required
pursuant to the provisions of the Intercreditor Agreement to turn over to the
Administrative Agent any payments otherwise subject to the provisions of this
subsection 10.5, such payments shall not be subject to the provisions of this
subsection 10.5.
10.6 Amendments and Waivers.
----------------------
A. No amendment, modification, termination or waiver of any provision of
the Loan Documents, or consent to any departure by Company therefrom, shall in
any event be effective without the written concurrence of Requisite Lenders;
provided that no such amendment, modification, termination, waiver or consent
shall, without the consent of each Lender (with Obligations directly affected in
the case of the following clause (i)): (i) extend the scheduled final maturity
of any Loan or Note, or waive or reduce or postpone any scheduled repayment (but
not prepayment) of any Loan or Note or extend the stated expiration date of any
Letter of Credit beyond the Revolving Loan Commitment Termination Date, or
reduce the rate of interest on any Loan (other than any waiver of any increase
in the interest rate applicable to any Loan pursuant to subsection 2.2E; it
being understood that modification of the financial definitions herein shall not
constitute a reduction of the rate of interest for the purposes of this
subsection 10.6) or any commitment fees or letter of credit fees payable
hereunder, or extend the time for payment of any such interest or fees, or
reduce the principal amount of any Loan or any reimbursement obligation in
respect of any Letter of Credit, (ii) amend, modify, terminate or waive any
provision of this subsection 10.6, (iii) reduce the percentage specified in the
definition of "Requisite Lenders" or "Pro Rata Shares" (it being understood
that, with the consent of Requisite Lenders, (except that such consent shall not
be required in the case of increased amounts under Subsection 2.1.A.(v) of this
Agreement) additional extensions of credit pursuant to this Agreement may be
included in the determination of "Requisite Lenders" or "Pro Rata Shares" on
substantially the same basis as the Term Loan Commitments, the Term Loans, the
Revolving Loan Commitments and the Revolving Loans are included on the Effective
Date), (iv) release or otherwise subordinate all or all or substantially all of
the Collateral or Holdings or General Partner from the Holdings Guaranty or all
or substantially all of the Subsidiary Guarantors from the Subsidiary Guaranty
except as expressly provided in the Loan Documents, or (v) consent to the
assignment or transfer by Company of any of its rights and obligations under
this Agreement; provided, further that no such amendment, modification,
termination or waiver shall (1) increase the Commitments of any Lender over the
amount thereof then in effect, or extend the duration thereof, without the
consent of such Lender (it being understood that no
149
amendment, modification or waiver of any condition precedent, covenant,
Potential Event of Default or Event of Default shall constitute an increase or
extension in the Commitment of any Lender, and that no increase in the available
portion of any Commitment of any Lender shall constitute an increase in such
Commitment of such Lender); (2) amend, modify, terminate or waive any provision
of subsection 2.1A(iv) or any other provision of this Agreement relating to the
Swing Line Loan Commitment or the Swing Line Loans without the consent of Swing
Line Lender; (3) amend, modify, terminate or waive any obligation of Lenders
relating to the purchase of participations in Letters of Credit as provided in
subsection 3.1C without the written concurrence of Administrative Agent and of
each Issuing Lender which has a Letter of Credit then outstanding or which has
not been reimbursed for a drawing under a Letter of Credit issued it; (4) amend,
modify, terminate or waive any provision of Section 9 or 10 as the same applies
to any Agent (including the Administrative Agent), or any other provision of
this Agreement as the same applies to the rights or obligations of any Agent
(including the Administrative Agent), in each case without the consent of such
Agent (including the Administrative Agent); (5) reduce the percentage specified
in the definition of "Requisite Class Lenders" without the consent of Requisite
Class Lenders of each Class; provided, with the consent of the applicable
Requisite Lenders, additional extensions of credit pursuant hereto may be
included in the determination of Requisite Class Lenders on substantially the
same basis as the Term Loans, the Term Loan Commitments, the Revolving Loans
Commitments and the Revolving Loans are included on the Effective Date or (6)
alter the required application of repayment or prepayment as between Classes
pursuant to Section 2.4B(iv)(b) without the consent of Requisite Class Lenders
of each Class being allocated a less repayment or prepayment as a result
thereof; provided, Requisite Lenders may waive, in whole or in part, any
prepayment so long as the application, as between Classes, of any portion of
such prepayment which is still required to be made is not altered.
B. Administrative Agent may, but shall have no obligation to, with the
concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of that Lender. Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was given. No
notice to or demand on Company in any case shall entitle Company to any other or
further notice or demand in similar or other circumstances. Any amendment,
modification, termination, waiver or consent effected in accordance with this
subsection 10.6 shall be binding upon each Lender at the time outstanding, each
future Lender and, if signed by Company, on Company.
10.7 Independence of Covenants.
-------------------------
All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or would otherwise be within
the limitations of, another covenant shall not avoid the occurrence of an Event
of Default or Potential Event of Default if such action is taken or condition
exists.
10.8 Notices.
-------
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States mail
or courier service and shall be deemed to have been
150
given when delivered in person or by courier service, upon receipt of
telefacsimile or telex, or three Business Days after depositing it in the United
States mail with postage prepaid and properly addressed; provided that notices
to Administrative Agent shall not be effective until received. For the purposes
hereof, the address of each party hereto shall be as set forth under such
party's name on the signature pages hereof or (i) as to Holdings, Company and
Administrative Agent, such other address as shall be designated by such Person
in a written notice delivered to the other parties hereto and (ii) as to each
other party, such other address as shall be designated by such party in a
written notice delivered to Administrative Agent.
10.9 Survival of Representations, Warranties and Agreements.
------------------------------------------------------
A. All representations, warranties and agreements made herein shall
survive the execution and delivery of this Agreement and the making of the Loans
and the issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of Company and Holdings set forth in subsections 2.6D,
2.7, 3.5A, 3.6, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth in
subsections 9.2C, 9.4 and 10.5 shall survive the payment of the Loans, the
cancellation or expiration of the Letters of Credit and the reimbursement of any
amounts drawn thereunder, and the termination of this Agreement.
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative.
-----------------------------------------------------
No failure or delay on the part of Administrative Agent or Collateral
Agent or any Lender in the exercise of any power, right or privilege hereunder
or under any other Loan Document shall impair such power, right or privilege or
be construed to be a waiver of any default or acquiescence therein, nor shall
any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other power, right or privilege. All
rights and remedies existing under this Agreement and the other Loan Documents
are cumulative to, and not exclusive of, any rights or remedies otherwise
available.
10.11 Marshalling; Payments Set Aside.
-------------------------------
None of Administrative Agent, Collateral Agent or any Lender shall be
under any obligation to marshal any assets in favor of Company or any other
party or against or in payment of any or all of the Obligations. To the extent
that Company makes a payment or payments to Administrative Agent, Collateral
Agent, or Lenders (or to Administrative Agent or Collateral Agent for the
benefit of Lenders), or Administrative Agent, Collateral Agent or Lenders
enforce any security interests or exercise their rights of setoff, and such
payment or payments or the proceeds of such enforcement or setoff or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, any other state or federal law, common law or any
equitable cause, then, to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor or related thereto, shall be revived and continued in full force and
effect as if such payment or payments had not been made or such enforcement or
setoff had not occurred.
10.12 Severability.
------------
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In case any provision in or obligation under this Agreement or the
Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
10.13 Obligations Several; Independent Nature of Lenders' Rights.
----------------------------------------------------------
The obligations of Lenders hereunder are several and no Lender shall be
responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and it shall not be necessary for any other
Lender to be joined as an additional party in any proceeding for such purpose.
10.14 Headings.
--------
Section and subsection headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
10.15 Applicable Law.
--------------
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES.
10.16 Successors and Assigns.
----------------------
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders (it being understood that
Lenders' rights of assignment are subject to subsection 10.1). Neither Holdings'
nor Company's rights or obligations hereunder nor any interest therein may be
assigned or delegated by Holdings or Company without the prior written consent
of all Lenders.
10.17 Consent to Jurisdiction and Service of Process.
----------------------------------------------
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY OR HOLDINGS ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
OBLIGATIONS THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇. BY EXECUTING
AND DELIVERING THIS AGREEMENT, COMPANY AND HOLDINGS, FOR THEMSELVES AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
152
(I) ACCEPT GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVE ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREE THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN
ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO HOLDINGS AND COMPANY AT THEIR ADDRESSES PROVIDED
IN ACCORDANCE WITH SUBSECTION 10.8;
(IV) AGREE THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER COMPANY IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
(V) AGREE THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY
IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREE THAT THE PROVISIONS OF THIS SUBSECTION 10.17 RELATING
TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE
FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW
SECTION 5-1402 OR OTHERWISE.
10.18 Waiver of Jury Trial.
--------------------
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/COMPANY RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver
is intended to be all-encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of this transaction, including
contract claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this waiver is a material
inducement to enter into a business relationship, that each has already relied
on this waiver in entering into this Agreement, and that each will continue to
rely on this waiver in their related future dealings. Each party hereto further
warrants and represents that it has reviewed this waiver with its legal counsel
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 10.18 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL
153
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the event of litigation,
this Agreement may be filed as a written consent to a trial by the court.
10.19 Confidentiality.
---------------
Each Lender shall hold all non-public information obtained pursuant to
the requirements of this Agreement in accordance with such Lender's customary
procedures for handling confidential information of this nature and in
accordance with prudent lending or investing practices, it being understood and
agreed by Company and Holdings that in any event a Lender may make disclosures
to Affiliates of such Lender or disclosures reasonably required by any bona fide
assignee, transferee or participant in connection with the contemplated
assignment or transfer by such Lender of any Loans or any participations therein
or by any direct or indirect contractual counterparties (or the professional
advisors thereto) in swap agreements (provided that such counterparties and
advisors are advised of and agree to be bound by the provisions of this
subsection 10.19) or disclosures required or requested by any governmental
agency or representative thereof or by the NAIC or pursuant to legal process;
provided that, unless specifically prohibited by applicable law or court order,
each Lender shall notify Company of any request by any governmental agency or
representative thereof (other than any such request in connection with any
examination of the financial condition of such Lender by such governmental
agency) for disclosure of any such non-public information prior to disclosure of
such information; and provided, further that in no event shall any Lender be
obligated or required to return any materials furnished by Holdings or any of
its Subsidiaries.
10.20 Counterparts; Effectiveness.
---------------------------
This Agreement and any amendments, waivers, consents or supplements
hereto or in connection herewith may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Agreement shall become effective upon the execution of a
counterpart hereof by Requisite Lenders (under and as defined in the Existing
Credit Agreement), Agents, each New Lender, Company and Holdings and receipt by
Company and Administrative Agent of written or telephonic notification of such
execution and authorization of delivery thereof.
It is the intention of each of the parties hereto that the Existing
Credit Agreement be amended and restated so as to preserve the perfection and
priority of all security interests securing indebtedness and obligations under
the Existing Credit Agreement and the other Loan Documents and that all
indebtedness and obligations of Company and its Subsidiaries hereunder and
thereunder shall be secured by the Collateral Documents and that this Agreement
shall not constitute a novation of the obligations and liabilities existing
under the Existing Credit Agreement or be deemed to evidence or constitute
repayment of all or any portion of any such obligations or liabilities. The
parties hereto further acknowledge and agree that this Agreement
154
constitutes an amendment of the Existing Credit Agreement made under and in
accordance with the terms of subsection 10.6 thereof.
10.21 Limitation on Liability of General Partner.
------------------------------------------
Except as set forth in the Holdings Guaranty, the Obligations shall be
nonrecourse to General Partner, except to the extent of its partnership
interests in Company and Holdings. Any liability of General Partner in respect
of the Obligations shall be specifically limited to the interests of General
Partner and in its partnership interests in Company and Holdings, and no other
assets of General Partner shall be subject to any claims as a result hereof.
Except as set forth herein or in the Loan Documents, each Lender acknowledges
and agrees that no director, officer, employee, incorporator, stockholder or
limited partner of the Company, as such, shall have any liability for any
obligations of Company or for any claim based on, in respect of, or by reason
of, such obligations or their creation.
10.22 "C" Corporation Conversion.
--------------------------
Upon not less than thirty (30) days prior written notice from Company
to Lenders, provided no Potential Event of Default or Event of Default shall
have then occurred and be continuing, Administrative Agent, Requisite Lenders
and the other Loan Parties shall take all actions, including, without
limitation, the execution and delivery of necessary amendments, modifications
and supplements to this Agreement and the other Loan Documents, as may
reasonably be necessary in order to facilitate the conversion of Holdings or
Company from a limited liability partnership structure to a corporate structure
classified as a "C" corporation under the Internal Revenue Code and to give
effect to the intent of this Agreement and the other Loan Documents after
consummation of any such conversion. Administrative Agent shall be entitled to
reimbursement by Company of its reasonable fees and expenses incurred in
connection therewith and at all times on and after any such conversion the first
priority Lien in the Collateral shall remain in full force and effect to the
same extent as prior to such conversion.
10.23 Effect on Existing Credit Agreement.
-----------------------------------
The Company, Holdings, the Lenders, and the Agents agree that as of the
Effective Date (a) the terms and provisions of the Existing Credit Agreement
shall be and hereby are amended, superseded and restated in their entirety by
the terms and provisions of this Agreement; provided, however, that all
representations and warranties made by Holdings and Company under the Existing
Credit Agreement as of the dates on which such representations and warranties
were made by Holdings or Company, shall survive such amendment, supersession and
restatement and the execution and delivery of this Agreement, (b) the Lenders
and the Agents shall not have any obligations under the Existing Credit
Agreement, except to the extent that any such obligations may be restated in
this Agreement or in the other Loan Documents, and (c) the execution and
delivery of this Agreement shall not constitute or effect, or be deemed to
constitute or effect, a novation, refinancing, discharge, extinguishment or
refunding of any of the "Obligations" (as defined in the Existing Credit
Agreement) or that portion of the Obligations which remain outstanding under
this Agreement.
155
Without limiting the foregoing, upon the Effective Date, (i) no Event
of Default under the Existing Credit Agreement shall be deemed to arise solely
as a result of the closing of the transactions contemplated by this Agreement,
and (ii) the Existing Defaults and Incipient Defaults shall no longer be deemed
to exist; provided, that, nothing contained in this Agreement shall, or shall be
deemed to, alter, affect, prejudice, waive, relinquish or impair any right or
remedy that the Administrative Agent or the Lenders may have under this
Agreement on or after the Effective Date, including, without limitation, the
right to declare an Event of Default under Section 8 hereof, or any other
provision of this Agreement, that is based, in whole or in part, on any fact,
circumstance, act, omission, transaction, occurrence or other event which
occurred prior to the Effective Date (other than those which constitute Existing
Defaults and Incipient Defaults).
10.24 Reaffirmation of Validity and Enforceability of Documents and
-------------------------------------------------------------
Obligations.
-----------
Holdings and Company reaffirm, acknowledge and agree that (i) each of
the Loan Documents to which it or any of its Subsidiaries is a party, including,
without limitation, this Agreement, is valid and enforceable by the Lenders and
the Agents against Holdings, Company and such Subsidiaries, (ii) each Loan
Document to which it or any of its Subsidiaries is a party and this Credit
Agreement is in full force and effect as of the Effective Date, (iii) Holdings,
Company and its Subsidiaries shall not challenge or dispute the validity of any
of the Obligations under the Existing Credit Agreement, the Loan Documents or
this Agreement, (iv)as of the Effective Date, Company is justly and lawfully
liable to the Lenders in an aggregate principal amount of the Loans of
$[525,625,000] (as set forth on Schedule 2.1), plus accrued and unpaid interest
thereon, plus fees, costs and expenses incurred in connection with the
Obligations as provided herein and in the other Loan Documents, and (v) by
reason of the Loan Documents, the Obligations are secured by first-priority,
perfected, valid and enforceable Liens in the Collateral, subject only to
Permitted Encumbrances and Liens permitted by Sections 7.2(A)(viii) and (ix), in
each case, without any offset, counterclaim or defense of any kind.
10.25 Arm's Length Agreement.
----------------------
Each of the parties to this Agreement agrees and acknowledges that this
Agreement has been negotiated in good faith, at arm's length, and not by any
means prohibited by law.
10.26 No Third-Party Beneficiaries.
----------------------------
This Agreement shall be binding upon and shall inure solely to the
benefit of the parties hereto and their respective successors and assigns, and
is not intended to confer upon any other third party any rights or benefits.
10.27 Release.
-------
In further consideration of the execution by the Agents and the
Requisite Lenders of this Agreement, Holdings and Company, on behalf of itself
and each of the other Loan Parties and each of its Subsidiaries, parents,
predecessors, directors, officers, employees, and all of the successors and
assigns of each of the foregoing (collectively, the "Releasors"), hereby
completely, voluntarily, knowingly, and unconditionally releases, acquits, and
forever discharges
156
(a) each of the Agents, (b) each of the Lenders, (iii) each of the Subsidiaries,
parents, holding companies, Affiliates, stockholders, directors, officers,
employees, agents, accountants, attorneys, and other representatives of each of
the foregoing, and (d) all of the successors and assigns of each of the
foregoing (collectively, the "Releasees"), from any and all claims, actions,
causes of action, demands, suits, debts, covenants, controversies, remedies,
liabilities, damages, sums of money, accounts, reckonings, bonds, bills,
specialties, variances, trespasses, judgments, extents, executions, rights,
obligations, losses, undertakings, costs, expenses, attorneys' fees, setoffs,
counterclaims, cross-claims, third-party claims, claims-over, reimbursement
claims, indemnity claims, contribution claims, and demands of any and every type
whatsoever, including, without limitation, any so-called "lender liability"
claims or defenses (collectively, "Claims"), whether arising out of federal,
state, provincial or local laws or regulations, statutes, rules or common law,
whether in law or in equity, whether known or unknown, matured or unmatured,
fixed or contingent, asserted or unasserted, disclosed or undisclosed,
liquidated or unliquidated, disputed or undisputed, suspected or unsuspected,
foreseen or unforeseen, direct or indirect, ▇▇▇▇▇▇ or inchoate, whether
individual, class, derivative, representative, or in any other capacity, which
any of the Releasors ever had, now has or hereinafter can, shall or may have
against any of the Releasees for, upon or by reason of any matter, cause or
thing whatsoever prior to the Effective Date, in any way concerning, relating
to, or arising from (i) any of the Releasors, (ii) the Obligations or the
Existing Obligations, (iii) the Collateral, (iv) the Existing Credit Agreement
or any of the other Loan Documents, (v) the financial condition, business
operations, business plans, prospects or creditworthiness of Holdings, Company
and its Subsidiaries, and (vi) the negotiation, documentation and execution of
this Agreement and any documents relating thereto, provided, however, that
nothing in this section 10.27 shall limit or prejudice the right of Company to
challenge the reasonableness of any fees and expenses incurred prior to the
Effective Date that are submitted to the Company for reimbursement. Each of the
Releasors knowingly grants such release notwithstanding that such Releasor may
hereafter discover facts in addition to, or different from, those which that
party now knows or believes to be true, and without regard to the subsequent
discovery or existence of such different or additional facts, and expressly
waives any and all rights that any such Releasor may have under any statute,
procedural rule, common law principle or equity which would limit the effect of
the foregoing release to those Claims actually known or suspected to exist at
the time of the Effective Date. The Releasors hereby acknowledge that they have
been advised by legal counsel of the meaning and consequences of this release.
10.28 Advice of Counsel.
-----------------
EACH OF THE PARTIES TO THIS AGREEMENT SPECIFICALLY WARRANTS AND
REPRESENTS THAT IN NEGOTIATING AND ENTERING INTO THIS AGREEMENT, IT HAS BEEN
FULLY ADVISED AND REPRESENTED BY LEGAL COUNSEL OF ITS OWN SELECTION AND HAS
RELIED WHOLLY UPON ITS INDEPENDENT JUDGMENT AND THE ADVICE OF COUNSEL OF ITS OWN
INDEPENDENT SELECTION.
[Remainder of Page Intentionally Left Blank]
157
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY:
▇▇▇▇▇▇▇ ▇▇▇▇▇ RENTAL, L.P.
By: ACR Management LLC
as its general partner
By:____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Ex. Vice President & General Counsel
HOLDINGS:
▇▇▇▇▇▇▇ ▇▇▇▇▇ RENTAL HOLDINGS, L.P.
By: ACR Management LLC
as its general partner
By:________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Ex. Vice President & General Counsel
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President, Finance
and General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ Capital, LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
158
and:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
159
AGENTS AND LENDERS:
FLEET NATIONAL BANK,
individually and as Administrative Agent and
Collateral Agent
By:___________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Notice Address:
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
160
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.,
individually and as Lead Arranger and
Syndication Agent
By:__________________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
Notice Address:
c/o Goldman, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
161
APEX (IDM) CDO 1, LTD.,
By: First Union Institutional Debt Management as
Collateral Manager
By:__________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
Notice Address:
Three Wachova Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ NATIONAL TRUST
& SAVINGS ASSOCIATION
By:__________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
163
BOEING CAPITAL CORPORATION
By:__________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President and General Manager
Notice Address:
Boeing Capital Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone:(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:(▇▇▇) ▇▇▇-▇▇▇▇
164
▇▇▇▇ ▇▇▇▇▇ STRATEGIC INVESTMENTS, L.P.
By: ▇▇▇▇ ▇▇▇▇▇ Management Company, L.P.,
as General Partner
By:__________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
Notice Address:
▇▇▇▇ ▇▇▇▇▇ Management Company, LP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Telephone:▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇ Management Company, LP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
165
THE CIT GROUP/BUSINESS CREDIT,
INC.
By:__________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Notice Address:
The CIT Group/Business Credit, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
166
CITIZENS BUSINESS CREDIT COMPANY
A Division of Citizens Leasing Incorporated
By:__________________________________
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Notice Address:
Citizens Business Credit
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ / ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
MBS 970
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
167
CITY NATIONAL BANK
By:__________________________________
Name:
Title:
Notice Address:
Special Assets Department
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: G. ▇▇▇ ▇▇▇▇▇▇ ▇▇., Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
168
COAST BUSINESS CREDIT A DIVISION
OF SOUTHERN PACIFIC BANK
By:__________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Title: Vice President
Notice Address:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
169
CREDIT SUISSE FIRST BOSTON
By:__________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By:__________________________________
Name: ▇▇▇▇ ▇'▇▇▇▇
Title: Director
Notice Address:
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
170
DIME COMMERCIAL CORP.
By:
______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Notice Address:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
171
ELC (CAYMAN) LTD.
By: First Union Institutional Debt Management
as Collateral Manager
By:___________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
Notice Address:
Three Wachova Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
172
ELC (CAYMAN) LTD. 1999-II
By: First Union Institutional Debt Management
as Collateral Manager
By:_________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
Notice Address:
Three Wachova Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
173
ELC (CAYMAN) LTD. CDU SERIES 1999-I
By: First Union Institutional Debt Management
as Collateral Manager
By:________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
Notice Address:
Three Wachova Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
174
ERSTE BANK DER
OESTERREICHISCHEN SPARKASSEN AG
By:_____________________________________
Name: ▇▇▇▇ ▇▇▇
Title: Vice President
By:_____________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
Notice Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
175
FINOVA CAPITAL, CORPORATION
By:____________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇
Title: Assistant Vice President
Notice Address:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
176
FIRST DOMINION FUNDING III
as a Lender
By:_______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
Notice Address:
Credit Suisse Asset Management
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
177
GENERAL ELECTRIC CAPITAL CORPORATION
By:_____________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Duly Authorized Signatory
Notice Address:
GE Capital
Commercial Finance
▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
GE Capital
Commercial Finance
▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
178
GMAC COMMERCIAL CREDIT, LLC,
successor-in-interest by merger to BNY
FINANCIAL CORPORATION
By:______________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Notice Address:
1290 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
179
IBJ WHITEHALL BUSINESS CREDIT
CORPORATION
By:_______________________________________
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
Notice Address:
IBJ Whitehall Business Credit Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
180
ING PRIME RATE TRUST
By: ING Investments, LLC
as its investment manager
By:___________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President / Portfolio Manager
Notice Address:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
181
KEY CORPORATE CAPITAL INC.
By: __________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Notice Address:
Key Bank
NY-00-01-0304
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CREDIT, INC.
By:___________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Vice President
Notice Address:
LaSalle Business Credit, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
183
MASTER SENIOR FLOATING RATE TRUST
By:__________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
Notice Address:
c/o Merrill ▇▇▇▇▇ Asset Management
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
184
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Investment Managers, L.P.
as Investment Advisor
By:__________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
Notice Address:
c/o Merrill ▇▇▇▇▇ Asset Management
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
185
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING
RATE FUND, INC.
By:_________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
Notice Address:
c/o Merrill ▇▇▇▇▇ Asset Management
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
186
PB Capital Corporation (FKA BHF (USA)
CAPITAL CORPORATION)
By:_______________________________________
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By:________________________________________
Name: ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
Notice Address:
PB Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ HIGH INCOME
INVESTMENTS LTD,
By: ING Investments, LLC as its
investment manager
By:__________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President / Portfolio Manager
Notice Address:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
188
PILGRIM CLO 1999-1 LTD.
By: ING Investments, LLC as its
investment manager
By:__________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President / Portfolio Manager
Notice Address:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
189
PINEHURST TRADING, INC.
By:_________________________________
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
Notice Address:
Bank Of America, N.A.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ 1-001-15-01
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
190
PNC BANK, NATIONAL ASSOCIATION
By:_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
PNC Bank, National Association
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
191
THE PROVIDENT BANK
By:______________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
Provident Business Credit
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
192
SHARP HILL CAPITAL LLC
By:________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Notice Address:
Sharp Hill Capital LLC
c/o GE Capital Services Structured
Finance Group, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
193
SKM-LIBERTYVIEW CBO I, LTD.
By:________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
Notice Address:
LibertyView Capital Management
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
194
U.S. BANK NATIONAL ASSOCIATION
By:________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
U.S. Bank National Association
▇▇-▇▇-05BC
▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
195
WACHOVIA BANK, NATIONAL ASSOCIATION (F/K/A)
FIRST UNION NATIONAL BANK as a Lender
By:___________________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
Notice Address:
NC0537
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
196
ZERMATT CBO LIMITED
as a Lender
By: UBS AG, New York Branch, as its Collateral
Manager
By:_______________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Director
By:_______________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Director
Notice Address:
c/o UBS AG, New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
197