SENIOR SUBORDINATED CREDIT AGREEMENT
dated as of April 1, 1999
among
EXPRESS SCRIPTS, INC.,
a Delaware corporation,
as Borrower,
THE LENDERS LISTED HEREIN,
as Lenders,
CREDIT SUISSE FIRST BOSTON,
as Lead Arranger and Administrative Agent,
and
BT ALEX. ▇▇▇▇▇ INCORPORATED,
as Co-Arranger
TABLE OF CONTENTS
Page
SECTION 1.
DEFINITIONS
1.1. Certain Defined Terms.................................................2
1.2. Accounting Terms; Utilization of GAAP for Purposes
of Calculations Under Agreement; Fiscal Periods for
Determining Compliance and Pricing.................................32
1.3. Other Definitional Provisions and Rules of Construction...............32
SECTION 2.
AMOUNTS AND TERMS OF LOAN COMMITMENT AND LOANS; NOTES
2.1. Bridge Loan and Bridge Note...........................................32
2.2. Term Loan and Term Note...............................................34
2.3. Interest on the Loans.................................................35
2.4. Fees..................................................................38
2.5. Prepayments and Payments..............................................38
2.6. Use of Proceeds.......................................................43
2.7. Special Provisions Governing Eurodollar Rate Loans....................43
2.8. Increased Costs; Taxes; Capital Adequacy..............................46
2.9. Obligation of Lenders to Mitigate; Replacement........................51
SECTION 3.
CONDITIONS TO LOANS
3.1. Conditions to Bridge Loans............................................52
3.2. Conditions to Term Loan...............................................57
SECTION 4.
COMPANY'S REPRESENTATIONS AND WARRANTIES
4.1. Organization, Powers, Qualification, Good Standing,
Business and Subsidiaries..........................................58
4.2. Authorization of Borrowing, Etc.......................................59
4.3. Financial Condition...................................................60
4.4. No Material Adverse Change; No Restricted Payments....................60
4.5. Title to Properties; Liens............................................60
4.6. Litigation; Adverse Facts.............................................61
4.7. Payment of Taxes......................................................61
4.8. Performance of Agreements; Materially Adverse Agreements;
Material Contracts.................................................62
4.9. Governmental Regulation; Accreditation................................62
4.10. Securities Activities.................................................62
4.11. Employee Benefit Plans................................................62
4.12. Certain Fees..........................................................63
4.13. Environmental Protection..............................................63
4.14. Employee Matters......................................................64
4.15. Solvency..............................................................64
4.16. Disclosure............................................................64
4.17. Accuracy of Representations and Warranties in the
Definitive Acquisition Documents...................................65
4.18. Year 2000 Compliance..................................................65
SECTION 5.
COMPANY'S AFFIRMATIVE COVENANTS
5.1. Financial Statements and Other Reports................................65
5.2. Corporate Existence, Etc..............................................70
5.3. Payment of Taxes and Claims; Tax Consolidation........................70
5.4. Maintenance of Properties; Insurance..................................71
5.5. Inspection Rights; Lender Meeting.....................................71
5.6. Compliance With Laws, Etc.............................................72
5.7. Environmental Claims and Violations of Environmental Laws.............72
5.8. Execution of Senior Subordinated Subsidiary Guaranty by
Certain Subsidiaries and Future Subsidiaries...................72
5.9. Year 2000 Compliance..................................................73
5.10. Equal Security for Loans and Notes....................................73
5.11. Take-Out Financing....................................................74
5.12. Exchange of Term Notes................................................74
5.13. Register..............................................................75
5.14. Senior Subordinated Indenture; Etc....................................76
5.15. Shelf Registration....................................................76
SECTION 6.
NEGATIVE COVENANTS
6.1. Indebtedness..........................................................77
6.2. Liens.................................................................80
6.3. Restricted Payments...................................................81
6.4. Senior Subordinated Indebtedness......................................83
6.5. Restriction on Fundamental Changes....................................83
6.6. Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries................................84
6.7. Transactions with Stockholders and Affiliates.........................85
6.8. Subsidiary Stock......................................................86
6.9. Business Activities...................................................87
6.10. Asset Sales...........................................................87
6.11. Amendments or Waivers of Certain Documents............................87
6.12. Amendments to Charter Documents.......................................88
SECTION 7.
EVENTS OF DEFAULT
7.1. Failure To Make Payments When Due.....................................88
7.2 Default in Other Agreements...........................................88
7.3. Breach of Certain Covenants...........................................89
7.4. Breach of Warranty....................................................89
7.5. Other Defaults Under Loan Documents...................................89
7.6. Involuntary Bankruptcy; Appointment of Receiver, Etc..................89
7.7. Voluntary Bankruptcy; Appointment of Receiver, Etc....................90
7.8. Judgments and Attachments.............................................90
7.9. Dissolution...........................................................90
7.10. Change in Control.....................................................90
7.11. Invalidity of Senior Subordinated Subsidiary Guaranty;
Repudiation of Obligations.........................................90
7.12. Failure to Consummate the Acquisition.................................91
SECTION 8
SUBORDINATION
8.1 Obligations Subordinated to Senior Debt of Company....................92
8.2 Priority and Payment Over of Proceeds in Certain Events...............92
8.3 Payments May Be Paid Prior to Dissolution.............................95
8.4 Rights of Holders of Senior Debt of Company Not To Be Impaired........95
8.5 Subrogation...........................................................96
8.6 Obligations of Company Unconditional..................................96
8.7 Lenders Authorize Administrative Agent To Effectuate Subordination....97
SECTION 9.
AGENTS
9.1. Appointment...........................................................97
9.2. Powers and Duties; General Immunity...................................98
9.3. Representations and Warranties; No Responsibility for
Appraisal of Creditworthiness......................................99
9.4. Right to Indemnity....................................................100
9.5. Successor Agent.......................................................100
9.6. Subsidiary Guaranties.................................................100
SECTION 10.
MISCELLANEOUS
10.1. Assignments and Participations in Loans...............................101
10.2. Expenses..............................................................105
10.3. Indemnity.............................................................105
10.4. Set-Off...............................................................106
10.5. Ratable Sharing.......................................................107
10.6. Amendments and Waivers................................................108
10.7. Independence of Covenants.............................................109
10.8. Notices...............................................................109
10.9. Survival of Representations, Warranties and Agreements................109
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative.................109
10.11 Marshalling; Payments Set Aside.......................................110
10.12 Severability..........................................................110
10.13 Obligations Several; Independent Nature of Lenders' Rights............110
10.14 Headings..............................................................110
10.15 Applicable Law........................................................111
10.16 Successors and Assigns................................................111
10.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS........................111
10.18 WAIVER OF JURY TRIAL..................................................112
10.19 Confidentiality.......................................................113
10.20 Counterparts; Effectiveness...........................................113
SIGNATURES S-1
Schedule 2.6 Scheduled Indebtedness
Schedule 3.1 Remaining Indebtedness
Schedule 4.1 Subsidiaries
Schedule 4.6 Litigation
Schedule 4.8 Material Contracts
Schedule 6.1 Permitted Indebtedness
Schedule 6.2 Permitted Liens
Schedule 6.3 Permitted Investments
Exhibit I Form of Notice of Borrowing
Exhibit II Form of Bridge Note
Exhibit III Form of Notice of Conversion
Exhibit IV Form of Term Note
Exhibit V Form of Compliance Certificate
Exhibit VI-A Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.,
General Counsel of Company
Exhibit VI-B Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
special New York counsel for Loan Parties
Exhibit VII Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Counsel to Agents
Exhibit VIII Form of Assignment Agreement
Exhibit IX Form of Certificate Re Non-Bank Status
Exhibit X Form of Senior Subordinated Subsidiary Guaranty
Exhibit XI Form of Solvency Certificate
EXPRESS SCRIPTS, INC.
SENIOR SUBORDINATED CREDIT AGREEMENT
This SENIOR SUBORDINATED CREDIT AGREEMENT is dated as of April 1, 1999 and
entered into by and among EXPRESS SCRIPTS, INC., a Delaware corporation
("Company"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF
(each individually referred to herein as a "Lender" and collectively as
"Lenders") and CREDIT SUISSE FIRST BOSTON, a bank organized under the laws of
Switzerland, acting through its New York Branch ("CSFB"), as lead arranger (in
such capacity, the "Lead Arranger"), and administrative agent (in such capacity,
the "Administrative Agent").
R E C I T A L S
WHEREAS, Company intends to (i) acquire (the "Acquisition") all the issued
and outstanding shares of capital stock of Diversified Pharmaceutical Services,
Inc. ("DPS"), a subsidiary of SmithKline ▇▇▇▇▇▇▇ Corporation (the "Seller"),
pursuant to an acquisition agreement between Company and Seller (the "DPS
Acquisition Agreement") and (ii) refinance (the "Refinancing"), in connection
with the Acquisition, certain of Company's existing indebtedness;
WHEREAS, Company desires that Lenders extend credit in the form of a $150.0
million senior subordinated credit facility;
WHEREAS, the proceeds of the Loans made on the Closing Date, together with
borrowings of $890.0 million under the Senior Secured Credit Agreement, are to
be used (i) to finance the Acquisition, (ii) to consummate the Refinancing and
(iii) to pay fees and expenses related to the Acquisition and the Refinancing;
WHEREAS, all of the domestic Subsidiaries of Company, excluding Practice
Patterns Science, Inc., Great Plains Reinsurance Company, ValueRx of Michigan,
Inc., and other Subsidiaries consented to by the Requisite Lenders from time to
time (collectively, the "Exempt Subsidiaries"), have agreed, on a senior
subordinated basis, to guarantee the Obligations hereunder and under the other
Loan Documents;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Company, Lenders and Agents agree as
follows:
SECTION 1.
DEFINITIONS
1.1. Certain Defined Terms
The following terms used in this Agreement shall have the following
meanings:
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Subsidiary of Company or
at the time it merges or consolidates with Company or any of its Subsidiaries or
assumed in connection with the acquisition of assets from such Person and in
each case not incurred by such Person in connection with, or in anticipation or
contemplation of, such Person becoming a Subsidiary of Company or such
acquisition, merger or consolidation.
"Acquisition" has the meaning assigned to that term in the recitals to this
Agreement.
"Adjusted Eurodollar Rate" means, with respect to any Eurodollar Rate Loans
for any Interest Period, an interest rate per annum equal to the product of (a)
the Eurodollar Rate in effect for such Interest Period and (b) Statutory
Reserves.
"Administrative Agent" has the meaning assigned to that term in the
preamble to this Agreement.
"Affected Lender" has the meaning assigned to that term in subsection 2.7C.
"Affiliate", as applied to any Person, means 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. For purposes of subsection 6.7, beneficial ownership
of 5.0% or more of any class of equity Securities of Company or any of its
Subsidiaries shall be deemed control.
"Affiliate Transaction" has the meaning assigned to such term in subsection
6.7(a).
"Agents" means, collectively, the Administrative Agent, the Lead Arranger
and the Co-Arranger and also any successor Agents appointed pursuant to
subsection 9.5.
"Aggregate Amounts Due" has the meaning assigned to such term in subsection
10.5.
"Agreement" means this Senior Subordinated Credit Agreement dated as of
April 1, 1999, as it may be amended, supplemented or otherwise modified from
time to time.
"Alternate Base Rate" means, at any time, the higher of (i) the Prime Rate
or (ii) the rate which is 1/2 of 1% in excess of the Federal Funds Effective
Rate.
"Alternate Base Rate Loans" means Loans bearing interest at rates
determined by reference to the Alternate Base Rate.
"Applicable Rate" means for each Interest Period the Eurodollar Rate then
in effect or if, in accordance with the provisions of subsection 2.7B or C,
certain Eurodollar Rate Loans are converted into Alternate Base Rate Loans, the
Alternate Base Rate in effect from time to time.
"Applicable Spread" means 5.0% for the period from and including the
Closing Date and to but excluding the 90th day following the Closing Date and
for each subsequent 90-day period the Applicable Spread in effect for the
immediately preceding 90-day period plus 0.50%.
"Approved Fund" means, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is managed
by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"Asset Acquisition" means (a) an Investment by Company or any Subsidiary of
Company in any other Person pursuant to which such Person shall become a
Subsidiary of Company, or shall be merged with or into Company or any Subsidiary
of Company, or (b) the acquisition by Company or any Subsidiary of Company of
the assets of any Person (other than a Subsidiary of Company) which constitute
all or substantially all of the assets of such Person or comprise any division
or line of business of such Person or any other properties or assets of such
Person other than in the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease (other than operating leases entered into in the ordinary course
of business), assignment or other transfer for value by Company or any of its
Subsidiaries (including any Sale and Leaseback Transaction) to any Person other
than Company or a Wholly Owned Subsidiary of Company of (a) any Capital Stock of
any Subsidiary of Company; or (b) any other property or assets of Company or any
Subsidiary of Company other than in the ordinary course of business; provided,
however, that Asset Sales shall not include (i) a transaction or series of
related transactions for which Company or its Subsidiaries receive aggregate
consideration of less than $500,000, (ii) the sale, lease, conveyance,
disposition or other transfer of all or substantially all of the assets of
Company as permitted under subsection 6.5A and (iii) a disposition consisting of
a Permitted Investment or Restricted Payment permitted under subsection 6.3
hereof.
"Assignment Agreement" means an Assignment Agreement in substantially the
form of Exhibit VIII annexed hereto.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Bankruptcy Order" means any court order made in a proceeding pursuant to
or within the meaning of the Bankruptcy Code, containing an adjudication of
bankruptcy or insolvency, or providing for liquidation, winding up, dissolution
or reorganization, or appointing a custodian of a debtor or of all or any
substantial part of a debtor's property, or providing for the staying,
arrangement, adjustment or composition of indebtedness or other relief of a
debt.
"Board of Directors" means, as to any Person, the board of directors or
management or supervisory board of such Person, as the case may be, or any duly
authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Administrative Agent.
"Bridge Loan" has the meaning assigned to such term in subsection 2.1A.
"Bridge Loan Commitment" has the meaning assigned to such term in
subsection 2.1A.
"Bridge Note" has the meaning assigned to such term in subsection 2.1D.
"Business Day" means any day excluding Saturday, Sunday and any day which
is a legal holiday under the laws of the State of New York or the State of
Missouri or London, England, or is a day on which banking institutions located
in any such jurisdiction are authorized or required by law or other governmental
action to close.
"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, is accounted for as a capital lease on the balance sheet of that
Person.
"Capital Stock" means (i) with respect to any Person that is a corporation,
any and all shares, interests, participations or other equivalents (however
designated and whether or not voting) of corporate stock, including each class
of Common Stock and Preferred Stock of such Person and including any warrants,
options or rights to acquire any of the foregoing and instruments convertible
into any of the foregoing, and (ii) with respect to any Person that is not a
corporation, any and all partnership or other equity interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the obligations of
such Person under a lease that are required to be classified and accounted for
as capital lease obligations under GAAP and, for purposes of this definition,
the amount of such obligations at any date shall be the capitalized amount of
such obligations at such date, determined in accordance with GAAP.
"Cash" means money, currency or a credit balance in a demand, time,
savings, passbook or like account, other than an account evidenced by a
negotiable certificate of deposit.
"Cash Equivalents" means, as at any date of determination, (i) marketable
securities (a) issued or directly and unconditionally guaranteed as to interest
and principal by the United States or (b) issued by any agency of the United
States the obligations of which are backed by the full faith and credit of the
United States, in each case maturing within one year after such date; (ii)
marketable direct obligations issued by any state of the United States or any
political subdivision of any such state or any public instrumentality thereof,
in each case maturing within one year after such date and having, at the time of
the acquisition thereof, the highest rating obtainable from either S&P or
▇▇▇▇▇'▇; (iii) commercial paper maturing no more than one year from the date of
creation thereof and having, at the time of the acquisition thereof, a rating of
at least A-1 from S&P or at least P-1 from ▇▇▇▇▇'▇; (iv) certificates of deposit
or bankers' acceptances maturing within one year after such date and issued or
accepted by any Lender or by any commercial bank organized under the laws of the
United States of America or any state thereof or the District of Columbia that
(a) is at least "adequately capitalized" (as defined in the regulations of its
primary Federal banking regulator) and (b) has Tier 1 capital (as defined in
such regulations) of not less than $100,000,000; and (v) shares of any money
market mutual fund that (a) has at least 95% of its assets invested continuously
in the types of investments referred to in clauses (i) and (ii) above, (b) has
net assets of not less than $500,000,000, and (c) has the highest rating
obtainable from either S&P or ▇▇▇▇▇'▇.
"Certificate Re Non-Bank Status" means a certificate substantially in the
form of Exhibit IX annexed hereto delivered by a Lender to Administrative Agent
pursuant to subsection 2.8B(iii).
"Change of Control" means the occurrence of any Person or any two or more
Persons acting in concert (other than New York Life and its Affiliates) having
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Exchange Act), directly or
indirectly, of Securities of Company (or other Securities convertible into such
Securities) representing 20% or more of the combined voting power of all
Securities of Company entitled to vote in the election of directors, other than
Securities having such power only by reason of the happening of a contingency;
provided that the acquisition of shares of Common Stock of Company owned by New
York Life and its Affiliates by one or more Persons from time to time shall not
be a Change of Control.
"Change of Control Date" has the meaning assigned to that term in
subsection 2.5A(iv)(a).
"Change of Control Offer" has the meaning assigned to that term in
subsection 2.5A(iv)(a).
"Closing Date" means the date on which the Bridge Loans are made.
"Co-Arranger" has the meaning assigned to that term in the preamble to this
Agreement.
"Commitments" means the commitments of Lenders to make the Bridge and Term
Loans as set forth in subsections 2.1A and 2.2A.
"Company" has the meaning assigned to that term in the preamble to this
Agreement.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit V annexed hereto delivered to Administrative Agent and Lenders by
Company pursuant to subsection 5.1(iii).
"Consolidated 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, (iv) total depreciation expense, (v)
total amortization expense, (vi) other non-cash items incurred in the ordinary
course of business reducing Consolidated Net Income not in excess of 10% of
Consolidated Net Worth and (vii) for any period that includes Fiscal Quarters
ending on or prior to March 31, 2000, retention bonuses in an aggregate amount
up to $10.0 million to the extent actually paid or accrued in such period to key
employees of DPS less other non-cash items increasing Consolidated Net Income
for such period, all of the foregoing as determined on a consolidated basis for
Company and its Subsidiaries in conformity with GAAP. "Consolidated Fixed Charge
Coverage Ratio" means the ratio of Consolidated EBITDA during the four full
fiscal quarters (the "Four Quarter Period") ending on or prior to the date of
the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (the "Transaction Date") to Consolidated Fixed Charges for
such Four Quarter Period. In addition to and without limitation of the
foregoing, for purposes of this definition, "Consolidated EBITDA" and
"Consolidated Fixed Charges" shall be calculated after giving effect on a pro
forma basis for the period of such calculation to (i) the incurrence or
repayment of any Indebtedness of Company or any of its Subsidiaries (and the
application of the proceeds thereof) giving rise to the need to make such
calculation and any incurrence or repayment of other Indebtedness (and the
application of the proceeds thereof), other than the incurrence or repayment of
Indebtedness in the ordinary course of business for working capital purposes
pursuant to working capital facilities, occurring during the Four Quarter Period
or at any time subsequent to the last day of the Four Quarter Period and on or
prior to the Transaction Date, as if such incurrence or repayment, as the case
may be (and the application of the proceeds thereof), occurred on the first day
of the Four Quarter Period and (ii) any Asset Sales or Asset Acquisitions
(including, without limitation, any Asset Acquisition giving rise to the need to
make such calculation as a result of Company or one of its Subsidiaries
(including any Person who becomes a Subsidiary as a result of the Asset
Acquisition) incurring, assuming or otherwise being liable for Acquired
Indebtedness and also including any Consolidated EBITDA (provided that such
Consolidated EBITDA shall be included only to the extent includable pursuant to
the definition of "Consolidated Net Income") attributable to the assets which
are the subject of the Asset Acquisition or Asset Sale during the Four Quarter
Period) occurring during the Four Quarter Period or at any time subsequent to
the last day of the Four Quarter Period and on or prior to the Transaction Date,
as if such Asset Sale or Asset Acquisition (including the incurrence, assumption
or liability for any such Acquired Indebtedness) occurred on the first day of
the Four Quarter Period. If Company or any of its Subsidiaries directly or
indirectly guarantees Indebtedness of a third Person, the preceding sentence
shall give effect to the incurrence of such guaranteed Indebtedness as if
Company or any Subsidiary had directly incurred or otherwise assumed such
guaranteed Indebtedness; provided, however, that where Company and one or more
of its Subsidiaries are, or two or more of Company's Subsidiaries are, liable
for the same Indebtedness, whether as principal or guarantors, the above
sentence shall be calculated to avoid duplication. Furthermore, in calculating
"Consolidated Fixed Charges" for purposes of determining the denominator (but
not the numerator) of this "Consolidated Fixed Charge Coverage Ratio," (1)
interest on outstanding Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter shall be
deemed to have accrued at a fixed rate per annum equal to the rate of interest
on such Indebtedness in effect on the Transaction Date; (2) if interest on any
Indebtedness actually incurred on the Transaction Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest rate in
effect on the Transaction Date will be deemed to have been in effect during the
Four Quarter Period; and (3) notwithstanding clause (1) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by agreements relating to Interest Swap Obligations, shall be deemed to
accrue at the rate per annum resulting after giving effect to the operation of
such agreements.
"Consolidated Fixed Charges" means the sum, without duplication, of (i)
Consolidated Interest Expense, plus (ii) to the extent not included in
Consolidated Interest Expense, the product of (x) the amount of all dividend
payments on any series of Preferred Stock of Company (other than dividends paid
in Qualified Capital Stock) paid, accrued or scheduled to be paid or accrued
during such period times (y) a fraction, the numerator of which is one and the
denominator of which is one minus the then current effective consolidated
federal, state and local tax rate of Company, expressed as a decimal.
"Consolidated Interest Expense" means, for any period, total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP and capitalized interest) of Company and its Subsidiaries on a
consolidated basis 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
and net costs under Interest Swap Obligations.
"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 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 and (iv) any after-tax gains or losses
attributable to Asset Sales or returned surplus assets of any Pension Plan.
"Consolidated Net Worth" means, as at any date of determination, the sum of
the capital stock and additional paid-in capital plus retained earnings (or
minus accumulated deficits) of Company and its Subsidiaries on a consolidated
basis determined in conformity with GAAP.
"Contingent Obligations" shall mean, as to any Person, without duplication,
any obligation of such Person guaranteeing or expressly intended to guarantee by
its terms any Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including any "keep-well" or "make-well" agreement,
guarantee of return on equity or other obligation of such Person and including
any obligation of such Person, whether or not contingent, to (a) purchase any
such primary obligation or any property constituting direct or indirect security
therefor, (b) advance or supply funds (i) for the purchase or payment of any
such primary obligation or (ii) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (c) purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (d) otherwise
assure or hold harmless the owner of such primary obligation against loss in
respect thereof; provided, however, that the term Contingent Obligation such not
include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Contingent Obligations shall be deemed to
be the lower of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation is made and
(b) the maximum amount for which such guaranteeing Person may be liable pursuant
to the terms of the instrument embodying such Contingent Obligation, unless such
primary obligation and the maximum amount for which such guaranteeing Person may
be liable or not stated or determinable, in which case the amount of such
Contingent Obligation shall be such guaranteeing Persons maximum reasonable
anticipated liability in respect thereof as determined by Company reasonably and
in good faith.
"Contractual Obligation", as applied to any Person, means any Security
issued by that Person or any material indenture, mortgage, deed of trust,
contract, undertaking, agreement or other 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.
"Conversion Date" means the one year anniversary of the Closing Date or
such later date to which the Conversion Date may be extended pursuant to
subsection 3.2D.
"CSFB" has the meaning assigned to such term in the preamble to this
Agreement.
"CSFBC" has the meaning assigned to such term in the definition of
"Take-Out Banks."
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect Company
or any Subsidiary of Company against fluctuations in currency values.
"Default" means an event or condition, the occurrence of which is, or with
the lapse of time or the giving of notice or both would be, an Event of Default.
"Definitive Acquisition Documents" has the meaning assigned to that term in
subsection 3.1L of this Agreement.
"Demand Take-Out Securities" means any of (i) the senior subordinated notes
of Company issued under an indenture satisfying the definition of Senior
Subordinated Indenture (the "Take-Out Debt Securities"), (ii) the Preferred
Stock of Company (the "Take-Out Preferred Stock") or (iii) the Class A Common
Stock, par value $.01 per share of Company (the "Take-Out Common Stock"), in
each case the proceeds of which shall be used to prepay the Bridge Notes in
whole or in part.
"Designated Senior Debt" means (i) Indebtedness under or in respect of the
Senior Secured Credit Agreement and (ii) any other Indebtedness constituting
Senior Debt which, at the time of determination, has an aggregate principal
amount of at least $25.0 million and is specifically designated in the
instrument evidencing such Senior Debt as "Designated Senior Debt" by Company.
"Disqualified Capital Stock" means that portion of any Capital Stock which,
by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof on or prior to, in the
case of the issuance of Disqualified Capital Stock prior to the Conversion Date,
the final maturity date of the Bridge Notes, and in the case of the issuance of
Disqualified Capital Stock on or after the Conversion Date, the final maturity
date of the Term Notes.
"Dollars" and the sign "$" mean the lawful money of the United States.
"DPS" has the meaning assigned to that term in the recitals to this
Agreement.
"DPS Acquisition Agreement" has the meaning assigned to such term in the
recitals to this Agreement.
"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, mutual funds and lease
financing companies; and (B) any Lender and any Affiliate of any Lender or any
SPV; provided that no Affiliate of Company shall be an Eligible Assignee.
"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 Company,
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), in each case in writing, 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 (iii) in connection with any
actual or alleged damage, injury, threat or harm to health or safety, as
relating to the environment, 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 binding requirements of governmental authorities relating to (i)
environmental matters, (ii) any activity, event or occurrence involving
Hazardous Materials, or (iii) occupational safety and health, industrial
hygiene, land use or, as relating to the environment, the protection of human,
plant or animal health or welfare, in any manner applicable to Company or any of
its Subsidiaries or any Facility, including the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. ss. 9601 et seq.), the
Hazardous Materials Transportation Act (49 U.S.C. ss. 1801 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.), the Federal
Water Pollution Control Act (33 U.S.C. ss. 1251 et seq.), the Clean Air Act (42
U.S.C. ss. 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. ss. 2601
et seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. ss.
136 et seq.), the Occupational Safety and Health Act (29 U.S.C. ss. 651 et
seq.), the Oil Pollution Act (33 U.S.C. ss. 2701 et seq.) and the Emergency
Planning and Community Right-to-Know Act (42 U.S.C. ss. 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.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor ----- thereto.
"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 Company or any of its
Subsidiaries shall continue to be considered an ERISA Affiliate of Company or
such Subsidiary within the meaning of this definition with respect to the period
such entity was an ERISA Affiliate of Company or such Subsidiary and with
respect to liabilities arising after such period for which Company 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 4041(c) of ERISA; (iv) the withdrawal by
Company, 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 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 would 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 Company, 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 Company, 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 that results in liability therefor, or the receipt by Company, 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) 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
(ix) 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,
provided that such imposition is not otherwise a "reportable event."
"Eurodollar Business Day" means any day (i) excluding Saturday, Sunday and
any day that is a legal holiday under the laws of the State of New York 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) on which
commercial banks are open for international business (including dealings in
Dollar deposits) in London.
"Eurodollar Rate" shall mean, with respect to any Eurodollar Rate Loan for
any Interest Period, the rate per annum determined by Administrative Agent at
approximately 11:00 a.m., London time, on the date which is two Business Days
prior to the beginning of such Interest Period by reference to the British
Bankers' Association Interest Settlement Rates for deposits in Dollars (as set
forth by any service selected by Administrative Agent which has been nominated
by the British Bankers' Association as an authorized information vendor for the
purpose of displaying rates) for a period equal to such Interest Period,
provided that, to the extent that an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition, the "Eurodollar Rate" shall be
the interest rate per annum determined by Administrative Agent equal to the rate
per annum at which deposits in dollars are offered for such Interest Period by
Administrative Agent in the London interbank market in London, England at
approximately 11:00 a.m., London time, on the date which is two Business Days
prior to the beginning of such Interest Period. "Eurodollar Rate Loans" means
Loans bearing interest at rates determined by reference to the Adjusted
Eurodollar Rate.
"Event of Default" means each of the events set forth in Section 8.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor statute.
"Exchange Notes" has the meaning assigned to such term in subsection 5.12.
"Exchange Request" has the meaning assigned to such term in subsection
5.12.
"Exempt Subsidiaries" has the meaning assigned to such term in the recitals
to this Agreement.
"Existing Credit Agreement" means that certain Credit Agreement dated as of
April 1, 1998 by and among Company, the lenders named therein and Bankers Trust
Company, as administrative agent, as amended from time to time prior to the
Closing Date.
"Exposure" means, with respect to any Lender as of any date of
determination (i) prior to the funding of the Bridge Loans, such Lender's
Commitment and (ii) after the funding of the Bridge Loans, the outstanding
principal amount of the Loan of that Lender.
"Express Online" means Express Online, Inc.
"fair market value" means, with respect to any asset or property, the price
which could be negotiated in an arm's-length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair market value
shall be determined by the Board of Directors of the Company acting reasonably
and in good faith and shall be evidenced by a Board Resolution of the Board of
Directors of the Company delivered to the Administrative Agent.
"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.
"Fee Letter" means the fee letter dated as of February 8, 1999 by and
between Company and CSFB relating to certain fees payable by Company in respect
to the Agreement.
"Financial Plan" has the meaning assigned to that term in subsection
5.1(xii).
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Company and its Subsidiaries ending
on December 31 of each calendar year.
"Fixed Rate" means a rate of interest per annum equal to the greatest of
(i) the interest rate on the outstanding Term Loans immediately preceding the
delivery of the notice specified in subsection 2.3A(ii) with respect to such
Term Loans, (ii) the Ten Year U.S. Treasury Rate (on the first date notice is
given to Administrative Agent pursuant to subsection 2.3A(ii) to convert any
portion of the Floating Rate Loan to a Fixed Rate Loan) plus 5.0% and (iii) the
CSFBC Single-B High Yield Index Rate (on the first date notice is given to
Administrative Agent pursuant to subsection 2.3A(ii) to convert any portion of a
Floating Rate Loan to a Fixed Rate Loan) plus 2.0%.
"Fixed Rate Loans" mean Loans described in subsection 2.3A(ii).
"Fixed Rate Spread" means 0.50% for the period from and including the first
date notice is given to Administrative Agent pursuant to subsection 2.3A(ii) to
convert any portion of a Floating Rate Loan into a Fixed Rate Loan and to but
excluding the 90th day following such date and for each subsequent 90-day period
the Fixed Spread in effect for the immediately preceding 90-day period plus
0.50%.
"Floating Rate Loans" means the loans described in subsection 2.3A(i).
"Funding and Payment Office" means (i) the office of Administrative Agent
located at Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or (ii) such other
office of Administrative Agent as may from time to time hereafter be designated
as such in a written notice delivered by Administrative Agent 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 subsection 1.2, 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, provided that, if Company notifies Administrative
Agent that Company requests an amendment to any provision hereof to eliminate
the effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if Administrative
Agent requests an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in
GAAP or in the application thereof, then such provision shall be interpreted on
the basis of GAAP as in effect and applied immediately before such change shall
have become effective until the earliest of (i) the withdrawal of such notice,
(ii) the amendment of such provision in accordance herewith, or (iii) 180 days
after such notice has been given.
"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.
"Grace Period" has the meaning assigned to such term in subsection 3.2.D.
"Granting Lender" has the meaning assigned to such term in subsection
10.1E.
"Hazardous Materials" means (i) any chemical, material or substance at any
time defined as or included in the definition 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 import 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 friable asbestos-containing
materials; (vii) urea formaldehyde foam insulation; (viii) electrical equipment
which contains any oil or dielectric fluid containing polychlorinated biphenyls;
(ix) pesticides; and (x) any other chemical, material or substance, exposure to
which is prohibited, limited or regulated by any governmental authority pursuant
to Environmental Laws.
"Incur" means, with respect to any Indebtedness or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
guarantee or otherwise become liable in respect of such Indebtedness or other
obligation or the recording, as required pursuant to GAAP or otherwise, of any
such Indebtedness or other obligation on the balance sheet of such Person (and
"Incurrence," "Incurred", "Incurrable" and "Incurring" shall have meanings
correlative to the foregoing); provided, however, that any amendment,
modification or waiver of any document pursuant to which Indebtedness was
previously Incurred shall only be deemed to be an Incurrence of Indebtedness if
and to the extent such amendment, modification or waiver increases the principal
thereof or interest rate or premium payable thereon; provided, further, that any
Indebtedness of a Person existing at the time such Person becomes (after the
Closing Date) a Subsidiary of Company (whether by merger, consolidation,
acquisition or otherwise) shall be deemed to be Incurred by such Subsidiary at
the time it becomes a Subsidiary of Company.
"Indebtedness" means with respect to any Person, without duplication, (i)
all indebtedness, obligations and liabilities of such Person for borrowed money,
(ii) all indebtedness, obligations and liabilities of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all Capitalized
Lease Obligations of such Person, (iv) all obligations and liabilities of such
Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all indebtedness, obligations and liabilities
under any title retention agreement (but excluding trade accounts payable and
other accrued liabilities arising in the ordinary course of business that are
not overdue by 60 days or more or are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted), (v) all
indebtedness, obligations and liabilities for the reimbursement of any obligor
on any letter of credit, banker's acceptance or similar credit transaction, (vi)
guarantees and other contingent obligations in respect of Indebtedness referred
to in clauses (i) through (v) above and clause (viii) below, (vii) all
indebtedness, obligations and liabilities of any other Person of the type
referred to in clauses (i) through (vi) which are secured by any lien on any
property or asset of such Person, the amount of such Indebtedness being deemed
to be the lesser of the fair market value of such property or asset or the
amount of the Indebtedness so secured, (viii) the net amount of all
indebtedness, obligations and liabilities under currency agreements and interest
swap agreements of such Person and (ix) all Disqualified Capital Stock issued by
such Person with the amount of Indebtedness represented by such Disqualified
Capital Stock being equal to the greater of its voluntary or involuntary
liquidation preference and its maximum fixed repurchase price, but excluding
accrued dividends, if any. For purposes hereof, the "maximum fixed repurchase
price" of any Disqualified Capital Stock which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such Disqualified
Capital Stock as if such Disqualified Capital Stock were purchased on any date
on which Indebtedness shall be required to be determined pursuant to this
Agreement, and if such price is based upon, or measured by, the fair market
value of such Disqualified Capital Stock, such fair market value shall be
determined reasonably and in good faith by the Board of Directors of the issuer
of such Disqualified Capital Stock.
"Indemnified Liabilities" has the meaning assigned to such term in
subsection 10.3.
"Indemnitee" has the meaning assigned to that term in subsection 10.3.
"Independent Financial Advisor" means a firm (i) which does not, and whose
directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in Company and (ii) which, in the judgment of the
Board of Directors of Company, is otherwise independent and qualified to perform
the task for which it is to be engaged.
"Initial Request Date" has the meaning assigned to such term in subsection
5.11.
"Interest Period" has the meaning assigned to such term in subsection 2.3E.
"Interest Rate Determination Date" means, with respect to any Interest
Period, the second Eurodollar Business Day prior to the first day of such
Interest Period.
"Interest Swap Obligations" means the obligations of any Person pursuant to
any arrangement with any other Person, whereby, directly or indirectly, such
Person is entitled to receive from time to time periodic payments calculated by
applying either a floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by such other Person calculated by
applying a fixed or a floating rate of interest on the same notional amount and
shall include, without limitation, interest rate swaps, caps, floors, collars
and similar agreements.
"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.
"Investment" means, with respect to any Person, any direct or indirect loan
or other extension of credit (including, without limitation, a guarantee) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition by such Person of any Capital Stock,
bonds, notes, debentures or other securities or evidences of Indebtedness issued
by, any other Person. "Investment" shall exclude extensions of trade credit by
Company and its Subsidiaries on commercially reasonable terms in accordance with
normal trade practices of Company or such Subsidiary, as the case may be. For
the purposes of subsection 6.3 hereof, the amount of any Investment shall be the
original cost of such Investment plus the cost of all additional Investments by
Company or any of its Subsidiaries, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to such
Investment, reduced by the payment of dividends, distributions, interest
payments or repayments of loans or advances in connection with such Investment
or any other amounts received in respect of such Investment; provided, however,
that no such payment of dividends, distributions, interest payments, repayment
of loans or advances or receipt of any such other amounts shall reduce the
amount of any Investment if such payment of dividends, distributions, interest
payments or repayment of loans or advances or receipt of any such amounts would
be included in Consolidated Net Income. If Company or any Subsidiary of Company
sells or otherwise disposes of any Common Stock of any direct or indirect
Subsidiary of Company such that, after giving effect to any such sale or
disposition, it ceases to be a Subsidiary of Company, Company shall be deemed to
have made an Investment on the date of any such sale or disposition equal to the
fair market value of the Common Stock of such Subsidiary not sold or disposed
of.
"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 corporate Subsidiary of any Person be considered to
be a Joint Venture to which such Person is a party.
"Lender" and "Lenders" means 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.
"Lien" means any lien, mortgage, deed of trust, pledge, 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).
"Loan Documents" means this Agreement, the Bridge Notes, the Term Notes,
the Senior Subordinated Subsidiary Guaranty, the Exchange Notes, the
Registration Rights Agreement and the Senior Subordinated Indenture.
"Loan Party" means each of Company and the Subsidiary Guarantors and "Loan
Parties" means all such Persons, collectively.
"Loans" means, collectively, Bridge Loans and Term Loans as each may be
outstanding.
"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.
"Material Adverse Effect" means (i) a material adverse effect upon the
business, assets, financial position, operations, or results of operations of
Company and its Subsidiaries taken as a whole or (ii) the material impairment of
the ability of any Loan Party to perform, or of Administrative Agent or Lenders
to enforce, the Obligations.
"Material Contract" means any contract or other arrangement to which
Company or any of its Subsidiaries is a party (other than the Loan Documents)
which is (i) listed on Schedule 4.8 as of the date hereof or (ii) filed by
Company or any of its Subsidiaries with the Securities and Exchange Commission.
"Maturity Date" has the meaning assigned to such term in subsection 2.2D.
"Maximum Cash Interest Rate" means an interest rate of 14% per annum;
provided that in computing such interest rate, fees paid to the Lenders shall
not be deemed an interest payment.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means any Employee Benefit Plan which is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds in
the form of cash or Cash Equivalents including payments in respect of deferred
payment obligations when received in the form of cash or Cash Equivalents (other
than the portion of any such deferred payment constituting interest) received by
Company or any of its Subsidiaries from such Asset Sale net of (a) reasonable
out-of-pocket expenses and fees relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees and sales
commissions), (b) taxes paid or payable after taking into account any reduction
in consolidated tax liability due to available tax credits or deductions and any
tax sharing arrangements and (c) appropriate amounts to be provided by Company
or any Subsidiary, as the case may be, as a reserve, in accordance with GAAP,
against any liabilities associated with such Asset Sale and retained by Company
or any Subsidiary, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale.
"Net Securities Proceeds" has the meaning assigned to such term in
subsection 2.5A(ii)(c).
"New York Life" means NYLIFE HealthCare Management, Inc., an indirect
subsidiary of New York Life Insurance Co., a mutual life insurance company
organized and existing under the laws of the State of New York.
"Non-US Lender" has the meaning assigned to such term in subsection
2.8B(iii)(a).
"Notes" means, collectively, the Bridge Notes and the Term Notes.
"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.
"Notice of Conversion" means a notice substantially in the form of Exhibit
III annexed hereto with respect to a proposed conversion.
"Obligations" means all obligations of every nature of each Loan Party from
time to time owed to the Lenders and the Agents under this Agreement, whether
for principal, reimbursements, interest, fees, expenses, indemnification or
otherwise.
"Offer Payment Date" has the meaning assigned to such term in such term in
subsection 2.5A(iv)(c)(3).
"Officers' Certificate" means, as applied to any corporation, a certificate
executed on behalf of such corporation by its chairman of the board (if an
officer) or its president or one of its vice presidents and by its chief
financial officer or its treasurer.
"Original Bridge Notes" has the meaning assigned to such term in subsection
2.1D.
"Original Term Notes" has the meaning assigned to such term in subsection
2.2E.
"Payment Blockage Period" has the meaning assigned to such term in
subsection 8.2B.
"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 Indebtedness" shall have the meaning assigned to such term in
subsection 6.1.
"Permitted Investments" means (i)(a) prior to the Conversation Date,
Investments by Company or any Subsidiary of Company in Subsidiaries of Company
or Joint Venture and described on Schedule 6.3 and Investments by Company or any
Subsidiary of Company in any Person that is or will become immediately after
such Investment a Wholly Owned Subsidiary of Company or that will merge or
consolidate into Company or a Wholly Owned Subsidiary of Company, and (b) after
the Conversion Date only, Investments by Company or any Subsidiary of Company in
any Person that is or will become immediately after such Investment a Subsidiary
of Company or that will merge or consolidate into Company or a Subsidiary of
Company; (ii) Investments in Company by any Wholly Owned Subsidiary of Company;
provided, however, that any Indebtedness evidencing such Investment is unsecured
and subordinated in right of payment, pursuant to a written agreement, to
Company's obligations under the Loan Documents; (iii) Investments in cash and
Cash Equivalents; (iv) loans and advances to employees and officers of Company
and its Subsidiaries in the ordinary course of business for bona fide business
purposes not in excess of $2.0 million at any one time outstanding; (v) Currency
Agreements and Interest Swap Obligations entered into in the ordinary course of
Company's or its Subsidiaries' businesses and otherwise in compliance with this
Agreement; (vi) Investments in securities of trade creditors or customers
received pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers; (vii) Investments
made by Company or its Subsidiaries as a result of consideration received in
connection with an Asset Sale made in compliance with subsection 6.10 hereof;
and (viii) guarantees of Indebtedness permitted to be incurred under subsection
6.1 hereof.
"Permitted Liens" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or claims either
(a) not delinquent or (b) contested in good faith by appropriate proceedings and
as to which Company or its Subsidiaries shall have set aside on its books such
reserves as may be required pursuant to GAAP;
(ii) statutory Liens of landlords or of mortgagees of landlords and Liens
of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen and
other Liens imposed by law incurred in the ordinary course of business for sums
not yet delinquent or being contested in good faith, if such reserve or other
appropriate provision, if any, as shall be required by GAAP shall have been made
in respect thereof;
(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, including any Lien securing letters of credit issued in the
ordinary course of business in connection therewith, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money);
(iv) judgment Liens not giving rise to an Event of Default so long as such
Lien is adequately bonded and any appropriate legal proceedings which may have
been duly initiated for the review of such judgment shall not have been finally
terminated or the period within which such proceedings may be initiated shall
not have expired;
(v) easements, rights-of-way, zoning restrictions and other similar charges
or encumbrances in respect of real property not interfering in any material
respect with the ordinary conduct of the business of Company or any of its
Subsidiaries;
(vi) any interest or title of a lessor under any lease permitted by this
Agreement; provided, however, that such Liens do not extend to any property or
assets which is not leased property subject to such lease or other property
subject to a Permitted Lien held by the lien holder of such lease;
(vii) Liens to finance property or assets (including the cost of
construction) of Company or any Subsidiary of Company acquired in the ordinary
course of business; provided, however, that (A) the related purchase money
Indebtedness shall not exceed the cost of such property or assets (including the
cost of construction) and shall not be secured by any property or assets of
Company or any Subsidiary of Company other than the property and assets so
acquired and (B) the Lien securing such Indebtedness shall be created within 90
days of such acquisition or construction;
(viii) Liens upon specific items of inventory or other goods and proceeds
of any Person securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such Person to facilitate the
purchase, shipment or storage of such inventory or other goods;
(ix) Liens securing reimbursement obligations with respect to commercial
letters of credit which encumber documents and other property relating to such
letters of credit and products and proceeds thereof;
(x) Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual, or warranty requirements of Company or any
of its Subsidiaries, including rights of offset and set-off;
(xi) Liens securing Interest Swap Obligations, which Interest Swap
Obligations relate to Indebtedness that is otherwise permitted to be incurred
hereunder;
(xii) Liens securing Indebtedness under Currency Agreements otherwise
permitted under subsection 6.1;
(xiii) Liens securing Acquired Indebtedness Incurred in accordance with
subsection 6.1 hereof; provided, however, that (A) such Liens secured such
Acquired Indebtedness at the time of and prior to the incurrence of such
Acquired Indebtedness by Company or a Subsidiary of Company and were not granted
in connection with, or in anticipation of, the incurrence of such Acquired
Indebtedness by Company or a Subsidiary of Company and (B) such Liens do not
extend to or cover any property or assets of Company or of any of its
Subsidiaries other than the property or assets that secured the Acquired
Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of
Company or a Subsidiary of Company and are no more favorable to the lienholders
than those securing the Acquired Indebtedness prior to the incurrence of such
Acquired Indebtedness by Company or a Subsidiary of Company;
(xiv) Liens arising out of consignment or similar arrangements for the sale
of goods in the ordinary course of business;
(xv) leases or subleases granted to others that do not materially interfere
with the ordinary course of business of Company and its Subsidiaries;
(xvi) Liens arising from filing Uniform Commercial Code financing
statements regarding leases;
(xvii) Liens in favor of customs and revenues authorities arising as a
matter of law to secure payment of custom duties in connection with the
importation of goods;
(xviii) 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;
(xix) licenses of patents, trademarks and other intellectual property
rights granted by Company 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 Company or such Subsidiary;
(xx) Liens imposed by Environmental Laws to the extent not in violation of
any of the representations, warranties or covenants in respect of Environmental
Laws made by Company in this Agreement; and
(xxi) Liens incurred in the ordinary course of business of Company or any
Subsidiary of Company after the Conversion Date with respect to obligations that
do not exceed $15.0 million at any one time outstanding and that (a) are not
incurred in connection with the borrowing of money or the obtaining of advances
or credit (other than trade credit in the ordinary course of business) and (b)
do not in the aggregate materially detract from the value of the property or
materially impair the use thereof in the operation of business by Company or
such Subsidiary.
"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.
"PIK Interest Amount" has the meaning assigned to such term in subsection
2.3B.
"Practice Patterns Science" means Practice Patterns Science, Inc.
"Preferred Stock" of any Person means any Capital Stock of such Person that
has preferential rights to any other Capital Stock of such Person with respect
to dividends or redemptions or upon liquidation.
"Prime Rate" means the rate that CSFB announces from time to time as its
prime lending rate, as in effect from time to time. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. CSFB or any other Lender may make commercial
loans or other loans at rates of interest at, above or below the Prime Rate.
"Pro Rata Share" means (i) with respect to all payments, computations and
other matters relating to any Commitment or any Loan of any Lender, the
percentage obtained by dividing (x) the Exposure of that Lender by (y) the
aggregate Exposure of all Lenders.
"Proceedings" has the meaning assigned to such term in subsection 5.1(ix).
"Purchase Money Obligations" of any Person means any obligations of such
Person or any of its Subsidiaries to any seller or any other Person incurred or
assumed in connection with the purchase of real or personal property to be used
in the business of such Person or any of its Subsidiaries within 90 days of such
purchase.
"Qualified Capital Stock" means any Capital Stock that is not Disqualified
Capital Stock or that is not Indebtedness that is convertible or exchangeable
into Capital Stock.
"Reference Date" has the meaning assigned to such term in subsection
6.3(a).
"Refinance" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by Company or any
Subsidiary of Company of Indebtedness Incurred in accordance with subsection 6.1
hereof (other than pursuant to clause (ii), (iv), (v), (vi), (vii), (viii),
(ix), (x), (xi), (xii), (xiii), (xv) or (xvi) of such subsection) and
Indebtedness permitted under subsection 6.1(iii) hereof, in each case that does
not (1) result in an increase in the aggregate principal amount of Indebtedness
of such Person as of the date of such proposed Refinancing (plus the amount of
any premium required to be paid under the terms of the instrument governing such
Indebtedness and plus the amount of reasonable expenses incurred by Company in
connection with such Refinancing) or (2) create Indebtedness with (A) a Weighted
Average Life to Maturity that is less than the Weighted Average Life to Maturity
of the Indebtedness being Refinanced or (B) a final maturity earlier than the
final maturity of the Indebtedness being Refinanced; provided, however, that (x)
if such Indebtedness being Refinanced is Indebtedness solely of Company, then
such Refinancing Indebtedness shall be Indebtedness solely of Company and (y) if
such Indebtedness being Refinanced is subordinate or junior to the Loans and
Notes, then such Refinancing Indebtedness shall be subordinate to the Loans and
Notes at least to the same extent and in the same manner as the Indebtedness
being Refinanced.
"Register" has the meaning set forth in subsection 5.13.
"Registration Rights Agreement" means a registration rights agreement
containing terms and provisions typical for high yield financings and as
specified by subsection 5.15 and such other terms and provisions as are
reasonably satisfactory to Lead Arranger and Company.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Replacement Assets" has the meaning set forth in subsection 2.5A(ii).
"Replacement Lender" shall have the meaning assigned to such term in
subsection 2.9B.
"Replaced Lender" shall have the meaning assigned to such term in
subsection 2.9B.
"Request" has the meaning assigned to such term in subsection 5.11.
"Requisite Lenders" means Lenders having or holding more than 50% of the
sum of the aggregate principal amount of the Notes outstanding; provided,
however, that at any time that CSFB holds more than a majority of the
outstanding principal amount of the Notes, Requisite Lenders shall include
Bankers Trust Corporation in addition to CSFB so long as Bankers Trust
Corporation holds at least 30% of the outstanding principal amount of the Notes.
"Restricted Payment" has the meaning set forth in subsection 6.3(a).
"Revolving Loan Facility" means the revolving loan facility under the
Senior Secured Credit Agreement.
"Sale and Leaseback Transaction" means any direct or indirect arrangement
with any Person or to which any such Person is a party, providing for the
leasing to Company or a Subsidiary of any property, whether owned by Company or
any Subsidiary at the Closing Date or later acquired, which has been or is to be
sold or transferred by Company or such Subsidiary to such Person or to any other
Person from whom funds have been or are to be advanced by such Person on the
security of such Property.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Scheduled Indebtedness" has the meaning set forth in subsection 2.6.
"SEC" has the meaning assigned to such term in subsection 5.1(vii).
"Securities" means any stock, shares, partnership 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.
"Seller" has the meaning assigned to that term in the recitals to the
Agreement.
"Senior Debt" means the principal of, premium, if any, interest (including
any interest accruing subsequent to the filing of a petition of bankruptcy at
the rate provided for in the documentation with respect thereto, whether or not
such interest is an allowed claim under applicable law), fees and expenses on
any Indebtedness of Company, whether outstanding on the Closing Date or
thereafter created, incurred, assumed or guaranteed, unless, in the case of any
particular Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Loans and Notes.
Without limiting the generality of the foregoing, "Senior Debt" shall also
include the principal of, premium, if any, interest (including any interest
accruing subsequent to the filing of a petition of bankruptcy at the rate
provided for in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law) on, and all other amounts
owing in respect of, (x) all obligations of every nature under the Senior
Secured Credit Agreement, including, without limitation, obligations to pay
principal and interest, reimbursement obligations under letters of credit, fees,
expenses and indemnities, (y) all Interest Swap Obligations and (z) all
obligations under Currency Agreements, in each case whether outstanding on the
Closing Date or thereafter incurred. Notwithstanding the foregoing, "Senior
Debt" shall not include (i) any Indebtedness of Company to a Subsidiary of
Company, (ii) Indebtedness to, or guaranteed on behalf of, any director, officer
or employee of either of Company or any of its Subsidiaries (including, without
limitation, amounts owed for compensation), (iii) Indebtedness to trade
creditors and other amounts incurred in connection with obtaining goods,
materials or services, (iv) Indebtedness represented by Disqualified Capital
Stock, (v) any liability for federal, state, local or other taxes owed or owing
by Company, (vi) Indebtedness to the extent incurred in violation of subsection
6.1 hereof, (vii) Indebtedness which, when incurred and without respect to any
election under subsection 1111(b) of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, is without
recourse to Company and (viii) any Indebtedness which is, by its express terms,
subordinated in right of payment to any other Indebtedness of Company.
"Senior Secured Credit Agreement" means the Credit Agreement dated as of
April 1, 1999, among Company, as borrower, the lenders party thereto in their
capacities as lenders thereunder and CSFB, as lead arranger administrative agent
and collateral agent, Bankers Trust Company, as syndication agent, The First
National Bank of Chicago, as co-documentation agent, and Mercantile Bank, N.A.,
as co-documentation agent, together with the related documents thereto
(including, without limitation, any guarantee agreements and security
documents), in each case as such agreements may be amended (including any
amendment and restatement thereof), supplemented, replaced, refinanced or
otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including
increasing the amount of available borrowings thereunder (provided that such
increase in borrowings is permitted by subsection 6.1 hereof) or adding or
deleting Subsidiaries of Company as additional borrowers or guarantors
thereunder) all or any portion of the Indebtedness under such agreement or any
successor or replacement agreement and whether by the same or any other agent,
lender or group of lenders.
"Senior Subordinated Indenture" means an indenture between Company, the
Subsidiary Guarantors and a trustee, in the case of an indenture for Exchange
Notes, containing terms and provisions typical for high yield financings, and
containing the negative covenants applicable to Company and its Subsidiaries
after the Conversion Date, the events of default after the Conversion Date, the
subordination provisions and the subsidiary guarantees substantially similar to
the provisions of Sections 6, 7, 8, and the Senior Subordinated Subsidiary
Guaranty, respectively, and, in the case of an indenture for Take-Out Debt
Securities, subject to subsection 5.11 hereof, containing terms and provisions
typical of the high yield market practice at such time and in light of the
financial condition and prospects of Company (with such changes therein as are
reasonably satisfactory to Take-Out Banks and Company, and, at such time as
notes issued thereunder are sold in a public offering, with other appropriate
changes to reflect such public offering). The bank or trust company acting as
trustee under the Senior Subordinated Indenture shall at all times be a
corporation organized and doing business under the laws of the United States of
America or the State of New York, in good standing and having its principal
offices in the Borough of Manhattan, in The City of New York, which is
authorized under such laws to exercise corporate trust powers and is subject to
supervision or examination by federal or state authority and which has a
combined capital and surplus of not less than $50.0 million.
"Senior Subordinated Subsidiary Guaranty" means the Senior Subordinated
Subsidiary Guaranty executed and delivered by existing Subsidiaries of Company
on the Closing Date and to be executed and delivered by additional Subsidiaries
of Company from time to time thereafter in accordance with subsection 5.8,
substantially in the form of Exhibit X annexed hereto, as such Senior
Subordinated Subsidiary Guaranty may hereafter be amended, supplemented or
otherwise modified from time to time.
"Shelf Registration" shall have the meaning assigned to such term in
subsection 5.15.
"Solvent" means, with respect to any Person, that as of the date of
determination (i) the then fair saleable value of the property of such Person,
including without limitation any rights of subrogation and contribution, 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. 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.
"SPV" has the meaning given to such term in subsection 10.1E.
"Statutory Reserves" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board for Eurocurrency Liabilities (as defined in Regulation
D of the Board). Such reserve percentages shall include those imposed pursuant
to such Regulation D. Eurodollar Rate Loans shall be deemed to constitute
Eurocurrency Liabilities and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D. Statutory Reserves
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Subordinated Indebtedness" means Indebtedness of Company or any Subsidiary
Guarantor which is expressly subordinated in right of payment to the Loans or
the Senior Subordinated Subsidiary Guaranty of such Subsidiary Guarantor, as the
case may be.
"Subsequent Bridge Note" has the meaning assigned to such term in
subsection 2.1D.
"Subsequent Term Note" has the meaning assigned to such term in subsection
2.2E.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof; provided, however, that Diversified NY IPA, Inc. and Diversified
Pharmaceutical Services (Puerto Rico) Inc. shall not be deemed Subsidiaries of
Company for all purposes of this Agreement but shall be deemed Affiliates of
Company.
"Subsidiary Guarantor" means any Subsidiary of Company that executes and
delivers a counterpart of the Senior Subordinated Subsidiary Guaranty on the
Closing Date or from time to time thereafter pursuant to subsection 5.8, but in
any event excluding the Exempt Subsidiaries.
"Surviving Entity" has the meaning assigned to such term in subsection 6.5.
"Take-Out Banks" means Credit Suisse First Boston Corporation ("CSFBC") and
BT Alex. ▇▇▇▇▇ Incorporated and other financial institutions reasonably
acceptable to both Company and CSFBC.
"Take-Out Securities" means any Securities of Company and/or the Subsidiary
Guarantors the proceeds of which are used to repay the Loans, Notes and all
other Obligations in full, which Take-Out Securities shall include, without
limitation, the Demand Take-Out Securities.
"Take-Out Securities Notice" has the meaning assigned to such term in
subsection 5.11.
"Tax" or "Taxes" means 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 one of: 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).
"Ten Year U.S. Treasury Rate" means (i) the rate borne by direct
obligations of the United States maturing on the tenth anniversary of the
Closing Date and (ii) if there are no such obligations, the rate determined by
linear interpolation between the rates borne by the two direct obligations of
the United States maturing closest to, but straddling, the tenth anniversary of
the Closing Date, in each case as published by the Board of Governors of the
Federal Reserve System.
"Term Loan" shall have the meaning assigned to such term in subsection
2.2A.
"Term Loan Commitment" shall have the meaning assigned to such term in
subsection 2.2A.
"Term Loan Facilities" shall mean one or more term loan facilities under
the Senior Secured Credit Agreement.
"Term Notes" has the meaning assigned to such term in subsection 2.2E.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (a) the then outstanding
aggregate principal amount of such Indebtedness into (b) the total of the
products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment.
"Wholly Owned Subsidiary" shall mean a Subsidiary of which securities
(except for directors' qualifying shares) or other ownership interests
representing 100% of the equity or 100% of the ordinary voting power or 100% of
the general partnership interests are, at the time any determination is being
made, owned, controlled or held, directly or indirectly, by Company or one or
more Wholly Owned Subsidiaries.
1.2. Accounting Terms; Utilization of GAAP for Purposes of Calculations
Under Agreement; Fiscal Periods for Determining Compliance and Pricing
A. 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) and (xii) of
subsection 5.1 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 5.1(iv)).
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.
C. The use in any of the Loan Documents 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.
SECTION 2.
AMOUNTS AND TERMS OF LOAN COMMITMENT AND LOANS; NOTES
2.1. Bridge Loan and Bridge Note
A. Bridge Loan Commitment. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Company
herein set forth, the Lenders hereby agree to lend to Company on the Closing
Date $150.0 million in the aggregate (the "Bridge Loan"), each such Lender
committing to lend the amount set forth next to such Lender's name on the
signature pages hereto. The Lenders' commitments to make the Bridge Loan to
Company pursuant to this subsection 2.1A are herein called individually, the
"Bridge Loan Commitment" and collectively, the "Bridge Loan Commitments."
B. Notice of Borrowing. When Company desires to borrow under this
subsection 2.1, it shall deliver to Administrative Agent a Notice of Borrowing
substantially in the form of Exhibit I hereto no later than 11:00 A.M. (New York
time), at least three Eurodollar Business Days in advance of the Closing Date or
such later date as shall be agreed to by Administrative Agent. The Notice of
Borrowing shall specify the applicable date of borrowing (which shall be a
Eurodollar Business Day). Upon receipt of such Notice of Borrowing,
Administrative Agent shall promptly notify each Lender of its share of the
Bridge Loan and the other matters covered by the Notice of Borrowing.
C. Disbursement of Funds.
(i) No later than 12:00 Noon (New York time) on the Closing Date, each
Lender will make available its pro rata share of the Bridge Loan requested to be
made on such date in the manner provided below. All amounts shall be made
available to Administrative Agent in U.S. dollars in immediately available funds
at the Funding and Payment Office and Administrative Agent promptly will make
available to Company by depositing to an account designated by Company at the
Funding and Payment Office the aggregate of the amounts so made available in the
type of funds received. Unless Administrative Agent shall have been notified by
any Lender prior to the Closing Date that such Lender does not intend to make
available to Administrative Agent its portion of the Bridge Loan to be made on
such date, Administrative Agent may assume that such Lender has made such amount
available to Administrative Agent on such date, and Administrative Agent, in
reliance upon such assumption, may (in its sole discretion and without any
obligation to do so) make available to Company a corresponding amount. If such
corresponding amount is not in fact made available to Administrative Agent by
such Lender and Administrative Agent has made available the same to Company,
Administrative Agent shall be entitled to recover such corresponding amount from
such Lender. 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. Administrative Agent shall also be entitled to recover
from the Lender or Company, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by Administrative Agent to Company to the date such corresponding
amount is recovered by Administrative Agent, at a rate per annum equal to (x) if
paid by such Lender, the Federal Funds Effective Rate or (y) if paid by Company,
the then applicable rate of interest on the Loans.
(ii) Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Bridge Loan Commitment hereunder or to prejudice any
rights which Company may have against any Lender as a result of any default by
such Lender hereunder.
D. Bridge Notes. Company shall execute and deliver to each Lender on the
Closing Date a Bridge Note dated the Closing Date substantially in the form of
Exhibit II annexed hereto to evidence the portion of the Bridge Loan made on
such date by such Lender and with appropriate insertions (the "Original Bridge
Notes"). On each interest payment date prior to the Conversion Date on which
Company elects to pay a PIK Interest Amount pursuant to subsection 2.3B, Company
shall execute and deliver to each Lender on such interest payment date a Bridge
Note dated such interest payment date substantially in the form of Exhibit II
annexed hereto in a principal amount equal to such Lender's pro rata portion of
such PIK Interest Amount and with other appropriate insertions (each a
"Subsequent Bridge Note" and, together with the Original Bridge Notes, the
"Bridge Notes"). A Subsequent Bridge Note shall bear interest from the date of
its issuance at the same rate borne by all Bridge Notes.
E. Scheduled Payment of Bridge Loan. Subject to Section 2.2, Company shall
pay in full the outstanding amount of the Bridge Loan and all other Obligations
owing hereunder no later than the Conversion Date unless such Loan is converted
into a Term Loan.
F. Termination of Bridge Loan Commitment. The Bridge Loan Commitment
hereunder shall terminate on June 30, 1999, if the Bridge Loan is not made on or
before such date. Company shall have the right, without premium or penalty, to
reduce or terminate the Bridge Loan Commitment of the Lenders hereunder at any
time.
G. Pro Rata Borrowings. The Bridge Loan made under this Agreement shall be
made by the Lenders pro rata on the basis of their respective Bridge Loan
Commitments. It is understood that no Lender shall be responsible for any
default by any other Lender of its obligation to make its portion of the Bridge
Loan hereunder and that each Lender shall be obligated to make its portion of
the Bridge Loan hereunder, regardless of the failure of any other Lender to
fulfill its commitments hereunder.
2.2. Term Loan and Term Note
A. Term Loan Commitment. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Company
herein set forth, the Lenders hereby agree, on the Conversion Date, upon the
request of Company, to convert the then outstanding principal amount of the
Bridge Notes into a term loan (the "Term Loan"), such Term Loan to be in the
aggregate principal amount of the then outstanding principal amount of the
Bridge Notes. The Lenders' commitments under this subsection 2.2A are herein
called individually, the "Term Loan Commitment" and collectively, the "Term Loan
Commitments."
B. Notice of Conversion/Borrowing. If Company has not repaid the Bridge
Loan in full on or prior to the Conversion Date, then Company shall convert the
then outstanding principal amount of the Bridge Notes into a Term Loan under
this subsection 2.2. Company shall deliver to the Lenders a Notice of Conversion
substantially in the form of Exhibit III annexed hereto no later than 11:00 A.M.
(New York time), at least two Business Days in advance of the Conversion Date.
The Notice of Conversion shall specify the principal amount of the Bridge Notes
outstanding on the Conversion Date to be converted into a Term Loan.
C. Making of Term Loan. Upon satisfaction or waiver of the conditions
precedent specified in subsection 3.2 hereof, each Lender shall extend to
Company the Term Loan to be issued on the Conversion Date by such Lender by
cancelling on its records a corresponding principal amount of the Bridge Notes
held by such Lender.
D. Maturity of Term Loan. The Term Loan shall mature and Company shall pay
in full the outstanding principal amount thereof and accrued interest thereon on
April 1, 2009 (the "Maturity Date").
E. Term Notes. Company, as borrower, shall execute and deliver to each
Lender on the Conversion Date a Term Note dated the Conversion Date
substantially in the form of Exhibit IV annexed hereto to evidence the Term Loan
made on such date, in the principal amount of the Bridge Notes held by such
Lender on such date and with other appropriate insertions (collectively, the
"Original Term Notes"). On or after the Conversion Date, on each interest
payment date on which Company elects to pay a PIK Interest Amount pursuant to
subsection 2.3B, Company shall execute and deliver to each Lender on such
interest payment date a Term Note dated such interest payment date substantially
in the form of Exhibit IV annexed hereto in a principal amount equal to such
Lender's pro rata portion of such PIK Interest Amount and with other appropriate
insertions (each, a "Subsequent Term Note" and, together with the Original Term
Notes, the "Term Notes"). A Subsequent Term Note shall bear interest at the same
rate borne by all Term Notes.
2.3. Interest on the Loans
A. Rate of Interest. The Loans shall bear interest on the unpaid principal
amount thereof from the date made through maturity (whether by prepayment,
acceleration or otherwise) at a rate determined as set forth below.
(i) Floating Rate Loans. Subject to subsection 2.3A(ii), the Loans shall
bear interest at a rate per annum equal to the Applicable Rate plus the
Applicable Spread.
(ii) Fixed Rate Loans. At any time after the Conversion Date, at the
request of any Lender, all or any portion of the Term Loan owing to such Lender
shall bear interest at a rate per annum equal to the Fixed Rate plus the Fixed
Rate Spread, effective as of the first interest payment date with respect to
such Term Loan after such notice so long as the 20 Business Days' notice set
forth below is given; provided that no such conversion shall be permitted in
respect of amounts to be voluntarily prepaid following receipt of a notice of
prepayment pursuant to subsection 2.5A. In order to request the conversion of a
Floating Rate Loan to a Fixed Rate Loan, the Lender shall notify the
Administrative Agent in writing of its intention to do so at least 20 Business
Days prior to an interest payment date indicating the amount of the Term Loan
for which it is requesting conversion to a Fixed Rate Loan, which shall be not
less than $5,000,000 and increments of $500,000 in excess thereof (or, in the
case any Lender holds a Term Loan with an outstanding amount less than
$5,000,000, such remaining amount), and Administrative Agent shall so notify
Company in writing at least 5 Business Days prior to such next succeeding
interest payment date. Upon the conversion of a portion of a Floating Rate Loan
to a Fixed Rate Loan an appropriate notation will be made on the Term Note and,
on and after the first interest payment date following the receipt by Company of
a notice hereunder, such portion of the Term Loan which is converted to a Fixed
Rate Loan shall bear interest at the Fixed Rate plus the Fixed Rate Spread until
repaid in full.
(iii) Notwithstanding clause (i) or (ii) of this subsection 2.3A or any
other provision herein, in no event will the combined sum of interest (cash or
otherwise) on the Loans (other than post-maturity interest pursuant to
subsection 2.3C) exceed 16.00% per annum.
B. Interest Payments. Interest shall be payable (i) with respect to the
Bridge Loans, in arrears on, in the case of Eurodollar Rate Loans, the last day
of each Interest Period, and in the case of Alternate Base Rate Loans, on July
15, 1999, October 15, 1999, and January 15, 2000, and, in the case of all Bridge
Loans, upon any prepayment of the Bridge Loans (to the extent accrued on the
amount being prepaid) and at maturity of the Bridge Loans in respect of any
amounts paid on such date and not converted to Term Loans and (ii) with respect
to the Term Loans, in arrears on, in the case of Eurodollar Rate Loans, the last
day of each Interest Period, and in the case of Alternate Base Rate Loans and
Fixed Rate Loans, on each January 15, April 15, July 15 and October 15 of each
year, commencing on the first of such dates to follow the Conversion Date, and,
in the case of all Term Loans, upon any prepayment of the Term Loans (to the
extent accrued on the amount being prepaid) and at maturity of the Term Loans;
provided, however, that if, on any interest payment date, the interest rate
borne by the Bridge Loans or the Term Loans (other than post-maturity interest
pursuant to subsection 2.3C), as the case may be, exceeds the Maximum Cash
Interest Rate, Company may pay all or a portion of the interest payable in
excess of the amount of interest that would be payable on such date at the
Maximum Cash Interest Rate by issuance of Subsequent Bridge Notes or Subsequent
Term Notes, as the case may be, in an aggregate principal amount equal to the
amount of such interest being so paid (the "PIK Interest Amount").
C. Post-Maturity Interest. Any principal payments on the Loans not paid
when due and, to the extent permitted by applicable law, any interest payment on
the Loans not paid when due, in each case whether at stated maturity, by notice
of prepayment, by acceleration or otherwise, shall thereafter bear interest
payable upon demand at a rate which is 2.00% per annum in excess of the rate of
interest otherwise payable under this Agreement for the Loans.
D. Computation of Interest. Interest on the Loans shall be computed on the
basis of, in the case of Eurodollar Rate Loans, a 360-day year, and in the case
of Alternate Base Rate Loans, a 365 or 366-day year, and, with respect to any
amount of the Loans which are Floating Rate Loans, the actual number of days
elapsed in the period during which it accrues or, with respect to any amount of
the Loans which are Fixed Rate Loans, twelve 30-day months. In computing
interest on the Loans, the date of the making of the Loans shall be included and
the date of payment shall be excluded; provided, however, 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.
E. Interest Periods. In connection with each Eurodollar Rate Loan, Company
may, in the case of the first Interest Period, in the Notice of Borrowing and,
in the case of subsequent Interest Periods upon written notice to Administrative
Agent that is received no later than 11:00 A.M. (New York time) at least three
Eurodollar Business Days in advance of the expiration of the preceding Interest
Period, select an interest period (each an "Interest Period") to be applicable
to such Loan, which Interest Period shall be, at Company's option, either a one,
two or three 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;
(ii) in the case of immediately successive Interest Periods applicable to a
Eurodollar Rate Loan, 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 end on the last
Business Day of a calendar month; and
(v) in the event Company fails to specify an Interest Period for any
Eurodollar Rate Loan in a written notice to Administrative Agent that is
received no later than 11:00 A.M. (New York time) at least three Eurodollar
Business Days in advance of the expiration of the preceding Interest Period,
Company shall be deemed to have selected the same Interest Period as the
immediately preceding Interest Period.
2.4. Fees
Company agrees to pay to Administrative Agent all fees and other
obligations in accordance with, and at the times specified by, the Fee Letter,
except that any fees stated therein to be due and payable upon the exchange of
Bridge Loans for Exchange Notes shall be due and payable on the Conversion Date
based on the principal amount of the Bridge Notes outstanding on the Conversion
Date.
2.5. Prepayments and Payments A. Prepayments
(i) Voluntary Prepayments. Company may, without payment of premium or
penalty, but subject to subsection 2.7D, upon not less than ten days' prior
written or telephonic notice confirmed in writing to Administrative Agent at any
time and from time to time, prepay the Loans made to Company in whole.
Notice of prepayment having been given as aforesaid, the principal amount
of the Loans to be prepaid shall become due and payable on the prepayment date.
Amounts of the Loans so prepaid may not be reborrowed.
(ii) Mandatory Prepayments
(a) Prepayments from Asset Sales. Upon receipt by Company or any Subsidiary
of Company of Net Cash Proceeds of any Asset Sale occurring after the Closing
Date (other than Net Cash Proceeds from the sale or issuance of Capital Stock of
Express Online or Practice Patterns Science which shall be treated as Net
Securities Proceeds under subsection 2.5A(ii)(c)), Company shall, or shall cause
its Subsidiaries to, prepay the Loans with the Net Cash Proceeds received from
such Asset Sale on a date not later than the Business Day next succeeding (i) in
the case the date of consummation of such Asset Sale is prior to the Conversion
Date, the 180th day after the date of consummation of such Asset Sale if and to
the extent that such Net Cash Proceeds are not applied by such date by Company
or its Subsidiaries to either repay any Indebtedness outstanding under the
Senior Secured Credit Agreement or to make an investment in properties and
assets that replace the properties and assets that were the subject of such
Asset Sale or in properties and assets that will be used in the business of
Company and its Subsidiaries as existing on the Closing Date or in businesses
which are similar or related to the businesses of Company as conducted on the
Closing Date ("Replacement Assets") and (ii) in the case the date of
consummation of such Asset Sale is on or after the Conversion Date, the 360th
day after the date of consummation of such Asset Sale if and to the extent that
such Net Cash Proceeds are not applied by such date by Company or its
Subsidiaries to either repay any Indebtedness outstanding under the Senior
Secured Credit Agreement or to make an investment in Replacement Assets;
provided, however, that, to avoid any imposition of any costs pursuant to
subsection 2.7D, in lieu of prepaying the Loans on any such date, Company may
elect not to prepay the Loans by (i) so notifying the Administrative Agent in
writing of such election and (ii) paying such amount of Net Cash Proceeds to
Administrative Agent to be held as Cash collateral for the Obligations and
applied to such prepayment of the Loans at the end of the applicable Interest
Period in accordance with the term of this Agreement. Concurrently with the
consummation of an Asset Sale, Company shall deliver to Administrative Agent an
Officers' Certificate demonstrating the derivation of Net Cash Proceeds from the
gross sales price of such Asset Sale.
(b) Prepayments from Issuances of Take-Out Securities. Concurrently with
the receipt by Company of proceeds from the issuance of Take-Out Securities,
Company shall prepay the Loans in a principal amount equal to the lesser of the
proceeds thereof (net of expenses payable by Company to any Person other than an
affiliate of Company in connection with the issuance thereof) or the aggregate
principal amount of the Notes then outstanding; provided, however, that, to
avoid any imposition of any costs pursuant to subsection 2.7D, in lieu of
prepaying the Loans on any such date, Company may elect not to prepay the Loans
by (i) so notifying the Administrative Agent in writing of such election and
(ii) paying such amount of proceeds from the issuance of such Take-Out
Securities to Administrative Agent to be held as Cash collateral for the
Obligations and applied to such prepayment of the Loans at the end of the
applicable Interest Period in accordance with the terms of this Agreement.
(c) Prepayments from Issuances of Securities. On the first Business Day
following receipt by Company or a Subsidiary of the 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 Securities Proceeds") from the issuance of debt Securities
of Company or such Subsidiary or the issuance or sale of equity Securities of
Company, Express Online or Practice Patterns Science or any other incurrence of
Indebtedness by Company or such Subsidiary, or any other capital contribution to
Company by a holder of Capital Stock of Company, after the Closing Date, other
than Permitted Indebtedness, Company shall prepay the Loans in an aggregate
amount equal to such Net Securities Proceeds; provided, however, that the
foregoing shall not apply to the first $15.0 million of Net Securities Proceeds
in respect of the sale or issuance of Capital Stock of Express Online; provided,
further, however, that, to avoid any imposition of any costs pursuant to
subsection 2.7D, in lieu of prepaying the Loans on any such date, Company may
elect not to prepay the Loans by (i) so notifying the Administrative Agent in
writing of such election and (ii) paying such amount of Net Securities Proceeds
to Administrative Agent to be held as Cash collateral for the Obligations and
applied to such prepayment of the Loans at the end of the applicable Interest
Period in accordance with the terms of this Agreement.
(d) Notice. Company shall notify Administrative Agent of any prepayment to
be made pursuant to this subsection 2.5A(ii) at least two Business Days prior to
such prepayment date (unless shorter notice is satisfactory to the Required
Lenders).
(e) Election to Prepay Prior to End of the Interest Period. Notwithstanding
the provisos of subsections 2.5A(ii)(a)-(c) above, Company may also elect, by
notifying Administrative Agent in writing, to cause the Loans to be prepaid
prior to the end of the Interest Period or Interest Periods referred to therein
(subject to subsection 2.7D). Any amounts held by Administrative Agent pursuant
to the election referred to in such subsections 2.5(A)(ii)(a)-(c) shall be
invested in investments agreed upon by Administrative Agent and Company for the
account of Company, which investments shall mature no later than the end of the
appropriate Interest Period.
(iii) Company's Mandatory Prepayment Obligations; Application of
Prepayments. All prepayments shall include payment of accrued interest on the
principal amount so prepaid and shall be applied to payment of interest before
application to principal and shall not include any prepayment or other premium.
(iv) Mandatory Offer to Purchase Notes.
(a) Upon the occurrence of a Change of Control at any time on or after the
Conversion Date (the date of such occurrence, the "Change of Control Date"), the
Lenders shall have the right to require the repurchase of all of the Notes
pursuant to an offer to purchase (the "Change of Control Offer") at a purchase
price equal to 101% of the aggregate principal amount thereof, plus accrued and
unpaid interest thereon to the date of repurchase.
(b) The notice to Administrative Agent and each Lender shall contain all
instructions and materials necessary to enable the Lenders to tender Notes.
(c) Within 30 days following any Change of Control, Company shall mail a
notice to Administrative Agent and each Lender stating:
(1) the circumstances involving the Change of Control;
(2) that the Change of Control Offer is being made pursuant to this
subsection 2.5A(iv) and that all Notes validly tendered will be accepted for
payment;
(3) the purchase price and the purchase date, which shall be no earlier
than 30 days nor later than 45 days from the date such notice is mailed (the
"Offer Payment Date");
(4) that any Note not tendered will continue to accrue interest;
(5) that any Note accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest after the Offer Payment Date unless Company
shall default in the payment of the repurchase price of the Notes;
(6) that if a Lender elects to have a Note purchased pursuant to the Change
of Control Offer it will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, to Company prior to 5:00 p.m. New York time on the Offer Payment
Date;
(7) that a Lender will be entitled to withdraw its election if Company
receives, not later than 5:00 p.m. New York time on the Business Day preceding
the Offer Payment Date, a telegram, telex, facsimile transmission or letter
setting forth the principal amount of Notes such Lender delivered for purchase,
and a statement that such Lender is withdrawing its election to have such Note
purchased; and
(8) that if Notes are purchased only in part a new Note of the same type
will be issued in principal amount equal to the unpurchased portion of the Notes
surrendered.
(d) On or before the Offer Payment Date, Company shall (i) accept for
payment Notes or portions thereof which are to be purchased in accordance with
the above, and (ii) deposit at the Funding and Payment Office immediately
available funds sufficient to pay the purchase price of all Notes to be
purchased. Administrative Agent shall promptly mail to the Lenders whose Notes
are so accepted payment in an amount equal to the purchase price unless such
payment is prohibited pursuant to Section 8.
(e) Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the purchase
of Notes pursuant to an offer hereunder. To the extent the provisions of any
securities laws or regulations conflict with the provisions under this
subsection, Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section by virtue thereof.
B. Manner and Time of Payment. All payments of principal and interest
hereunder and under the Notes by Company shall be made without defense, set-off
or counterclaim and in same-day funds and delivered to Administrative Agent,
unless otherwise specified, not later than 12:00 noon. (New York time) on the
date due at the Funding and Payment Office for the account of the Lenders; funds
received by Administrative Agent after that time shall be deemed to have been
paid by Company on the next succeeding Business Day. Company hereby authorizes
Administrative Agent to charge its account with Administrative Agent in order to
cause timely payment to be made of all principal, interest and fees due
hereunder (subject to sufficient funds being available in its account for that
purpose).
C. Payments on Non-Business Days. Whenever any payment to be made hereunder
or under the Notes shall be stated to be due on a day which is not a Business
Day, the 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 under the Notes or of the commitment and other fees
hereunder, as the case may be.
D. 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), such Lender will make a notation thereon of all principal payments
previously made thereon and of the date to which interest thereon has been paid
and will notify Company of the name and address of the transferee of that Note;
provided, however, that the failure to make (or any error in the making of) such
a notation or to notify Company of the name and address of such transferee shall
not limit or otherwise affect the obligation of Company hereunder or under such
Notes with respect to the Loans and payments of principal or interest on any
such Note.
E. Application of Payments Under Senior Subordinated Subsidiary Guaranty.
All payments received by Administrative Agent under the Senior Subordinated
Subsidiary Guaranty 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 the Senior Subordinated Guaranty, including reasonable
compensation to Administrative Agent and its agents and counsel, and all
expenses, liabilities and advances made or incurred by Administrative Agent in
connection therewith, all in accordance with the terms of this Agreement and the
Senior Subordinated Subsidiary Guaranty;
(b) thereafter, to the extent of any excess such payments, to the payment
of all other Guarantied Obligations (as defined in the Senior Subordinated
Subsidiary Guaranty) for the ratable benefit of the holders thereof; and
(c) thereafter, to the extent of any excess such payments, to the payment
of the applicable Subsidiary Guarantor or to whosoever may be lawfully entitled
to receive the same or as a court of competent jurisdiction may direct.
2.6. Use of Proceeds
A. Bridge Loan. The proceeds of the Bridge Loan shall be applied by
Company, together with borrowings of $890.0 million under the Senior Secured
Credit Agreement, to (i) pay the consideration for the Acquisition in an
aggregate amount of $700.0 million (subject to adjustment), (ii) refinance the
Indebtedness set forth in Schedule 2.6 hereof (the "Scheduled Indebtedness") in
an amount of approximately $360.0 million, and (iii) pay fees and expenses
related to the Acquisition and Refinancing in the aggregate amount of
approximately $30.0 million.
B. Term Loan. The proceeds of the Term Loan shall be used to cancel any
outstanding amount of Bridge Notes converted to Term Notes on such date.
C. Margin Regulations. No portion of the proceeds of any borrowing under
this Agreement shall be used by Company in any manner which might cause the
borrowing or the application of such proceeds to violate the applicable
requirements of Regulation U, Regulation T or Regulation X of the Board of
Governors of the Federal Reserve System or any other regulation of the Board of
Governors 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.
2.7. Special Provisions Governing Eurodollar Rate Loans
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) each
such Loan shall bear interest at a rate per annum equal to the Alternate Base
Rate in effect from time to time plus the Applicable Spread, less 1.50%, 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 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 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 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 Eurodollar Rate Loans of such Lender shall bear
interest at a rate per annum equal to the Alternate Base Rate in effect from
time to time plus the Applicable Spread, less 1.50% until such notice shall be
withdrawn by the Affected Lender and (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, the Affected Lender shall make such
Loan as an Alternate Base Rate Loan and such Alternate Base Rate Loan shall bear
interest at a rate per annum equal to the Alternate Base Rate in effect from
time to time plus the Applicable Spread, less 1.50%, until such notice shall be
withdrawn by the Affected Lender. 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,
Company shall have the option, subject to the provisions of subsection 2.7D, to
rescind such Notice of Borrowing 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 2.7 shall affect the
obligation of any Lender other than an Affected Lender to make or maintain Loans
as 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, upon written request by that Lender (which
request shall set forth in reasonable detail 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, (ii) if any prepayment (including any prepayment pursuant to
subsection 2.5) or other principal payment or any conversion of any of its
Eurodollar Rate Loans pursuant to subsection 2.7B or 2.7C 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. 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; provided, that such making, carrying
or transferring Eurodollar Rate Loans does not result in any costs or taxes to
Company pursuant to subsection 2.8.
F. Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of
all amounts payable to a Lender under this subsection 2.7 and under subsection
2.8A 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 the definition of 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 2.7 and under subsection 2.8A.
2.8. Increased Costs; Taxes; Capital Adequacy
A. Compensation for Increased Costs and Taxes. Subject to the provisions of
subsection 2.8B (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
(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; provided that
Company shall not be required to compensate a Lender pursuant to this subsection
for any increased cost or reduction incurred more than one year prior to the
date that such Lender notifies Company of such change giving rise to such
increased cost or reduction and of such Lender's intention to claim compensation
therefor; provided further that, if such change giving rise to such increased
cost or reduction is retroactive, then the one year period referred to above
shall be extended to include the period of retroactive effect thereof. 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 2.8A, 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 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 in 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 (in the case of each Lender listed on
the signature pages hereof) or after the date of the Assignment Agreement
pursuant to which such Lender became a Lender (in the case of each other Lender)
affecting 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 not a United States person as defined in Section
7701(a)(30) of the Internal Revenue Code (for purposes of this subsection
2.8B(iii), a "Non-US Lender") shall deliver to Administrative Agent for
transmission to Company, on or prior to the Closing Date (in the case of each
Lender listed on the signature pages hereof) or 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 requested by Company 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.
(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 2.8B(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 requested by Company 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 2.8B(ii) if such Lender shall have
failed to satisfy the requirements of clause (a) or (b)(1) of this subsection
2.8B(iii); provided that if such Lender shall have satisfied the requirements of
subsection 2.8B(iii)(a) on the Closing Date (in the case of each Lender listed
on the signature pages hereof) 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 2.8B(iii)(c) shall relieve Company of its obligation to pay
any additional amounts pursuant to clause (c) of subsection 2.8B(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 2.8B(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 participations therein or other
obligations hereunder with respect to the Loans 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 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; provided that Company shall not be required
to compensate a Lender pursuant to this subsection for any reduction incurred
more than one year prior to the date that such Lender notifies Company of such
change giving rise to such reduction and of such Lender's intention to claim
compensation therefor; provided further that, if such change giving rise to such
reduction is retroactive, then the one year period referred to above shall be
extended to include the period of retroactive effect thereof. 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.
D. Refund and Contest. If Administrative Agent or any Lender receives a
refund with respect to Tax deducted, withheld or paid by Company and with
respect to which Company has been required to and has paid an additional amount
under this subsection 2.8, which in the good faith judgment of such Lender is
allocable to such deduction, withholding or payment, it shall promptly pay such
refund, together with any other amount paid by Company in connection with such
refunded Tax, to Company, net of all out-of-pocket expenses of such Lender
incurred in obtaining such refund, provided, however, that Company agrees to
promptly return such refund to Administrative Agent or the applicable Lender, as
the case may be, if it receives notice from Administrative Agent or applicable
Lender that such Administrative Agent or Lender is required to repay such
refund. Each of Administrative Agent and such Lender agrees that it will contest
such Tax or liabilities paid by Company if Agent or such Lender determines, in
good faith and in its sole discretion, that it would not be materially
disadvantaged or prejudiced as a result of such contest.
2.9. Obligation of Lenders to Mitigate; Replacement
A. Each Lender agrees that, as promptly as practicable after the officer of
such Lender responsible for administering the Loans of such Lender 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 to
receive payments under subsection 2.8, it will, to the extent not inconsistent
with the internal policies of such 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 of such Lender through another
lending office of such Lender, or (ii) take such other measures as such 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 pursuant to
subsection 2.8 would be materially reduced and if, as determined by such Lender
in its sole discretion, the making, issuing, funding or maintaining of such
Commitments or Loans through such other lending office or in accordance with
such other measures, as the case may be, would not otherwise materially
adversely affect such Commitments or Loans or the interests of such Lender;
provided that such Lender will not be obligated to utilize such other lending
office pursuant to this subsection 2.9 unless Company agrees to pay all
reasonable incremental expenses incurred by such Lender as a result of utilizing
such other lending office as described in clause (i) above. A certificate as to
the amount of any such expenses payable by Company pursuant to this subsection
2.9 (setting forth in reasonable detail the basis for requesting such amount)
submitted by such Lender to Company (with a copy to Administrative Agent) shall
be conclusive absent manifest error.
B. Replacement. In the event that (a) any Lender becomes an Affected Lender
or requests compensation under subsection 2.8A or 2.8C, (b) Company is required
to pay any additional amount to any Lender or any governmental authority for the
account of any Lender pursuant to subsection 2.8B, or (c) any Lender defaults in
its obligation to fund Loans hereunder, then Company may, at its sole expense
and effort, if no Default or Event of Default exists, replace such Lender (a
"Replaced Lender") with one or more Eligible Assignees (collectively, the
"Replacement Lender") acceptable to Administrative Agent, provided that (i) at
the time of any replacement pursuant to this subsection 2.9 the Replacement
Lender shall enter into one or more Assignment Agreements pursuant to subsection
10.1B (and with all fees payable pursuant to such subsection 10.1B to be paid by
the Replacement Lender) pursuant to which the Replacement Lender shall acquire
all of the outstanding Loans and Commitments of the Replaced Lender and, in
connection therewith, shall pay to the Replaced Lender in respect thereof an
amount equal to the sum of (A) an amount equal to the principal of, and all
accrued interest on, all outstanding Loans of the Replaced Lender and (B) an
amount equal to all accrued, but theretofore unpaid, fees owing to the Replaced
Lender with respect thereto and (ii) all obligations (including without
limitation all such amounts, if any, owing under subsection 2.7D) of Company
owing to the Replaced Lender (other than those specifically described in clause
(i) above in respect of which the assignment purchase price has been, or is
concurrently being, paid), shall be paid in full to such Replaced Lender
concurrently with such replacement. Upon the execution of the respective
Assignment Agreements and the acceptance thereof by Administrative Agent
pursuant to subsection 10.1B, the payment of amounts referred to in clauses (i)
and (ii) above and, if so requested by the Replacement Lender, delivery to the
Replacement Lender of the appropriate Note or Notes executed by Company, the
Replacement Lender shall become a Lender hereunder and the Replaced Lender shall
cease to constitute a Lender hereunder except with respect to indemnification
provisions under this Agreement which by the terms of this Agreement survive the
termination of this Agreement, which indemnification provisions shall survive as
to such Replaced Lender. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling Company to require such
assignment and delegation cease to apply.
SECTION 3.
CONDITIONS TO LOANS
The obligations of Lenders to make the Loans hereunder are subject to the
satisfaction of the following conditions.
3.1. Conditions to Bridge Loans
The obligations of Lenders to make the Bridge Loans to be made on the
Closing Date are subject to prior or concurrent satisfaction of the following
conditions:
A. Loan Documents. On or before the Closing 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 Closing Date:
(i) Certified copies of the Certificate or Articles of Incorporation of
such Person, together with a good standing certificate from the Secretary of
State of its jurisdiction of incorporation and, to the extent generally
available, a certificate or other evidence of good standing as to payment of any
applicable franchise or similar taxes from the appropriate taxing authority of
such jurisdiction, each dated a recent date prior to the Closing Date;
(ii) Copies of the Bylaws of such Person, certified as of the Closing Date
by such Person's corporate secretary or an assistant secretary;
(iii) Resolutions of the Board of Directors of such Person approving and
authorizing the execution, delivery and performance of the Loan Documents to
which it is a party, certified as of the Closing Date by the corporate secretary
or an assistant secretary 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 the Loan Documents to which it is a party;
(v) Executed originals of the Loan Documents to which such Person is a
party; and
(vi) Such other documents as Administrative Agent may reasonably request.
B. No Material Adverse Effect. Since December 31, 1998, no event or events,
adverse condition or change in or affecting Company or DPS that, individually or
in the aggregate, could reasonably be expected to have a Material Adverse Effect
shall have occurred.
C. Termination of Existing Credit Agreement and Related Liens; Existing
Letters of Credit; Scheduled Indebtedness. On the Closing Date, Company and its
Subsidiaries shall have (or shall direct that the proceeds of the Bridge Loans
made on the Closing Date be applied to) (i) repaid in full all Indebtedness
outstanding under the Existing Credit Agreement; (ii) terminated any commitments
to lend or make other extensions of credit thereunder; (iii) delivered to
Administrative Agent all documents or instruments necessary to release all Liens
securing Indebtedness or other obligations of Company and its Subsidiaries
thereunder; (iv) repaid in full all Scheduled Indebtedness listed on Schedule
2.6 hereto; and (v) delivered to Administrative Agent all documents and
instruments necessary to evidence such repayment.
D. Other Indebtedness. On the Closing Date, other than Indebtedness
outstanding under the Senior Secured Credit Agreement, if any, and this
Agreement, Company and its Subsidiaries shall have outstanding no Indebtedness,
Contingent Obligations or Preferred Stock other than (i) the Indebtedness or
guarantees of Indebtedness aggregating not more than $1.0 million set forth on
Schedule 3.1 and (ii) the Contingent Obligations listed on Schedule 6.1.
E. Solvency Certificate. Agents shall have received a certificate of the
chief financial officer of Company, in his capacity as such, substantially in
the form of Exhibit X and in form and substance satisfactory to Agents,
supporting the conclusions that, after giving effect to the Acquisition, the
Refinancing, the Senior Secured Credit Agreement and the loans to be made
thereunder, this Agreement and the loans to be made hereunder and related
transactions, Company will be Solvent and not be rendered insolvent by the
indebtedness incurred in connection therewith.
F. Evidence of Insurance. Agents shall have received a certificate from
Company's insurance broker or other evidence satisfactory to them that all
insurance required to be maintained pursuant to subsection 5.4 is in full force
and effect.
G. 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 (A) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Senior Vice
President of Administration and General Counsel of Company, and (B) ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special New York counsel for Loan Parties, each in form and
substance reasonably satisfactory to Agents and their counsel, dated as of the
Closing Date and setting forth substantially the matters in the opinions
designated in Exhibits VI-A and VI-B annexed hereto and as to such other matters
as Agents acting on behalf of Lenders may reasonably request and (ii) evidence
satisfactory to Agents that Company has requested such counsel to deliver such
opinions to Lenders.
H. Opinions of Agents' Counsel. Lenders shall have received originally
executed copies of one or more favorable written opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel to Agents, dated as of the Closing Date, substantially in the
form of Exhibit VII annexed hereto and as to such other matters as Agents acting
on behalf of Lenders may reasonably request.
I. Fees. Company shall have paid to Administrative Agent, for distribution
(as appropriate) to Agents and Lenders, the fees payable on the Closing Date
referred to in subsection 2.4.
J. Representations and Warranties; Performance of Agreements. Company shall
have delivered to Agents an Officers' Certificate, in form and substance
satisfactory to Agents, to the effect that the representations and warranties in
Section 4 hereof are true, correct and complete in all material respects on and
as of the Closing 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) and that
Company shall have performed in all material respects all agreements and
satisfied all conditions which this Agreement provides shall be performed or
satisfied by it on or before the Closing Date except as otherwise disclosed to
and agreed to in writing by Agents.
K. Completion of Proceedings. All corporate and other proceedings taken or
to be taken in connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by Agents, acting
on behalf of Lenders, and their counsel shall be satisfactory in form and
substance to Agents and such counsel, and Agents and such counsel shall have
received all such counterpart originals or certified copies of such documents as
Agents may reasonably request.
L. Approval of Acquisition Structure and Documentation. The structure
utilized to consummate the Acquisition and the Stock Purchase Agreement among
SmithKline ▇▇▇▇▇▇▇ Corporation, SmithKline ▇▇▇▇▇▇▇ Intercredit BV and Express
Scripts, Inc. dated as of February 9, 1999 (the "Definitive Acquisition
Documents") shall be in full force and effect, no provision of which shall have
been amended, supplemented, waived or otherwise modified in any material respect
without the prior written consent of Agents, and the Acquisition shall occur
simultaneously with the making of the Bridge Loans under this Agreement.
M. Senior Secured Credit Agreement. The Senior Secured Credit Agreement
shall be in form and substance reasonably satisfactory to Agents, and the Senior
Secured Credit Agreement shall be in full force and effect, no provision of
which shall have been amended, supplemented, waived or otherwise modified in any
material respect without the prior written consent of Agents, no default of
event of default shall have occurred thereunder and Company shall have
concurrently with the making of Loans under this Agreement borrowed gross
proceeds of not less than $890.0 million thereunder on the Closing Date.
N. Certain Approvals and Agreements Relating to the Acquisition. All
governmental and third party approvals necessary or advisable in connection with
the Acquisition, the Refinancing, the financings contemplated thereby and the
continuing operations of the business of Company and its Subsidiaries shall have
been obtained and be in full force and effect, and all applicable waiting
periods shall have expired without any action being taken or threatened by any
competent authority which would restrain, prevent or otherwise impose material
adverse conditions on the Acquisition, the Refinancing or the financing thereof.
O. Financial Information. Company shall have delivered to Agents and the
Lenders: financial statements of each of Company and DPS (including notes
thereto), consisting of (a) audited balance sheets as of the end of each period
in the three fiscal-year period ended December 31, 1998 and a pro forma balance
sheet as of such date, (b) audited consolidated statements of operations and
cash flows for each period in the three fiscal-year period ended December 31,
1998 and a pro forma statement of operations for the most recent fiscal year and
(c) such other financial statements as may be reasonably requested by Agents,
and any supporting documents as shall be reasonably satisfactory to Agents, and
all such financial statements, historical or pro forma, delivered pursuant to
this paragraph (O) shall be in compliance with the requirements of Regulation
S-X for a public offering registered under the Securities Act and shall not be
materially inconsistent with financial statements previously provided to Agents
and Lenders. Administrative Agent shall have received originally executed copies
of a "comfort letter" of PricewaterhouseCoopers LLP, independent public
accountants to Company, covering such matters as Agents acting on behalf of
Lenders may reasonably request.
P. Notice of Borrowing. Administrative Agent shall have received before the
Closing 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, the chief financial officer or the treasurer of Company or by
any executive officer of Company designated by any of the above-described
officers on behalf of Company in a writing delivered to Administrative Agent.
Q. Representations and Warranties; No Default or Event of Default.
(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 the Closing 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 the Notice of Borrowing that
would constitute a Default or Event of Default;
(iii) Each Loan Party shall have performed in all material respects all
agreements and satisfied all conditions which this Agreement provides shall be
performed or satisfied by it on or before the Closing Date; and
(iv) No order, judgment or decree of any court, arbitrator or governmental
authority shall purport to enjoin or restrain any Lender from making the Loans
to be made by it on the Closing Date.
3.2. Conditions to Term Loan
The obligation of the Lenders to make the Term Loan on the Conversion Date
is subject to the prior or concurrent satisfaction or waiver of the following
conditions precedent:
A. The Administrative Agent shall have received in accordance with the
provisions of Section 2.2B an originally executed Notice of Conversion.
B. Company or any of its Subsidiaries shall not be subject to a Bankruptcy
Order or other insolvency proceeding and a Default or Event of Default shall not
be in existence under subsection 7.6, 7.7 or 7.9.
C. No Event of Default or Default (whether matured or not) shall have
occurred and be continuing under subsection 7.1.
D. No Event of Default or Default shall have occurred under subsection 7.2
and be continuing; provided that if an event described in this subsection 3.2D
is continuing at the Conversion Date but 30 days has not passed since the date
of written notice of the commencement of such 30-day period from the holder or
holders of not less than 25% in aggregate principal amount of the Notes then
outstanding (the "Grace Period"), the Conversion Date shall be deferred until
the earlier to occur of (x) the cure of such event or (y) the expiration of such
Grace Period. E. On or prior to the Conversion Date, Administrative Agent shall
have received a form of Senior Subordinated Note Indenture and Registration
Rights Agreement reasonably satisfactory in form and substance to Agents.
F. On the Conversion Date, Administrative Agent shall have received an
Officers' Certificate from Company dated the Conversion Date and reasonably
satisfactory in form and substance to Administrative Agent, to the effect that
the conditions in this subsection 3.2 are satisfied on and as of the Conversion
Date.
G. Company shall have executed and delivered to Administrative Agent on the
Conversion Date for delivery to the Lenders Term Notes dated the Conversion Date
substantially in the form of Exhibit III annexed hereto to evidence the Term
Loan, in the principal amount of (which principal amount shall be the aggregate
principal amount of the Bridge Notes outstanding on the Conversion Date) the
Term Loan and with other appropriate insertions.
H. Company shall have paid any fees owing pursuant to subsection 2.4 in
cash to Administrative Agent.
SECTION 4.
COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make the
Loans and to induce other Lenders to purchase participations therein, Company
represents and warrants to each Lender (both before and after giving effect to
the Acquisition and the transactions in connection therewith), on the date of
this Agreement and the Closing Date, that the following statements are true,
correct and complete:
4.1. Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries
A. Organization and Powers. Each Loan Party is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation as specified in Schedule 4.1 annexed hereto. Each
Loan Party has all requisite corporate 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 Loan Party 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, except in
jurisdictions where the failure to be so qualified or in good standing has not
had and could not reasonably be expected to have a Material Adverse Effect.
C. Conduct of Business. Company and its Subsidiaries are engaged only in
the businesses permitted to be engaged in pursuant to subsection 6.9.
D. Subsidiaries. All of the Subsidiaries of Company are identified in
Schedule 4.1 annexed hereto, as said Schedule 4.1 may be supplemented from time
to time pursuant to the provisions of subsection 5.1(xv). The capital stock of
each of the Subsidiaries of Company identified in Schedule 4.1 annexed hereto
(as so supplemented) is duly authorized, validly issued, fully paid and
nonassessable and is free and clear of all Liens other than Liens securing the
Senior Secured Credit Agreement and Liens permitted hereunder and none of such
capital stock constitutes Margin Stock. Each of the Subsidiaries of Company
identified in Schedule 4.1 annexed hereto (as so supplemented) is a corporation
duly organized, validly existing and in good standing under the laws of its
respective jurisdiction of incorporation set forth therein, has all requisite
corporate 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 power and authority has not had and is not reasonably expected to
have a Material Adverse Effect. Schedule 4.1 annexed hereto (as so supplemented)
correctly sets forth the ownership interest of Company and each of its
Subsidiaries in each of the Subsidiaries of Company identified therein.
4.2. 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 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 and the consummation of the transactions contemplated by the
Loan Documents do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to Company or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws of Company
or any of its Subsidiaries or any order, judgment or decree of any court or
other agency of government binding on Company 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 Company 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 Company or any of its Subsidiaries,
or (iv) require any approval of stockholders or any approval or consent of any
Person under any Contractual Obligation of Company or any of its Subsidiaries,
except for such approvals or consents which will be obtained on or before the
Closing Date and disclosed in writing to Lenders.
C. Governmental Consents. The execution, delivery and performance by Loan
Parties of the Loan Documents and the consummation of the transactions
contemplated by the Loan Documents do not and will 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.
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, subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally or (ii)
general equitable principles (whether considered in a proceeding in equity or at
law) and (iii) an implied covenant of good faith and fair dealing.
4.3. Financial Condition
Company has heretofore delivered to Lenders, at Lenders' request, the
audited financial statements (including balance sheets and statements of
operations, stockholders' equity and cash flows) of Company and its Subsidiaries
for the fiscal year ended December 31, 1998. 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 date thereof and the results of operations and
cash flows (on a consolidated basis) of the entities described therein for the
period then ended. Company does not (and will not immediately following the
funding of the Bridge 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 the notes thereto and which in any such case is material in relation to the
business, operations, properties, assets or financial condition of Company and
its Subsidiaries taken as a whole.
4.4. No Material Adverse Change; No Restricted Payments
Since December 31, 1998, no event or change has occurred that has caused or
evidences, either in any case or in the aggregate, a Material Adverse Effect.
Neither Company nor any of its Subsidiaries has directly or indirectly declared,
ordered, paid or made, or set apart any sum or property for, any Restricted
Payment or agreed to do so except as permitted by subsection 6.3.
4.5. Title to Properties; Liens
Company and its Subsidiaries have (i) good title to (in the case of fee
interests in real property), (ii) valid leasehold interests in (in the case of
leasehold interests in real or personal property), or (iii) good title to (in
the case of all other personal property), all of their respective properties and
assets necessary or useful for the conduct of their business, in each case
except for assets disposed of since the date of the most recent financial
statements received by Administrative Agent in the ordinary course of business
or as otherwise permitted under subsection 6.10 and except where failure to have
such title would not, individually or in the aggregate, have a Material Adverse
Effect. Except as permitted by this Agreement, all such properties and assets
are free and clear of Liens.
4.6. Litigation; Adverse Facts
Except as set forth on Schedule 4.6, there are no actions, suits,
proceedings, arbitrations or governmental investigations (whether or not
purportedly on behalf of Company 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 Company, threatened against or affecting Company or any of its
Subsidiaries or any property, license or registration of Company or any of its
Subsidiaries and that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither Company nor any of its
Subsidiaries (i) is in violation of any applicable laws (including those
involving the licensing or registration relating to the pharmaceutical and
healthcare services provided by Company and its Subsidiaries and Environmental
Laws) that, individually or in the aggregate, could 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, could reasonably be expected to
result in a Material Adverse Effect.
4.7. Payment of Taxes
Except to the extent permitted by subsection 5.3, all tax returns and
reports of Company 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 Company 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,
except (a) for taxes that are being contested in good faith by appropriate
proceedings for which Company or relevant Subsidiary, as applicable, has set
aside on its books adequate reserves in accordance with GAAP or (b) to the
extent that the failure to do so would not reasonably be expected to result in a
Material Adverse Effect. Company knows of no proposed tax assessment against
Company or any of its Subsidiaries which is not being actively contested by
Company 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.
4.8. Performance of Agreements; Materially Adverse Agreements; Material
Contracts
A. Neither Company 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, could not reasonably be expected to have a
Material Adverse Effect.
B. Neither Company 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, could reasonably
be expected to result in a Material Adverse Effect.
C. Schedule 4.8 contains a true, correct and complete list of all the
Material Contracts in effect on the Closing Date. Except as described on
Schedule 4.8, all such Material Contracts are in full force and effect and no
material defaults currently exist thereunder.
4.9. Governmental Regulation; Accreditation
A. Neither Company nor any of its Subsidiaries is subject to regulation as
a "holding company" under the Public Utility Holding Company Act of 1935 or as
an "investment company" under the Investment Company Act of 1940.
B. Company's facilities that provide infusion therapy services are
accredited by the Joint Commission on Accreditation of Healthcare Organizations.
4.10. Securities Activities
Neither Company 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.
4.11. Employee Benefit Plans
A. Except as would not reasonably be expected to result in a Material
Adverse Effect: (i) Company, each of its Subsidiaries and each of their
respective ERISA Affiliates are in compliance with all applicable provisions and
requirements of ERISA and the regulations and published interpretations
thereunder with respect to each Employee Benefit Plan and have performed all
their obligations under each Employee Benefit Plan and (ii) each Pension Plan
which is intended to qualify under Section 401(a) of the Internal Revenue Code
is so qualified.
B. No ERISA Event that would reasonably be expected to result in a Material
Adverse Effect has occurred or is reasonably expected to occur.
C. 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 (excluding for purposes
of such computation any Pension Plans with respect to which assets exceed
benefit liabilities), which if amortized over ten years, would not reasonably be
expected, after considering the financial condition of all of the more closely
related ERISA Affiliates, to result in a Material Adverse Effect.
D. For each Multiemployer Plan as of the most recent valuation date for
which an actuarial report has been received, the potential liability of Company,
its Subsidiaries and their respective ERISA Affiliates for a complete withdrawal
from such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when
aggregated with such potential liability for a complete withdrawal from all
Multiemployer Plans, based on information available pursuant to Section 4221(e)
of ERISA, would not reasonably be expected, after considering the financial
condition of all of the more closely related ERISA Affiliates, to result in a
Material Adverse Effect.
4.12. Certain Fees
Other than certain fees payable to CSFB, Bankers Trust Company or their
respective affiliates, no broker's or finder's fee or commission will be payable
with respect to this Agreement or any of the transactions contemplated hereby,
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.
4.13. Environmental Protection
No event or condition has occurred or is occurring with respect to Company
or any of its Subsidiaries relating to any Environmental Law, that individually
or in the aggregate has had or could reasonably be expected to have a Material
Adverse Effect.
4.14. Employee Matters
There is no strike or work stoppage in existence or threatened involving
Company or any of its Subsidiaries that could reasonably be expected to have a
Material Adverse Effect.
4.15. 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.
4.16. Disclosure
A. No representation or warranty of Company or any of its Subsidiaries
contained in any Loan Document or in any other document, certificate or written
statement furnished to Lenders by or on behalf of Company or any of its
Subsidiaries for use in connection with the transactions contemplated by this
Agreement contains any untrue statement of a material fact or omits to state a
material fact (known to 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 misleading in light of the circumstances in which the same were
made; provided, that no representation is made as to projections or pro forma
financial information except as set forth in the next sentence. Any projections
and pro forma financial information contained in such materials are based upon
good faith estimates and assumptions believed by 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 differ from the projected
results. There are no facts known to 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.
B. No information submitted to Agents and Lenders in their due diligence
investigation is known to Company to contain any untrue statements of material
fact, or omit material facts, which untrue statements or material omissions
could reasonably be determined, when taken as a whole, to be material and
adverse to the business, assets, financial position, operations or results of
operations of DPS and its Subsidiaries, taken as a whole.
4.17. Accuracy of Representations and Warranties in the Definitive
Acquisition Documents
Subject to the qualifications set forth therein, each of the
representations and warranties given by Company to Seller in the Definitive
Acquisition Documents is true and correct in all material respects as of the
date hereof and as of the Closing Date.
4.18. Year 2000 Compliance
Company has (i) initiated a review and assessment of its and its
Subsidiaries' business and operations (including those affected by suppliers and
vendors) that Company believes could be adversely affected by the "Year 2000
Problem" (that is, the risk that computer applications used by Company or
Subsidiaries (or suppliers and vendors) may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any date
after December 31, 1999), (ii) developed a plan and timeline for addressing the
Year 2000 Problem on or before October 31, 1999, and (iii) to date, implemented
that plan substantially in accordance with that timetable. Company believes that
its own computer applications that are material to its or its Subsidiaries'
business and operations will on a timely basis be able to perform properly
date-sensitive functions for all dates before and after January 1, 2000 (that
is, be "Year 2000 compliant") except to the extent that a failure to do so could
not reasonably be expected to have Material Adverse Effect.
SECTION 5.
COMPANY'S AFFIRMATIVE COVENANTS
Company covenants and agrees 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, unless Requisite Lenders shall otherwise give prior
written consent, Company shall perform, and shall cause each of its Subsidiaries
to perform, all covenants in this Section 5.
5.1. Financial Statements and Other Reports
Company 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 and Lenders:
(i) Quarterly Financial: as soon as available and in any event within 45
days after the end of each Fiscal Quarter, (a) the consolidated balance sheets
of Company and its Subsidiaries as at the end of such Fiscal Quarter and the
related consolidated statements of operations, changes in stockholders' equity
and cash flows of Company 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 chief financial officer of Company
that they fairly present, in all material respects, the financial condition of
Company 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 (b) beginning with the
Fiscal Quarter ending September 30, 1999, a statement of operations and any
narrative report for Company and its Subsidiaries as provided to the Board of
Directors of Company and the corresponding figures from the Financial Plan for
the current Fiscal Year, setting forth in comparative form the corresponding
figures for the corresponding periods of the previous Fiscal Year, certified by
the chief financial officer of Company as aforesaid;
(ii) Year-End Financial: as soon as available and in any event within 90
days after the end of each Fiscal Year, (a) the consolidated balance sheets of
Company and its Subsidiaries as at the end of such Fiscal Year and the related
consolidated statements of operations, changes in stockholders' equity and cash
flows of Company 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 chief financial officer of Company that they fairly present, in all material
respects, the financial condition of Company and its Subsidiaries as at the
dates indicated and the results of their operations and their cash flows for the
periods indicated, (b) a statement of operations and any narrative report for
Company and its Subsidiaries as provided to the Board of Directors of Company,
setting forth in comparative form the corresponding figures for the previous
Fiscal Year and the corresponding figures from the Financial Plan for the Fiscal
Year, certified by the chief financial officer of Company as aforesaid, and (c)
in the case of such consolidated financial statements, a report thereon of
PricewaterhouseCoopers LLP or other independent certified public accountants of
recognized national standing selected by Company and satisfactory to
Administrative Agent, which report shall be unqualified, shall express no doubts
about the ability of Company 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
Company 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;
(iii) Officers' and Compliance Certificates: together with each delivery of
the consolidated financial statements of Company and its Subsidiaries pursuant
to subdivisions (i) and (ii) above, (a) an Officers' Certificate of Company
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 Company and its Subsidiaries during
the accounting period covered by such financial statements and that 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 a Default
or an Event of Default, or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and what action Company
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 subsections 6.1, 6.3 and 6.10;
(iv) 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 most recently delivered pursuant to subsection 5.3 or this
subsection 6.1, the consolidated financial statements of Company and its
Subsidiaries delivered pursuant to subdivisions (i), (ii) or (xii) 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 together with the first delivery of financial statements pursuant to
subdivision (i), (ii) or (xii) of this subsection 6.1 following such change, a
written statement of the chief accounting officer or chief financial officer of
Company setting forth the differences which would have resulted if such
financial statements had been prepared without giving effect to such change;
(v) Accountants' Certification: together with each delivery of consolidated
financial statements of Company and its Subsidiaries pursuant to subdivision
(ii) 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 a Default or an Event
of Default 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 Default or 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 (iii) above is not correct or that
the matters set forth in the Compliance Certificates delivered therewith
pursuant to clause (b) of subdivision (iii) above for the applicable Fiscal Year
are not stated in accordance with the terms of this Agreement;
(vi) Accountants' Reports: promptly upon receipt thereof (unless restricted
by applicable professional standards), copies of the annual letter to management
prepared by Company's independent certified public accountants;
(vii) 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 Company to its security holders
or by any Subsidiary of Company to its security holders other than Company or
another Subsidiary of Company, (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 Company or any of its Subsidiaries with any
securities exchange or with the Securities and Exchange Commission ("SEC") or
any governmental or private regulatory authority (other than filings in the
ordinary course of business to maintain Company's licenses and permits), and (c)
all press releases and other statements made available generally by Company or
any of its Subsidiaries to the public concerning material developments in the
business of Company or any of its Subsidiaries;
(viii) Events of Default, Etc.: promptly upon any officer of Company
obtaining knowledge (a) of any condition or event that constitutes an 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
Default or Event of Default, (b) that any Person has given any notice to Company
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 7.2, (c) of
any condition or event that would be required to be disclosed in a current
report filed by Company with the SEC on Form 8-K (Items 1, 2, 3, 4 and 6 of such
Form as in effect on the date hereof) if 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 (including, without limitation, termination or modification of
customer contracts), an Officers' 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 Default, Event
of Default, default, event or condition, and what action Company has taken, is
taking and proposes to take with respect thereto;
(ix) Litigation or Other Proceedings: promptly upon any officer of Company
obtaining knowledge of (a) the institution of any action, suit, proceeding
(whether administrative, judicial or otherwise), governmental investigation or
arbitration against or affecting Company or any of its Subsidiaries or any
property, license or registration of Company or any of its Subsidiaries
(collectively, "Proceedings") not previously disclosed in writing by 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
(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 Company to enable Lenders and their counsel to evaluate
such matters;
(x) ERISA Events: promptly upon becoming aware of the occurrence of or
forthcoming occurrence of any ERISA Event that would reasonably be expected to
result in a Material Adverse Effect, a written notice specifying the nature
thereof, what action Company, 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;
(xi) ERISA Notices: with reasonable promptness, copies of (a) all notices
received by Company, any of its Subsidiaries or any of their respective ERISA
Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event that
would reasonably be expected to result in a Material Adverse Effect; and (b)
copies of such other documents or governmental reports or filings relating to
any Pension Plan as Administrative Agent shall reasonably request;
(xii) Financial Plans: as soon as practicable and in any event no later
than 60 days after the beginning of each Fiscal Year, a consolidated plan and
financial forecast for such Fiscal Year (the "Financial Plan"), including (a)
forecasted consolidated balance sheet and forecasted consolidated statement of
operations and a forecasted consolidated statement of cash flows of Company and
its Subsidiaries for such Fiscal Year, together with an explanation of the
assumptions on which such forecasts are based, (b) forecasted consolidated
statements of operations and cash flows of Company and its Subsidiaries for each
quarter of such Fiscal Year, together with an explanation of the assumptions on
which such forecasts are based, and (c) such other information and projections
as any Lender may reasonably request;
(xiii) 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 insurance coverage maintained as of
the date of such report by Company and its Subsidiaries and all material
insurance coverage planned to be maintained by Company and its Subsidiaries in
the immediately succeeding Fiscal Year;
(xiv) Board of Directors: with reasonable promptness, written notice of any
change in the Board of Directors of Company;
(xv) New Subsidiaries: promptly upon any Person becoming a Subsidiary of
Company, a written notice setting forth with respect to such Person (a) the date
on which such Person became a Subsidiary of Company and (b) all of the data
required to be set forth in Schedule 4.1 annexed hereto with respect to all
Subsidiaries of Company (it being understood that such written notice shall be
deemed to supplement Schedule 5.1 annexed hereto for all purposes of this
Agreement);
(xvi) Licensing, Registration and Accreditation: with reasonable
promptness, information regarding proceedings regarding any licensing,
registration or accreditation of Company or a Subsidiary by or with any
governmental body or the Joint Commission Accreditation of Healthcare
Organizations, if failure to obtain or maintain such license, registration or
accreditation has a reasonable possibility of giving rise to a Material Adverse
Effect; and
(xvii) Other Information: with reasonable promptness, such other
information and data with respect to Company or any of its Subsidiaries as from
time to time may be reasonably requested by any Lender.
5.2. Corporate Existence, Etc.
Except as permitted under subsection 6.5, Company will, and will cause each
of its Subsidiaries to, at all times preserve and keep in full force and effect
its corporate existence and all rights and franchises material to its business;
provided, however, that neither Company nor any of its Subsidiaries shall be
required to preserve any such right or franchise if the Board of Directors of
Company or such Subsidiary shall determine that the preservation thereof is no
longer desirable in the conduct of the business of Company or such Subsidiary,
as the case may be, and that the loss thereof would not have a Material Adverse
Effect.
5.3. Payment of Taxes and Claims; Tax Consolidation
A. Company will, and will cause each of its Subsidiaries to, pay all 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 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 such reserve or other appropriate provision, if
any, as shall be required in conformity with GAAP shall have been made therefor.
B. Company 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 Company or any of its Subsidiaries).
5.4. Maintenance of Properties; Insurance
A. Maintenance of Properties. Company will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in good repair, working
order and condition, ordinary wear and tear excepted, all material properties
used or useful in the business of Company and its Subsidiaries and from time to
time will make or cause to be made all appropriate repairs, renewals and
replacements thereof.
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, business interruption insurance and 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
corporations similarly situated in the industry.
5.5. Inspection Rights; Lender Meeting
A. Inspection Rights. Company shall, and shall cause each of its
Subsidiaries to, permit any authorized representatives designated by
Administrative Agent (on its behalf or on behalf of any Lender), or if an Event
of Default has occurred and is continuing the Lenders, to visit and inspect any
of the properties of Company 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 Company may, if it so chooses,
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.
B. Lender Meeting. Company will, upon the request of Administrative Agent
or Requisite Lenders, participate in a meeting of Agents 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 Company and Administrative Agent) at such time
as may be agreed to by Company and Administrative Agent to discuss topics
including, but not limited to, the current Fiscal Year's Financial Plan and the
outlook and projections for Company for the next two Fiscal Years.
5.6. Compliance With Laws, Etc.
A. Compliance. Company shall comply and operate in compliance, and shall
cause each of its Subsidiaries to comply and to operate in compliance, with the
requirements of all applicable laws, rules, regulations and orders of any
governmental authority (including those involving licensing or registration
relating to the pharmaceutical and healthcare services provided by Company and
its Subsidiaries and Environmental Laws) at all times, noncompliance with which
could reasonably be expected to cause, individually or in the aggregate, a
Material Adverse Effect.
B. Licenses. To the extent not obtained prior to the Closing Date, Company
will obtain all licenses required to conduct the businesses conducted by DPS and
its Subsidiaries at the times required by applicable law, except those that the
failure to obtain which, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.
5.7. Environmental Claims and Violations of Environmental Laws
Except as could not reasonably be expected to cause, individually or in the
aggregate, a Material Adverse Effect, Company shall promptly take, and shall use
best efforts to cause each of its Subsidiaries promptly to take, any and all
actions necessary to (i) cure any violation of applicable Environmental Laws by
Company or its Subsidiaries and (ii) make an appropriate response to any
Environmental Claim against Company or any of its Subsidiaries and discharge any
obligations it may have to any Person thereunder.
5.8. Execution of Senior Subordinated Subsidiary Guaranty by Certain
Subsidiaries and Future Subsidiaries
A. Execution of Senior Subordinated Subsidiary Guaranty. In the event that
any Person becomes a Subsidiary of Company after the date hereof, Company will
promptly notify Agents of that fact and cause such Subsidiary to execute and
deliver to Administrative Agent a counterpart of the Senior Subordinated
Subsidiary Guaranty, and to take all such further actions and execute all such
further documents and instruments as may be necessary to evidence its guaranty
of the Loans hereunder.
B. Subsidiary Charter Documents, Legal Opinions, Etc. Substantially
concurrent with the execution and delivery by a Subsidiary of the Loan Documents
described under subsection 5.8A, Company shall deliver to Administrative Agent,
together with such Loan Documents, (i) 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, to the extent generally available, a certificate or other evidence of good
standing as to payment of any applicable franchise or similar taxes from the
appropriate taxing authority of such jurisdiction, each to be dated a recent
date prior to their delivery to Administrative Agent, (ii) a copy of such
Subsidiary's Bylaws, certified by its corporate secretary or an assistant
secretary as of a recent date prior to their delivery to Administrative Agent,
(iii) a certificate executed by the secretary or an assistant secretary of such
Subsidiary as to (a) 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 (b) the incumbency and signatures of the officers
of such Subsidiary executing such Loan Documents, and (iv) a favorable opinion
of counsel to such Subsidiary, in form and substance 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 as Administrative
Agent may reasonably request, all of the foregoing to be reasonably satisfactory
in form and substance to Administrative Agent and its counsel.
5.9. Year 2000 Compliance
Company will promptly but in no event later than October 31, 1999 notify
Administrative Agent in the event Company discovers or determines that any
computer application (including those of its suppliers and vendors) that is
material to its or its Subsidiaries' business and operations will not be Year
2000 compliant as of January 1, 2000, except to the extent that such failure
could not reasonably be expected to have a Material Adverse Effect.
5.10. Equal Security for Loans and Notes.
If Company or any of its Subsidiaries shall create, assume or suffer to
exist any Lien upon any of their respective property or assets, whether now
owned or hereafter acquired, other than Liens permitted by the provisions of
subsection 6.2, Company shall, at the request of Administrative Agent, make or
cause to be made effective provision whereby the Obligations under this
Agreement will be secured by such Lien equally and ratably with any and all
other Indebtedness thereby secured as long as any such Indebtedness shall be
secured; provided, however, that this covenant shall not be construed as or
deemed to be a consent by the Lenders to any violation of the provisions of
subsection 6.2.
5.11. Take-Out Financing
Company agrees that upon such date (the "Initial Request Date") as Company
receives a request (a "Request") from either the holder or holders of a majority
of the aggregate principal amount of the Bridge Notes then outstanding or any of
the Take-Out Banks at any time prior to the Conversion Date but on or after the
90-day anniversary of the Closing Date, Company will use its reasonable efforts,
to the extent within its power, so that the Take-Out Banks can, as soon as
practicable after such a Request, publicly sell or privately place the Demand
Take-Out Securities. If the Demand Take-Out Securities have not been sold or
privately placed within 90 days of the Initial Request Date, Company agrees that
upon notice by the Take-Out Banks (a "Take-Out Securities Notice"), at any time
and from time to time following the 90-day anniversary of the Initial Request
Date, Company will issue and sell Demand Take-Out Securities upon such terms and
conditions as specified in such notice; provided, however, that for a Take-Out
Securities Notice (i) the cash interest rate (whether floating or fixed), in the
case of Take-Out Debt Securities, and the price per share, in the case of
Take-Out Common Stock and Take-Out Preferred Stock, as applicable, shall be
determined by the Take-Out Banks, in light of then prevailing market conditions
and the financial condition and prospects of Company, but, in the case of
Take-Out Debt Securities, the cash interest rate shall not exceed 14.0% per
annum and the total interest rate shall not exceed 16.0% per annum; (ii)
Company, in its reasonable discretion after consultation with the Take-Out
Banks, shall determine whether the Demand Take-Out Securities shall be Take-Out
Debt Securities, Take-Out Preferred Stock or Take-Out Common Stock and whether
the Demand Take-Out Securities shall be issued through a public offering or a
private placement and, if issued in a private placement, the Demand Take-Out
Securities will be accompanied by customary registration rights for the benefit
of the holders of such Demand Take-Out Securities; (iii) the scheduled final
maturity of any Take-Out Debt Securities shall not be later than the tenth
anniversary of the issuance thereof; (iv) the aggregate principal amount or
aggregate number of shares, as applicable, to be issued by Company shall be
determined by the Take-Out Banks in light of the prevailing market conditions
and the financial condition and prospects of Company; provided, that the
aggregate principal amount or aggregate number of shares of Demand Take-Out
Securities, as applicable, shall not exceed an amount calculated to yield net
proceeds sufficient to repay the Bridge Notes then outstanding in full; and (v)
all other arrangements with respect to the Demand Take-Out Securities shall be
reasonably satisfactory in all respects to the Take-Out Banks and Company in
light of the prevailing market conditions and the financial condition and
prospects of Company.
5.12. Exchange of Term Notes
Company will, on the fifth Business Day following the written request (the
"Exchange Request") of the holder of any Term Note bearing interest as a Fixed
Rate Loan:
A. Execute and deliver, cause each Subsidiary Guarantor to execute and
deliver, and cause a bank or trust company acting as trustee thereunder to
execute and deliver, the Senior Subordinated Indenture, if such Senior
Subordinated Indenture has not previously been executed and delivered;
B. Execute and deliver to such holder or beneficial owner in accordance
with the Senior Subordinated Indenture a note in the form attached to the Senior
Subordinated Indenture (the "Exchange Notes") bearing an interest rate equal to
the Fixed Rate plus the Fixed Rate Spread in exchange for such Term Note dated
the date of the issuance of such Exchange Note, payable to the order of such
holder or owner, as the case may be, in the same principal amount as such Term
Note (or portion thereof) being exchanged, and cause each Subsidiary Guarantor
to endorse its guarantee thereon; and
C. Execute and deliver, and cause each Subsidiary Guarantor to execute and
deliver, to such holder or owner, as the case may be, the Registration Rights
Agreement, if the Registration Rights Agreement has not previously been executed
and delivered or, if the Registration Rights Agreement has previously been
executed and delivered and such holder or owner is not already a party thereto,
permit such holder or owner to become a party thereto.
The Exchange Request shall specify the principal amount of the Term Notes
to be exchanged pursuant to this subsection 5.12 which shall be at least
$5,000,000 and integral multiples of $500,000 in excess thereof (or, in the case
any Lender holds Term Notes with an outstanding amount less than $5,000,000,
such remaining amount). Term Notes delivered to Company under this subsection
5.12 in exchange for Exchange Notes shall be cancelled by Company and the
corresponding amount of the Term Loan deemed repaid and the Exchange Notes shall
be governed by and construed in accordance with the terms of the Senior
Subordinated Indenture.
5.13. Register
Company hereby designates Administrative Agent to serve as Company's agent,
solely for purposes of this subsection 5.13, to maintain a register (the
"Register") on which it will record the Loans made by each of the Lenders and
each repayment in respect of the principal amount of the Loans of each Lender.
Failure to make any such recordation, or any error in such recordation shall not
affect Company's obligations in respect of such Loans. With respect to any
Lender, the transfer of the Commitments of such Lender and the rights to the
principal of, and interest on, any Loan made pursuant to such Commitments shall
not be effective until such transfer is recorded on the Register maintained by
Administrative Agent with respect to ownership of such Commitments and Loans and
prior to such recordation all amounts owing to the transferor with respect to
such Commitments and Loans shall remain owing to the transferor. The
registration of assignment or transfer of all or part of any Commitments and
Loans shall be recorded by Administrative Agent on the Register only upon the
receipt by the Agent of a properly executed and delivered Assignment Agreement
pursuant to subsection 10.1B. Coincident with the delivery of such an Assignment
Agreement to Administrative Agent for acceptance and registration of assignment
or transfer of all or part of a Loan, or as soon thereafter as practicable, the
assigning or transferor Lender shall surrender the Note evidencing such Loan,
and thereupon one or more new Notes of the same type and in the same aggregate
principal amount shall be issued to the assigning or transferor Lender and/or
the new Lender.
5.14. Senior Subordinated Indenture; Etc.
Company and the Subsidiary Guarantors shall, on the date it executes and
delivers the Senior Subordinated Indenture and the Exchange Notes and the
Take-Out Debt Securities (and the guarantees thereof) and the indenture
governing the Take-Out Debt Securities, as the case may be, have the full
corporate power, authority and capacity to do so and to perform all of its
obligations to be performed thereunder; all corporate and other acts, conditions
and things required to be done and performed or to have occurred prior to such
execution and delivery to constitute them as valid and legally binding
obligations of Company and the Subsidiary Guarantors enforceable against Company
and the Subsidiary Guarantors in accordance with their respective terms subject
to (i) the effect of applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws relating to or affecting creditors'
rights generally, (ii) general equitable principles (whether considered in a
proceeding in equity or at law) and (iii) an implied covenant of good faith and
fair dealing, shall have been done and performed and shall have occurred in due
compliance with all applicable laws; on the date of such execution and delivery
by Company and the Subsidiary Guarantors, the Senior Subordinated Indenture and
the Exchange Notes and the Take-Out Debt Securities (and the guarantees thereof)
and the indenture governing the Take-Out Debt Securities shall constitute legal,
valid, binding and unconditional obligations of Company and the Subsidiary
Guarantors, as applicable, enforceable against Company and the Subsidiary
Guarantors in accordance with their respective terms, subject to (i) the effect
of applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws relating to or affecting creditors' rights
generally, (ii) general equitable principles (whether considered in a proceeding
in equity or at law) and (iii) an implied covenant of good faith and fair
dealing.
5.15. Shelf Registration
Company shall, and shall cause the Subsidiary Guarantors to, use their
respective reasonable best efforts to cause a registration statement for an
offering to be made on a continuous basis pursuant to Rule 415 (or any successor
rule) under the Securities Act covering all of the Exchange Notes that may be
issued under the Senior Subordinated Indenture pursuant to subsection 5.12 (the
"Shelf Registration") to be declared effective under the Securities Act on or
prior to the Business Day immediately succeeding the Conversion Date and to keep
the Shelf Registration continuously effective under the Securities Act as
required by the Registration Rights Agreement (whether or not it has been
executed and delivered by the Conversion Date). The Shelf Registration shall be
on Form S-3 or another appropriate form permitting registration of such Exchange
Notes for resale by the holders thereof in any manner or manners that they may
designate (including, without limitation, one or more underwritten offerings.)
Once the Registration Rights Agreement has been executed and delivered, Company
shall, and shall cause the Subsidiary Guarantors to, comply with the terms
thereof as they relate to the Shelf Registration. Company and the Subsidiary
Guarantors shall bear all costs and expenses in connection with complying with
this subsection 5.15.
SECTION 6.
NEGATIVE COVENANTS
Company covenants and agrees that until the satisfaction in full of all
Loans, Notes and other Obligations due under this Agreement it will fully and
timely perform all covenants in this Section 6.
6.1. Indebtedness
Company shall not, nor shall it cause or permit any of its Subsidiaries,
directly or indirectly, to Incur any Indebtedness, except for the following
(clauses (i) through (xvii) being referred to as "Permitted Indebtedness"):
(i) Obligations under the Loan Documents, including the Bridge Notes, Term
Notes and Exchange Notes, and the Take-Out Securities;
(ii) Indebtedness under the Senior Secured Credit Agreement in an aggregate
principal amount at any time outstanding not to exceed (a) under the Term Loan
Facilities, $800.0 million, less any required permanent repayments actually made
thereunder (excluding any such repayment to the extent refinanced and replaced
at the time of payment), and (b) under the Revolving Loan Facility, $300.0
million;
(iii) Indebtedness of Company and its Subsidiaries outstanding on the
Closing Date and described on Schedule 6.1 reduced by the amount of any
scheduled amortization payments or mandatory prepayments when actually paid or
permanent reductions thereon;
(iv) Interest Swap Obligations of Company or any of its Subsidiaries
covering Indebtedness of Company or any of its Subsidiaries and Interest Swap
Obligations of any Subsidiary of Company covering Indebtedness of such
Subsidiary; provided, however, that such Interest Swap Obligations are entered
into to protect Company and its Subsidiaries from fluctuations in interest rates
on Indebtedness permitted to be incurred under this Agreement and not for
speculative purposes and the notional principal amount of such Interest Swap
Obligation does not exceed the principal amount of the Indebtedness to which
such Interest Swap Obligation relates;
(v) Indebtedness under Currency Agreements; provided, however, that such
agreements are designed to protect against fluctuations in currency values and
are entered into in the ordinary course of business and for bona fide (i.e., not
speculative) purposes and that, in the case of Currency Agreements which relate
to Indebtedness, such Currency Agreements do not increase the Indebtedness of
Company and its Subsidiaries outstanding other than as a result of fluctuations
in foreign currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder;
(vi) Indebtedness of a Wholly Owned Subsidiary of Company to Company or to
another Wholly Owned Subsidiary of Company for so long as such Indebtedness is
held by Company or a Wholly Owned Subsidiary of Company in each case subject to
no Lien held by a Person other than Company or a Wholly Owned Subsidiary of
Company; provided, however, that if as of any date any Person other than Company
or a Wholly Owned Subsidiary of Company owns or holds any such Indebtedness or
holds a Lien in respect of such Indebtedness, such date shall be deemed the
incurrence of Indebtedness not constituting Permitted Indebtedness by the issuer
of such Indebtedness;
(vii) Indebtedness of Company to a Wholly Owned Subsidiary of Company for
so long as such Indebtedness is held by a Wholly Owned Subsidiary of Company, in
each case subject to no Lien; provided, however, that (a) any Indebtedness of
Company to any Wholly Owned Subsidiary of Company is unsecured and subordinated
in right of payment, pursuant to a written agreement, to Company's Obligations
under the Loan Documents and (b) if as of any date any Person other than a
Wholly Owned Subsidiary of Company owns or holds any such Indebtedness or any
Person holds a Lien in respect of such Indebtedness, such date shall be deemed
the incurrence of Indebtedness not constituting Permitted Indebtedness by
Company;
(viii) Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently drawn against
insufficient funds in the ordinary course of business; provided, however, that
such Indebtedness is extinguished within five business days of incurrence;
(ix) Indebtedness of Company or any of its Subsidiaries in order to finance
insurance premiums and other Indebtedness represented by letters of credit for
the account of Company or such Subsidiary, as the case may be, in order to
provide security for workers' compensation claims or payment obligations in
connection with self-insurance or similar requirements, all in the ordinary
course of business and so long as such Indebtedness is not an obligation for
money borrowed;
(x) obligations in respect of performance and surety bonds and completion
guarantees provided by Company or any Subsidiary of Company in the ordinary
course of business in accordance with customary industry practice in amount and
for purposes customary in Company's industry and so long as not an obligation
for money borrowed;
(xi) Indebtedness arising from agreements of Company or a Subsidiary of
Company providing for adjustment of purchase price, earn out or other similar
obligations, in each case, incurred or assumed in connection with the
disposition of any business, assets, or a Subsidiary of Company or any of its
Subsidiaries, other than guarantees of Indebtedness incurred by any Person
acquiring all or any portion of such business, assets or Subsidiary for the
purpose of financing such acquisition, provided, however, that the maximum
assumable liability in respect of all such Indebtedness shall at no time exceed
the gross proceeds actually received by Company and its Subsidiaries in
connection with such disposition;
(xii) Capitalized Lease Obligations and Purchase Money Obligations of
Company and its Subsidiaries incurred in the ordinary course of business in an
aggregate principal amount not to exceed (a) $25.0 million at any one time
outstanding prior to the Conversion Date and (b) $40.0 million at any one time
outstanding on and after the Conversion Date;
(xiii) guarantees of Indebtedness permitted to be incurred under this
subsection 6.1;
(xiv) Refinancing Indebtedness;
(xv) Acquired Indebtedness; provided, however, that (i) the aggregate
principal amount thereof does not exceed $10.0 million at any one time
outstanding prior to the Conversion Date and (ii) on and after the Conversion
Date, after giving effect to such incurrence, Company could incur at least $1.00
of additional Indebtedness (other than Permitted Indebtedness) in compliance
with this subsection 6.1;
(xvi) Contingent Obligations of Company and its Subsidiaries; provided,
however, that the maximum aggregate liability, contingent or otherwise, of
Company and its Subsidiaries in respect of all such Contingent Obligations shall
not exceed (a) $10.0 million at any one time outstanding prior to the Conversion
Date and (b) $15.0 million at any one time outstanding on and after the
Conversion Date; and
(xvii) additional Indebtedness of Company and its Subsidiaries in an
aggregate principal amount not to exceed (a) $15.0 million at any one time
outstanding prior to the Conversion Date and (b) $25.0 million at any one time
outstanding on and after the Conversion Date.
Each of the foregoing clauses (i) through (xvii) shall be given independent
effect and Indebtedness which may be incurred pursuant to two or more of the
foregoing clauses shall be incurrable under each such clause at the option of
Company.
In addition to the foregoing, at any time on or after the Conversion Date,
if no Default or Event of Default shall have occurred and be continuing at the
time of or as a consequence of the incurrence of any such Indebtedness, Company
and the Subsidiary Guarantors may Incur Indebtedness if immediately before and
immediately after giving effect to the incurrence of such Indebtedness the
Consolidated Fixed Charge Coverage Ratio of Company would be greater than (i) if
such incurrence is on or prior to April 1, 2001, 2.25 to 1.0, and (ii) if such
incurrence is after April 1, 2001, 2.50 to 1.0.
6.2. Liens
Company shall not, and shall not cause or permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or permit or suffer to exist
any Liens of any kind against or upon any property or assets of Company or any
of its Subsidiaries whether owned on the Closing Date or acquired after the
Closing Date, or any proceeds therefrom, or assign or otherwise convey any right
to receive income or profits therefrom, unless (i) in the case of Liens securing
Indebtedness that is expressly subordinate or junior in right of payment to the
Loans and Notes, the Loans and Notes are secured by a Lien on such property,
assets or proceeds that is senior in priority to such Liens and (ii) in all
other cases, the Loans and Notes are equally and ratably secured, except for (A)
Liens existing as of the Closing Date and described on Schedule 6.2 to the
extent and in the manner such Liens are in effect on the Closing Date and
described on Schedule 6.2; (B) Liens securing the Senior Secured Credit
Agreement; (C) on and after the Conversion Date, Liens securing Senior Debt and
Liens securing Guarantor Senior Debt (as defined in the Senior Subordinated
Subsidiary Guaranty); (D) Liens securing the Loans and Notes; (E) Liens of
Company or a Wholly Owned Subsidiary of Company on assets of any Subsidiary of
Company; (F) Liens securing Refinancing Indebtedness which is incurred to
Refinance any Indebtedness which has been secured by a Lien permitted under this
Agreement and which has been incurred in accordance with the provisions of this
Agreement; provided, however, that such Liens (y) are no less favorable to the
Lenders and are not more favorable to the lienholders with respect to such Liens
than the Liens in respect of the Indebtedness being Refinanced and (z) do not
extend to or cover any property or assets of Company or any of its Subsidiaries
not securing the Indebtedness so Refinanced; and (G) Permitted Liens.
6.3. Restricted Payments
(a) Company shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, (a) declare or pay any dividend or make
any distribution (other than dividends or distributions payable in Qualified
Capital Stock of Company) on or in respect of shares of Company's Capital Stock
to holders of such Capital Stock, (b) purchase, redeem or otherwise acquire or
retire for value any Capital Stock of Company or any warrants, rights or options
to purchase or acquire shares of any class of such Capital Stock, (c) make any
principal payment on, purchase, defease, redeem, prepay or otherwise acquire or
retire for value, prior to any scheduled final maturity, scheduled repayment or
scheduled sinking fund payment, any Subordinated Indebtedness; or (d) make any
Investment (other than Permitted Investments) (each of the foregoing actions set
forth in clauses (a), (b), (c) and (d) being referred to as a "Restricted
Payment") prior to the Conversion Date. In addition, Company shall not, and
shall not cause or permit any of its Subsidiaries to, directly or indirectly,
make any Restricted Payment on and after the Conversion Date, if at the time of
such Restricted Payment or immediately after giving effect thereto, (i) a
Default or an Event of Default shall have occurred and be continuing or (ii)
Company is not able to incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) in compliance with subsection 6.1 of this Agreement
or (iii) the aggregate amount of Restricted Payments (including such proposed
Restricted Payment) made on or after the Conversion Date (the amount expended
for such purposes, if other than in cash, being the fair market value of such
property as determined reasonably and in good faith by the Board of Directors of
Company) shall exceed the sum of: (w) 50% of the cumulative Consolidated Net
Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of
such loss) of Company earned on or after the Conversion Date and through the
last day of the fiscal quarter ending prior to the date the Restricted Payment
occurs (the "Reference Date") (treating such period as a single accounting
period); plus (x) 100% of the aggregate net cash proceeds received by Company
from any Person (other than a Subsidiary of Company) from the issuance and sale
subsequent to the Conversion Date and on or prior to the Reference Date of
Qualified Capital Stock of Company, including the net cash proceeds received by
Company upon the exercise, exchange or conversion of Indebtedness or
Disqualified Capital Stock into Qualified Capital Stock; plus (y) without
duplication of any amounts included in clause (iii)(x) above, 100% of the
aggregate net cash proceeds of any equity contribution received by Company from
a holder of Company's Capital Stock; plus (z) without duplication of amounts
included in clause (iii)(w) above, the amount equal to the net reduction in
Investments (other than Permitted Investments) made by Company or any of its
Subsidiaries on and after the Conversion Date in any Person resulting from
repurchases or redemptions of such Investments by such Person, proceeds realized
by such Person upon the sale of such Investment to a purchaser who is not an
Affiliate of Company and repayments of loans or advances or other transfers of
assets by such Person to Company or any Subsidiary of the Company.
(b) Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph do not prohibit: (1) the payment of any dividend
within 60 days after the date of declaration of such dividend if the dividend
would have been permitted on the date of declaration; (2) if no Default or Event
of Default shall have occurred and be continuing or would result therefrom, the
acquisition of any shares of Capital Stock of Company, either (i) solely in
exchange for shares of Qualified Capital Stock of Company or (ii) through the
application of net proceeds of a substantially concurrent sale for cash (other
than to a Subsidiary of Company) of shares of Qualified Capital Stock of
Company; provided, however, that any such net cash proceeds are excluded from
clause (iii)(x) of paragraph (a) above; (3) if no Default or Event of Default
shall have occurred and be continuing or would result therefrom, the acquisition
of any Subordinated Indebtedness, either (i) solely in exchange for shares of
Qualified Capital Stock of Company or (ii) through the application of net
proceeds of a substantially concurrent sale for cash (other than to a Subsidiary
of Company) of shares of Qualified Capital Stock of Company; provided, however,
that any such net cash proceeds are excluded from clause (iii)(x) of paragraph
(a) above; (4) if no Default or Event of Default shall have occurred and be
continuing or would result therefrom, repurchases by Company of Common Stock of
Company from employees of Company or any of its Subsidiaries or their authorized
representatives upon the death, disability or termination of employment of such
employees, in an amount not to exceed (i) $5.0 million prior to the Conversion
Date and (ii) $5.0 million in any calendar year and $10.0 million in the
aggregate on and after the Conversion Date, plus the aggregate cash proceeds
from any reissuance during such calendar year of Common Stock by Company to
employees, officers or directors of Company and its Subsidiaries (without
duplication of amounts included in clause (iii)(x) of paragraph (a) above); and
(5) if no Default or Event of Default shall have occurred and be continuing or
would result therefrom, Investments by Company and its Subsidiaries in an
aggregate amount outstanding (i) at any time prior to the Conversion Date not
exceeding $10.0 million and (ii) at any time on and after the Conversion Date
not exceeding $40.0 million. In determining the aggregate amount of Restricted
Payments made on or after the Conversion Date in accordance with clause (iii) of
the second sentence in paragraph (a) above, amounts expended pursuant to clauses
(1), (2)(ii), (3)(ii), (4) and (5) shall be included in such calculation
(whether or not such amounts were expended prior to or on and after the
Conversion Date).
Not later than the date of making any Restricted Payment, Company shall
deliver to Administrative Agent an Officers' Certificate stating that such
Restricted Payment complies with this Agreement and setting forth in reasonable
detail the basis upon which the required calculations were computed, which
calculations may be based upon Company's latest available internal quarterly
financial statements.
6.4. Senior Subordinated Indebtedness
Neither Company nor any Subsidiary Guarantor shall, directly or indirectly,
Incur any Indebtedness (other than pursuant to the Loan Documents, the Exchange
Notes, the Take-Out Securities and Indebtedness between Company and its Wholly
Owned Subsidiaries) that by its terms (or by the terms of any agreement
governing such Indebtedness) is subordinated in right of payment to any other
Indebtedness of Company or such Subsidiary Guarantor, as the case may be, unless
such Indebtedness is also by its terms (or by the terms of any agreement
governing such Indebtedness) made expressly subordinate to the Loans and the
Notes and the Senior Subordinated Subsidiary Guaranties, as the case may be, to
the same extent and in the same manner as such Loans, Notes and Senior
Subordinated Subsidiary Guaranties, as the case may be, are subordinated to the
Senior Secured Credit Agreement.
6.5. Restriction on Fundamental Changes
A. Company shall not, in a single transaction or series of related
transactions, consolidate or merge with or into any Person, or sell, assign,
transfer, lease, convey or otherwise dispose of (or cause or permit any
Subsidiary of Company to sell, assign, transfer, lease, convey or otherwise
dispose of) all or substantially all of Company's assets (determined on a
consolidated basis for Company and Company's Subsidiaries) whether as an
entirety or substantially as an entirety to any Person unless: (i) either (1)
Company shall be the surviving or continuing corporation or (2) the Person (if
other than Company) formed by such consolidation or into which Company is merged
or the Person which acquires by sale, assignment, transfer, lease, conveyance or
other disposition the properties and assets of Company and of Company's
Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall be
a corporation organized and validly existing under the laws the United States or
any State thereof or the District of Columbia and (y) shall expressly assume, by
supplemental agreement (in form and substance satisfactory to Administrative
Agent), executed and delivered to Administrative Agent, the due and punctual
payment of the principal of, and premium, if any, and interest on all of the
Loans and Notes and the performance of every covenant herein and the payment of
any other Obligations; (ii) immediately after giving effect to such transaction
and the assumption contemplated by clause (i)(2)(y) above (including giving
effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to
be incurred in connection with or in respect of such transaction), Company or
such Surviving Entity, as the case may be, shall be able to incur at least $1.00
of additional Indebtedness (other than Permitted Indebtedness) pursuant to
Section 6.1 of this Agreement; (iii) immediately before and immediately after
giving effect to such transaction and the assumption contemplated by clause
(i)(2)(y) above (including, without limitation, giving effect to any
Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred
and any Lien granted in connection with or in respect of the transaction), no
Default or Event of Default shall have occurred and be continuing; and (iv)
Company or the Surviving Entity shall have delivered to Administrative Agent an
Officers' Certificate and an opinion of counsel, each stating that such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition, and if a supplemental agreement is required in connection with such
transaction, such supplemental agreement, comply with the applicable provisions
of this Agreement and that all conditions precedent in this Agreement relating
to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Subsidiaries of
Company, the Capital Stock of which constitutes all or substantially all of the
properties and assets of Company, shall be deemed to be the transfer of all or
substantially all of the properties and assets of Company.
B. Company shall not permit any Subsidiary Guarantor (other than any
Subsidiary Guarantor whose guarantee under the Senior Subordinated Subsidiary
Guaranty is to be released in accordance with the terms of this Agreement) to
consolidate with or merge with or into any Person other than Company or any
other Subsidiary Guarantor unless: (i) the entity formed by or surviving any
such consolidation or merger (if other than the Subsidiary Guarantor) or to
which such sale, lease, conveyance or other disposition shall have been made is
a corporation organized and existing under the laws of the United States or any
State thereof or the District of Columbia; (ii) such entity assumes all of the
obligations of the Subsidiary Guarantor under its guarantee under the Senior
Subordinated Subsidiary Guaranty and the performance of every covenant in the
Senior Subordinated Subsidiary Guaranty to be performed or observed; and (iii)
the conditions in clause (iii) of subsection 6.5A (with references therein to
clause (i)(2)(y) being deemed to be references to clause (ii) of this paragraph)
shall have been satisfied.
6.6. Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries
Company shall not, and shall not cause or permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or permit to exist or
become effective any encumbrance or restriction on the ability of any Subsidiary
of Company to (a) pay dividends or make any other distributions on or in respect
of its Capital Stock; (b) make loans or advances or to pay any Indebtedness or
other obligation owed to Company or any other Subsidiary of Company; or (c)
transfer any of its property or assets to Company or any other Subsidiary of
Company, except for such encumbrances or restrictions existing under or by
reason of: (1) applicable law; (2) the Loan Documents, the Senior Subordinated
Indenture, the Take-Out Securities, the Exchange Notes or the Senior Secured
Credit Agreement, in each case to the extent incurred in accordance with this
Agreement; (3) customary non-assignment provisions of any contract or any lease
governing a leasehold interest of any Subsidiary of Company; (4) any instrument
governing Acquired Indebtedness, which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person or the properties or assets of the Person so acquired; (5) agreements
existing on the Closing Date to the extent and in the manner such agreements are
in effect on the Closing Date; (6) any restriction or encumbrance contained in
contracts for sale of assets permitted by this Agreement in respect of the
assets being sold pursuant to such contracts pending the close of such sale,
which encumbrance or restriction is not applicable to any asset other than the
asset being sold pursuant to such contract; (7) Purchase Money Obligations to
the extent permitted to the incurred hereunder for property acquired in the
ordinary course of business that impose restrictions of the nature described in
clause (c) above on the property so acquired; (8) restrictions of the nature
described in clause (c) above on the transfer of assets subject to any Lien to
the extent permitted to be incurred hereunder imposed by the holder of such
Lien; or (9) an agreement governing Indebtedness incurred to Refinance the
Indebtedness issued, assumed or incurred pursuant to an agreement referred to in
clause (2), (4) or (5) above; provided, however, that the provisions relating to
such encumbrance or restriction contained in any such Indebtedness are no less
favorable to Company in any material respect as determined by the Board of
Directors of Company in their reasonable and good faith judgment than the
provisions relating to such encumbrance or restriction contained in agreements
referred to in such clause (2), (4) or (5).
6.7. Transactions with Stockholders and Affiliates
(a) Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, enter into or permit to exist any transaction or series
of related transactions (including, without limitation, the purchase, sale,
lease or exchange of any property or the rendering of any service) with, or for
the benefit of, any of its Affiliates (each an "Affiliate Transaction"), other
than (x) Affiliate Transactions permitted under paragraph (b) below and (y)
Affiliate Transactions on terms that are no less favorable than those that might
reasonably have been obtained in a comparable transaction at such time on an
arm's-length basis from a Person that is not an Affiliate of Company or such
Subsidiary. All Affiliate Transactions (and each series of related Affiliate
Transactions) other than that permitted under clause (b) below involving
aggregate payments or other property with a fair market value in excess of $5.0
million shall be approved by the disinterested members of the Board of Directors
of Company or such Subsidiary, as the case may be, such approval to be evidenced
by a Board Resolution filed with Administrative Agent stating that such Board of
Directors has determined that such transaction complies with the foregoing
provisions. If Company or any Subsidiary of Company enters into an Affiliate
Transaction (or a series of related Affiliate Transactions) other than that
permitted under clause (b) below that involves an aggregate fair market value of
more than $10.0 million Company or such Subsidiary, as the case may be, shall,
prior to the consummation thereof, obtain a favorable opinion as to the fairness
of such transaction or series of related transactions to Company or the relevant
Subsidiary, as the case may be, from a financial point of view, from an
Independent Financial Advisor and file the same with Administrative Agent.
(b) The restrictions set forth in clause (a) shall not apply to (i)
reasonable fees and compensation paid to and indemnity provided on behalf of,
officers, directors, employees, agents or consultants of Company or any
Subsidiaries of Company as determined in good faith by Company's Board of
Directors; (ii) transactions exclusively between or among Company and any of the
Wholly Owned Subsidiaries of Company or exclusively between or among any of the
Wholly Owned Subsidiaries of Company; provided, however, that such transactions
are not otherwise prohibited by this Agreement; (iii) any agreement as in effect
as of the Closing Date or any amendment thereto or any transaction contemplated
thereby (including pursuant to any amendment thereto) in any replacement
agreement thereto so long as any such amendment or replacement agreement is not
more disadvantageous to Company or its Subsidiaries, as the case may be, in any
material respect than the original agreement as in effect on the Closing Date;
(iv) Restricted Payments permitted by this Agreement; (v) any issuance of
securities or other payments, awards or grants in cash, securities or otherwise
pursuant to, or the funding of, employment arrangements, stock options and stock
ownership plans of Company entered into in the ordinary course of business and
approved by the Board of Directors; and (vi) loans and advances to employees and
officers of Company and its Subsidiaries in the ordinary course of business for
bona fide business purposes not in excess of $2.0 million at any time
outstanding.
6.8. Subsidiary Stock
Except for (a) any sale of 100% of the Capital Stock or other equity
securities of any of Company's Subsidiaries otherwise in compliance with the
provisions of this Agreement, (b) the disposition prior to the Conversion Date
of up to 49% of Company's interest in PPS or Express Online otherwise in
compliance with the provisions of this Agreement, (c) the disposition on and
after the Conversion Date of up to 50% of Company's interest in PPS, and (d) the
disposition on and after the Conversion Date of some or all of Company's
interest in Express Online (provided that Company shall always retain the right
to regain in the future a majority interest in the combined voting power of all
securities of Express Online), Company shall not directly or indirectly sell,
assign, pledge or otherwise encumber or dispose of any shares of Capital Stock
or other equity securities of any of its Subsidiaries and shall not permit any
of its Subsidiaries to directly or indirectly issue, sell, assign, pledge or
otherwise dispose of any shares of Capital Stock or other equity securities of
it or any of its Subsidiaries, except (i) to qualify directors if required by
applicable law, (ii) to Company or to a Wholly Owned Subsidiary of Company, and
(iii) Liens in favor of the lenders under the Senior Secured Credit Agreement.
Company shall not permit any Subsidiary of Company to issue or sell any shares
of Preferred Stock of such Subsidiary other than to Company or Wholly Owned
Subsidiary of Company.
6.9. Business Activities
From and after the Closing Date, Company shall not, and shall not permit
any of its Subsidiaries to, engage in any business other than (i) the business
engaged in by Company and its Subsidiaries on the Closing Date and similar or
related businesses and (ii) such other lines of business as may be consented to
by the Requisite Lenders.
6.10. Asset Sales
Company shall not, nor shall it cause or permit any of its Subsidiaries to,
directly or indirectly, consummate any Asset Sale unless (1) the aggregate of
all Asset Sales prior to the Conversion Date (other than dispositions permitted
by subsection 6.8(b)) does not exceed $10.0 million, (2) Company or such
Subsidiary, as the case may be, receives consideration therefor at the time
thereof at least equal to the fair market value at the time of such Asset Sale
of the property, assets or stock that is the subject of such Asset Sale, (3) at
least 75% of the consideration received therefor by Company or such Subsidiary
is in the form of cash or Cash Equivalents, and (4) all of the Net Cash Proceeds
in respect thereof are applied by Company or a Subsidiary of Company in
accordance with subsection 2.5A(ii)(a).
6.11. Amendments or Waivers of Certain Documents
Company shall not, nor shall it cause or permit any of its Subsidiaries to,
directly or indirectly, enter into any amendment, modification, supplement or
waiver with respect to the Senior Secured Credit Agreement as in effect on the
Closing Date that would modify any of the provisions thereof or any of the
definitions relating to the provisions thereof in respect of issuances of the
Term Notes or the Exchange Notes or in respect of Company's ability to incur
Indebtedness in an amount sufficient to repay in full the Obligations and the
application of the proceeds therefrom to repay in full the Obligations in a
manner adverse to the Lenders.
6.12. Amendments to Charter Documents
Company shall not, nor shall it cause or permit any of its Subsidiaries to,
amend its certificate of incorporation or bylaws in any respect which could be
materially adverse to the interests of the Lenders.
SECTION 7.
EVENTS OF DEFAULT
If any of the following conditions or events ("Events of Default") shall
occur:
7.1. Failure To Make Payments When Due
Failure to pay any installment of principal of the Loans when due, whether
at stated maturity, by acceleration, by notice of prepayment or otherwise
(whether or not such payment is prohibited by Section 8); or failure to pay any
interest on the Loans or any other amount due under this Agreement within (A)
prior to the time the Term Loans shall accrue interest as a Fixed Rate Loan, ten
days or more after the date due (whether or not such payment is prohibited by
Section 8) or (B) on and after the such time as the Term Loans shall accrue
interest as a Fixed Rate Loan, 30 days after the date due (whether or not such
payment is prohibited by Section 8); or
7.2 Default in Other Agreements
Failure of Company or any of its Subsidiaries to pay at final maturity any
principal on one or more issues of Indebtedness or Contingent Obligations of the
Company or of any of its Subsidiaries (other than Indebtedness referred to in
subsection 7.1) after any applicable grace period or a breach or default by the
Company or any of its Subsidiaries with respect to any other term of any one or
more issues of Indebtedness or Contingent Obligations of the Company or of any
of its Subsidiaries or any agreement or instrument evidencing or securing such
Indebtedness or Contingent Obligations and such default or breach results in the
acceleration of that Indebtedness or Contingent Obligation prior to its stated
maturity and, in each case, the principal amount of such Indebtedness or
Contingent Obligation and all other such Indebtedness or Contingent Obligations
of the Company and its Subsidiaries in respect of which there is a failure to
pay principal or which has been so accelerated equals $15.0 million or more; or
7.3. Breach of Certain Covenants
Failure of Company to perform or comply with any term or condition
contained in subsections 2.5A(ii), 2.5A(iv), 5.1(viii), 5.2 (with respect to
corporate existence) or 6.5 of this Agreement; or
7.4. Breach of Warranty
Any representation, warranty, certification or other statement made by
Company or any of its Subsidiaries in any Loan Document or in any statement or
certificate at any time given by Company or any of its Subsidiaries 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
7.5. 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 referred to in any other subsection of this Section 7, and such
default shall not have been remedied or waived within 30 days after the date of
written notice from the holder or holders of not less than 25% in aggregate
principal amount of the Loans then outstanding of such default; or
7.6. 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 Company 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 within 60 days of the entry thereof; or any other similar
relief shall be granted under any applicable federal or state law; or (ii) an
involuntary case shall be commenced against Company 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 Company 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
Company 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 Company 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
7.7. Voluntary Bankruptcy; Appointment of Receiver, Etc.
(i) Company 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 Company or any of its Subsidiaries shall make any
assignment for the benefit of creditors; or (ii) Company 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 Company 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
7.8. Judgments and Attachments
Any money judgment, writ or warrant of attachment or similar process
involving in any individual case or in the aggregate an amount in excess of
$15.0 million (in either case not adequately covered by insurance as to which a
solvent and unaffiliated insurance company has acknowledged coverage) shall be
entered or filed against Company 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
7.9. Dissolution
Any order, judgment or decree shall be entered against Company or any
Subsidiary decreeing the dissolution or split up of Company or such Subsidiary
and such order shall remain undischarged or unstayed for a period in excess of
60 days; or
7.10. Change in Control
A Change of Control shall have occurred prior to the Conversion Date.
7.11. Invalidity of Senior Subordinated Subsidiary Guaranty; Repudiation of
Obligations
At any time after the execution and delivery thereof, (i) the Senior
Subordinated Subsidiary Guaranty for any reason, other than the satisfaction in
full of all Obligations, 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, or (ii)
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.
7.12. Failure to Consummate the Acquisition
If Company fails to consummate the Acquisition by the close of business on
the Closing Date, regardless of fault on the part of Company pursuant to the
Definitive Acquisition Documents.
Then (i) upon the occurrence of any Event of Default described in
subsection 7.6 or 7.7, each of (a) the unpaid principal amount of and accrued
interest on the Loans and (b) 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 Company,
and the obligation of each Lender to make any Loan 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) and (b) above to be, and
the same shall forthwith become, immediately due and payable, and the obligation
of each Lender to make any Loan hereunder shall thereupon terminate.
Notwithstanding anything contained in the 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 Defaults (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 consequences; but such action shall
not affect any subsequent Event of Default or 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 Company, and such
provisions shall not at any time be construed so as to grant Company the right
to require Lenders to rescind or annul any acceleration hereunder or to preclude
Agents 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.
SECTION 8
SUBORDINATION
8.1 Obligations Subordinated to Senior Debt of Company
The Lenders covenant and agree that payments of the Obligations by Company
shall be subordinated in accordance with the provisions of this Section 8 to the
prior payment in full, in cash or Cash Equivalents of all amounts payable in
respect of Senior Debt of Company, whether now outstanding or hereafter created
(including any interest accruing subsequent to an event specified in subsection
7.6 or 7.7 whether or not such interest is an allowed claim against Company),
that the subordination is for the benefit of the holders of Senior Debt of
Company, and that each holder of Senior Debt of Company whether now outstanding
or hereafter created, incurred, assumed or guaranteed shall be deemed to have
acquired Senior Debt of Company in reliance upon the covenants and provisions
contained in this Agreement.
8.2 Priority and Payment Over of Proceeds in Certain Events
A. Subordination on Dissolution, Liquidation or Reorganization of Company.
Upon any payment or distribution of assets or securities of Company of any kind
or character, whether in cash, property or securities, upon any dissolution or
winding up or total or partial liquidation or reorganization of Company, whether
voluntary or involuntary or in bankruptcy, insolvency, receivership or other
proceedings, all Senior Debt of Company (including any interest accruing
subsequent to an event specified in subsection 7.6 or 7.7 whether or not such
interest is an allowed claim enforceable against Company) shall first be paid in
full in cash or Cash Equivalents before the Lenders shall be entitled to receive
any payment by Company of any Obligations and upon any such dissolution or
winding up or liquidation or reorganization, any payment or distribution of
assets or securities of Company of any kind or character, whether in cash,
property or securities, to which the Lenders would be entitled except for the
provisions of this Section 8 shall be made by Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, directly to the holders of the Senior Debt of Company
or their representatives to the extent necessary to pay all of the Senior Debt
of Company to the holders of such Senior Debt of Company.
B. Subordination on Default on Designated Senior Debt. Upon the maturity of
any Designated Senior Debt of Company by lapse of time, acceleration or
otherwise, all Designated Senior Debt then due and payable shall first be paid
in full in cash or Cash Equivalents before any payment is made by Company or any
Person acting on behalf of Company with respect to the Obligations. No direct or
indirect payment by Company or any Person acting on behalf of Company of any
Obligations whether pursuant to the terms of the Loans or upon acceleration or
otherwise shall be made, if at the time of such payment, there exists a default
(as defined in the document governing any Designated Senior Debt of Company) in
the payment of all or any portion of any Designated Senior Debt of Company and
such default shall not have been cured or waived or the benefits of this
sentence waived by or on behalf of the holders of such Designated Senior Debt
unless such Designated Senior Debt has been discharged or paid in full in cash
or Cash Equivalents in accordance with its terms. In addition, during the
continuation of any other default with respect to Designated Senior Debt of
Company pursuant to which the maturity thereof may be accelerated, upon the
receipt by Administrative Agent of written notice from the agent or
representative of the holders of such Designated Senior Debt, no such payment
may be made by Company upon or in respect of the Obligations, for a period
("Payment Blockage Period") commencing on the date of receipt of such notice and
ending on the earlier to occur of (i) 179 days after receipt of such notice
(unless such Payment Blockage Period shall be terminated by written notice to
Administrative Agent from such agent or representative) has elapsed, (ii) such
default has been cured or waived or has ceased to exist or (iii) such Designated
Senior Debt has been discharged or paid in full in Cash or Cash Equivalents in
accordance with its terms. Notwithstanding anything herein to the contrary, (x)
in no event will a Payment Blockage Period or successive Payment Blockage
Periods with respect to the same payment on the Obligations extend beyond 179
days from the date the payment on the Obligations was due and (y) only one such
Payment Blockage Period may be commenced within any 360 consecutive days. For
all purposes of this subsection 8.2B, no default which existed or was continuing
on the date of the commencement of any Payment Blockage Period with respect to
the Designated Senior Debt of Company initiating such Payment Blockage Period
shall be, or be made, the basis for the commencement of a second Payment
Blockage Period by the holders or by the agent or other representative of such
Designated Senior Debt whether or not within a period of 365 consecutive days,
unless such event of default shall have been cured or waived for a period of not
less than 90 consecutive days.
C. Rights and Obligations of the Lenders. In the event that,
notwithstanding the foregoing provisions prohibiting such payment or
distribution, Administrative Agent or any Lender shall have received any payment
on account of any Obligation at a time when such payment is prohibited by this
subsection 8.2, then and in such event such payment or distribution shall be
received and held in trust for the holders of the Senior Debt of Company and
shall be paid over or delivered to the holders of the Senior Debt of Company
remaining unpaid to the extent necessary to pay in full in cash or Cash
Equivalents all Senior Debt of Company in accordance with their terms after
giving effect to any concurrent payment or distribution to the holders of such
Senior Debt of Company.
If payment of the Obligations is accelerated because of an Event of
Default, Company shall promptly notify the agent or other representatives for
Senior Debt of Company of the acceleration.
Upon any payment or distribution of assets or securities referred to in
this Section 8, the Lenders and Administrative Agent (notwithstanding any other
provision of this Agreement) shall be entitled to rely upon any order or decree
of a court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending, and upon a certificate of
the receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making any such payment or distribution, delivered to the Lenders or
Administrative Agent for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of Senior Debt of Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Section 8.
Administrative Agent shall not at any time be charged with the knowledge of
the existence of any facts that would prohibit the making of any payment to or
by Administrative Agent under this Section 8, unless and until Administrative
Agent shall have received written notice thereof from Company or one or more
holders of the Senior Debt of Company or a representative of any holders of such
Senior Debt; and, prior to the receipt of any such written notice,
Administrative Agent shall be entitled to assume conclusively that no such facts
exist. Administrative Agent shall be entitled to rely on the delivery to it of
written notice by a Person representing itself to be a holder of the Senior Debt
of Company (or a representative thereof) to establish that such notice has been
given.
Company shall promptly give written notice to Administrative Agent and each
of the Lenders of any default or event of default under any Senior Debt of
Company or under any agreement pursuant to which Senior Debt of Company may have
been issued, and, in the event of any such event of default, shall provide to
Administrative Agent the names and address of the trustees or other
representatives of holders of such Senior Debt of Company.
With respect to the holders and owners of Senior Debt of Company,
Administrative Agent and each Lender undertake to perform only such obligations
on the part of Administrative Agent or such Lender, as the case may be, as are
specifically set forth in this Section 8, and no implied covenants or
obligations with respect to the holders or owners of Senior Debt of Company
shall be read into this Agreement against Administrative Agent or the Lenders.
Administrative Agent and the Lenders shall not be deemed to owe any fiduciary
duty to the holders or owners of Senior Debt of Company or to the agent under
the Senior Secured Credit Agreement or any other representative of the holders
of the Senior Debt of Company.
Administrative Agent in its individual or any other capacity may hold
Indebtedness of Company (including Senior Debt) with the same rights it would
have if it were not Administrative Agent.
8.3 Payments May Be Paid Prior to Dissolution
Nothing contained in this Section 8 or elsewhere in this Agreement shall
prevent or delay (i) Company, except under the conditions described in
subsection 8.2, from making payments at any time for the purpose of paying
Obligations, or from depositing with Administrative Agent any moneys for such
payments, or (ii) subject to subsection 8.2, the application by Administrative
Agent of any moneys deposited with it for the purpose of paying Obligations.
8.4 Rights of Holders of Senior Debt of Company Not To Be Impaired
No right of any present or future holder of any Senior Debt of Company to
enforce subordination as provided in this Section 8 shall at any time in any way
be prejudiced or impaired by any act or failure to act by any such holder, or by
any noncompliance by Company with the terms and provisions and covenants herein,
regardless of any knowledge thereof any such holder may have or otherwise be
charged with. Without in any way limiting the generality of the foregoing
sentence, such holders of Senior Debt of Company may, at any time and from time
to time without impairing or releasing the subordination provided in this
Section 8 or the obligations of the Lender hereunder to the holders of Senior
Debt of Company, do any one or more of the following: (i) change the manner,
place, terms or time of payment of, or renew or alter, Senior Debt of Company or
otherwise amend or supplement in any manner Senior Debt of Company or any
instrument evidencing the same or any agreement under which any Senior Debt of
Company is outstanding; (ii) sell, exchange, release, or otherwise deal with any
property pledged, mortgaged, or otherwise securing Senior Debt of Company or
fail to perfect or delay in the perfection of the security interest in such
property; (iii) release any Person liable in any manner for the collection of
Senior Debt of Company; and (iv) exercise or refrain from exercising any rights
against Company and any other Person. Each Lender by purchasing or accepting a
Note waives any and all notice of the creation, modification, renewal, extension
or accrual of any Senior Debt of Company and notice of or proof of reliance by
any holder or owner of Senior Debt of Company upon this Section 8 and the Senior
Debt of Company shall conclusively be deemed to have been created, contracted or
incurred in reliance upon this Section 8, and all dealings between Company and
the holders and owners of the Senior Debt of Company shall be deemed to have
been consummated in reliance upon this Section 8.
The provisions of this Section 8 are intended to be for the benefit of, and
shall be enforceable directly by, the holders of the Senior Debt of Company.
8.5 Subrogation
Upon the payment in full in accordance with the terms of subsection 8.2 of
all amounts payable under or in respect of the Senior Debt of Company, the
Lenders shall be subrogated to the rights of the holders of such Senior Debt of
Company to receive payments or distributions of assets of Company made on such
Senior Debt of Company until the Obligations shall be paid in full in cash or
Cash Equivalents to the extent set forth herein; and for purposes of such
subrogation no payments or distributions to holders of such Senior Debt of
Company of any cash, property or securities to which the Lenders would be
entitled except for the provisions of this Section 8, and no payment over
pursuant to the provisions of this Section 8 to holders of such Senior Debt of
Company by the Lenders, shall, as between Company, its creditors other than
holders of such Senior Debt of Company and the Lenders, be deemed to be a
payment by Company to or on account of such Senior Debt of Company, it being
understood that the provisions of this Section 8 are solely for the purpose of
defining the relative rights of the holders of such Senior Debt of Company, on
the one hand, and the Lenders, on the other hand. A release of any claim by any
holder of Senior Debt of Company shall not limit the Lenders' rights of
subrogation under this subsection 8.5.
If any payment or distribution to which the Lenders would otherwise have
been entitled but for the provisions of this Section 8 shall have been applied,
pursuant to the provisions of this Section 8, to the payment of all amounts
payable under the Senior Debt of Company, then and in such case, the Lenders
shall be entitled to receive from the holders of such Senior Debt of Company at
the time outstanding the full amount of any such payments or distributions
received by such holders of Senior Debt of Company in excess of the amount
sufficient to pay all Senior Debt of Company payable under or in respect of the
Senior Debt of Company in full in cash or Cash Equivalents in accordance with
the terms of subsection 8.2.
8.6 Obligations of Company Unconditional
Nothing contained in this Section 8 or elsewhere in this Agreement is
intended to or shall impair as between Company and the Lenders the obligations
of Company, which are absolute and unconditional, to pay to the Lenders the
Obligations as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Lenders and creditors of Company other than the holders of the Senior Debt of
Company, nor shall anything herein or therein prevent the Lenders from
exercising all remedies otherwise permitted by applicable law upon default under
this Agreement, subject to the rights, if any, under this Section 8 of the
holders of such Senior Debt of Company in respect of cash, property or
securities of Company received upon the exercise of any such remedy.
The failure to make a payment on account of Obligations by reason of any
provision of this Section 8 shall not prevent the occurrence of an Event of
Default under Section 7.
8.7 Lenders Authorize Administrative Agent To Effectuate Subordination
Each Lender hereby authorizes and expressly directs Administrative Agent on
its behalf to take such action as may be necessary or appropriate to effectuate
the subordination provided in this Section 8 and appoints Administrative Agent
its attorney in fact for such purpose, including, without limitation, in the
event of any dissolution, winding up, liquidation or reorganization of Company
(whether in bankruptcy, insolvency, receivership, reorganization or similar
proceedings or upon an assignment for the benefit of creditors or any other
similar remedy or otherwise) tending towards liquidation of the business and
assets of Company, the immediate filing of a claim for the unpaid balance of the
Obligations in the form required in said proceedings and causing said claim to
be approved. If Administrative Agent does not file a proper claim or proof of
debt in the form required in such proceeding prior to 30 days before the
expiration of the time to file such claim or claims, then the holders of the
Senior Debt of Company are hereby authorized to have the right to file and are
hereby authorized to file an appropriate claim for and on behalf of the Lenders.
SECTION 9.
AGENTS
9.1. Appointment
A. Appointment of Agent. CSFB is hereby appointed as Lead Arranger and
Administrative Agent and BT Alex. ▇▇▇▇▇ Incorporated is hereby appointed as
Co-Arranger hereunder and under the other Loan Documents, and each Lender hereby
authorizes each Agent to act as its agent in accordance with the terms of this
Agreement and the other Loan Documents. Each Agent 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 Company or any of its Subsidiaries.
All obligations of the Lead Arranger and the Co-Arranger hereunder shall
terminate and thereafter the Lead Arranger and the Co-Arranger (in such
capacities) shall have no obligations or liabilities under any of the Loan
Documents.
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. An
Agent shall have only those duties and responsibilities that are expressly
specified in this Agreement with respect to such Agent and the other Loan
Documents. An Agent may exercise such powers, rights and remedies and perform
such duties by or through its agents or employees. An Agent shall not 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.
B. No Responsibility for Certain Matters. An Agent shall not 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 such Agent to Lenders or by or on behalf of
Company to such Agent or any Lender in connection with the Loan Documents and
the transactions contemplated thereby or for the financial condition or business
affairs of Company or any other Person liable for the payment of any
Obligations, nor shall such 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 Default. Anything contained in this Agreement to the contrary
notwithstanding, an Agent shall not have any liability arising from
confirmations of the amount of outstanding Loans or the component amounts
thereof.
C. Exculpatory Provisions. None of Agents or any of their respective
officers, directors, employees or agents shall be liable to Lenders for any
action taken or omitted by such 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. Such 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 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) and, upon receipt of such instructions from
Requisite Lenders (or such other Lenders, 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) an 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 Company and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii) no Lender shall
have any right of action whatsoever against an 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 accordance with the instructions of Requisite
Lenders (or such other Lenders as may be required to give such instructions
under subsection 10.6).
D. Agents Entitled to Act as Lenders. 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, an Agent in its individual capacity as a Lender hereunder.
With respect to its participation in the Loans, each Agent shall have the same
rights and powers hereunder as 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 such Agent in its individual
capacity. Each 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 Company or any of its Affiliates as if it were not performing the
duties specified herein, and may accept fees and other consideration from
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 Company and its
Subsidiaries in connection with the making of the Loans hereunder and that it
has made and shall continue to make its own appraisal of the creditworthiness of
Company and its Subsidiaries. Agents shall not 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 Agents
shall not 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, 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 an
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 resulting from an Agent's gross negligence or
willful misconduct. If any indemnity furnished to such 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.
9.5. Successor Agent
Any Agent may resign at any time by giving 30 days' prior written notice
thereof to Lenders and Company. Upon any such notice of resignation, Requisite
Lenders shall have the right, upon five Business Days' notice to Company, to
appoint a successor to such Agent. Upon the acceptance of any appointment as an
Agent hereunder by a successor Agent, that successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, as the case may be, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Agent's resignation hereunder as 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 an Agent under this Agreement.
9.6. Subsidiary Guaranties
Each Lender hereby further authorizes Administrative Agent, on behalf of
and for the benefit of Lenders and to be the agent for and representative of
Lenders under the Senior Subordinated Subsidiary Guaranty, and each Lender
agrees to be bound by the terms of the Senior Subordinated Subsidiary Guaranty;
provided that Administrative Agent shall not enter into or consent to any
amendment, modification, termination or waiver of any provision contained in the
Senior Subordinated Subsidiary Guaranty without the consent of the Requisite
Lenders; provided further, however, that, without further written consent or
authorization from Lenders, Administrative Agent may execute any documents or
instruments necessary to release any Subsidiary Guarantor from the Senior
Subordinated Subsidiary Guaranty if all of the capital stock of such Subsidiary
Guarantor is sold to any Person (other than an Affiliate of Company) pursuant to
a sale or other disposition permitted hereunder or to which Requisite Lenders
have otherwise consented. Each Lender agrees to be bound by the subordination
provisions of Section 3 of the Senior Subordinated Subsidiary Guaranty as they
apply to it. Anything contained in any of the Loan Documents to the contrary
notwithstanding, Company, Administrative Agent and each Lender hereby agree that
no Lender shall have any right individually to enforce the Senior Subordinated
Subsidiary Guaranty, it being understood and agreed that all rights and remedies
under the Senior Subordinated Subsidiary Guaranty may be exercised solely by
Administrative Agent for the benefit of Lenders in accordance with the terms
thereof.
SECTION 10.
MISCELLANEOUS
10.1. Assignments and Participations in Loans
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 in any case its rights or obligations with respect
thereto 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). 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 or the other
Obligations owed to such Lender.
B. Assignments.
(i) Amounts and Terms of Assignments. Each Commitment, Loan or other
Obligation may (a) be assigned in any amount to another Lender, or to an
Affiliate of the assigning Lender or another Lender or to an Approved Fund, with
the giving of notice to Company and Administrative Agent or (b) be assigned in
an aggregate amount of not less than $5,000,000 (or such lesser amount as shall
constitute the aggregate amount of the Commitments, Loans and other Obligations
of the assigning Lender) 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 assignment
to an Affiliate of the assigning Lender (or an Approved Fund) that would result
in increased costs to Company shall also require the prior written consent of
Company and such prior written consent of Company shall not be unreasonably
withheld and which may be conditioned on the Eligible Assignee agreeing not to
require reimbursement from Company of such increased costs; provided, further,
that after an Event of Default occurs and is continuing, the consent of Company
shall not be required for assignment to an Eligible Assignee. 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 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 $3,500 (except in
the event of an Assignment to a Lender or an Affiliate of a Lender) 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 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. 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 the Notes hereunder, the assigning
Lender shall, upon the effectiveness of such assignment or as promptly
thereafter as practicable, surrender its applicable Notes to Administrative
Agent for cancellation, and thereupon new Notes shall be issued to the assignee
and/or to the assigning Lender, substantially in the form of Exhibit II or
Exhibit IV annexed hereto, as the case may be, with appropriate insertions, to
reflect the new Commitments and/or outstanding Loans, 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 and Company have consented to the assignment
evidenced thereby (in each case to the extent such consent is required 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 or (ii) a reduction of the principal amount of
or the rate of interest payable on any Loan allocated to such participation, and
all amounts payable by Company hereunder (including amounts payable to such
Lender pursuant to subsections 2.7D and 2.8) shall be determined as if such
Lender had not sold such participation. 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. 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; 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 be considered to
be a "Lender" or be entitled to require the assigning Lender to take or omit to
take any action hereunder.
E. Assignments of Special Purpose Funding Vehicles. In addition to the
assignments and participations permitted under the foregoing provisions of this
subsection 10.1, any Lender (a "Granting Lender") may grant to special purpose
funding vehicle (an "SPV"), identified as such in writing from time to time by
the Granting Lender to Administrative Agent and Company, the option to provide
to Company all or any part of any Loan that such Granting Lender would otherwise
be obligated to make Company pursuant to this Agreement; provided, (i) nothing
herein shall constitute a commitment by any SPV to make any Loan and (ii) if an
SPV elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPV hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPV shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPV, it will not institute
against, or join any other person in instituting against, such SPV, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this subsection 10.1E(i),
any SPV may (i) with notice to, but without the prior written consent of,
Company and the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loan to the Granting
Lender or to any financial institutions (consented to by Company and
Administrative Agent) providing liquidity and/or credit support to or for the
account of such SPV to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit liquidity enhancement to such SPV. After the date of a grant
to any SPV, this section may not be amended without the written consent of such
SPV.
F. 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 assignee and participants),
subject to subsection 10.19.
G. 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 or invest in 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.
10.2. Expenses
Whether or not the transactions contemplated hereby shall be consummated,
Company agrees to pay promptly (i) all the actual and reasonable costs and
expenses of Agents in connection with the preparation of the Loan Documents and
any consents, amendments, waivers or other modifications thereto; (ii) all
reasonable 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; (iii) the reasonable fees,
expenses and disbursements of counsel to Agents (including allocated costs of
internal counsel) in connection with the negotiation, preparation, execution and
administration of the Loan Documents and any consents, amendments, waivers or
other modifications thereto and any other documents or matters requested by
Company; (iv) all other actual and reasonable costs and expenses incurred by
Agents in connection with the syndication of the Commitments and the
negotiation, preparation and execution of the Loan Documents and any consents,
amendments, waivers or other modifications thereto and the transactions
contemplated thereby; and (v) 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 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 enforcement of the Senior
Subordinated Subsidiary Guaranty) or in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a "work-out" or pursuant to any insolvency or bankruptcy proceedings.
10.3. Indemnity
In addition to the payment of expenses pursuant to subsection 10.2, whether
or not the transactions contemplated hereby shall be consummated, Company agrees
to defend (subject to Indemnitees' selection of counsel), indemnify, pay and
hold harmless Agents and Lenders, and the officers, directors, employees,
trustee, agents and affiliates 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 solely from the gross negligence or willful
misconduct of that Indemnitee as determined by a final 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, 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 transactions contemplated hereby or
thereby (including Lenders' agreement to make the Loans hereunder or the use or
intended use of the proceeds thereof or any enforcement of any of the Loan
Documents (including the enforcement of the Senior Subordinated Subsidiary
Guaranty) or (ii) the statements contained in the commitment letter delivered by
any Lender to Company with respect thereto.
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 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
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 of any Event of
Default each Lender is hereby authorized by Company at any time or from time to
time, without notice to Company or to any other Person, 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) 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 to that Lender under this Agreement and the other Loan
Documents, including all claims of any nature or description arising out of or
connected with this Agreement or any other Loan Document, irrespective of
whether or not (i) that Lender shall have made any demand hereunder or (ii) the
principal of or the interest on the Loans or any other amounts due hereunder
shall have become due and payable pursuant to Section 8 and although said
obligations and liabilities, or any of them, may be contingent or unmatured.
10.5. Ratable Sharing
Administrative Agent agrees that promptly after its receipt of each payment
of any interest or premium on or principal of the Loans or Notes from or on
behalf of Company or any Subsidiary Guarantor, it shall, except as otherwise
provided in this Agreement, distribute such payment to the Lenders (other than
any Lender that has consented in writing to waive its pro rata share of such
payment) pro rata based upon their respective pro rata shares, if any, of such
payment.
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, 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
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.
10.6. Amendments and Waivers
No amendment, modification, termination or waiver of any provision of this
Agreement or of the Notes, and no consent to any departure by Company therefrom,
shall in any event be effective without the written concurrence of Requisite
Lenders; provided that any such amendment, modification, termination, waiver or
consent which: reduces the principal amount of any of the Loans; changes in any
manner the definition of "Pro Rata Share" or the definition of "Requisite
Lenders"; changes in any manner any provision of this Agreement which, by its
terms, expressly requires the approval or concurrence of all Lenders; postpones
the scheduled final maturity date of any of the Loans or Notes; postpones the
date on which any interest or any fees are payable; decreases the interest rate
borne by any of the Loans or Notes or the amount of any fees payable hereunder;
increases the maximum duration of Interest Periods permitted hereunder; makes
any change in subsection 2.5A(iv) or in the definition of "Change of Control" or
waives performance by Company of any of its obligations under, or consent to any
departure from any of the terms or provisions of, subsection 2.5A(iv) after the
occurrence of a Change of Control; releases any Subsidiary Guarantor from its
obligations under the Senior Subordinated Subsidiary Guaranty; modify the
provisions of Section 8 or any of the defined terms related thereto in any
manner adverse to the Lenders, in each case other than in accordance with the
terms of the Loan Documents; or changes in any manner the provisions contained
in subsection 9.1 or this subsection 10.6 shall be effective only if evidenced
by a writing signed by or on behalf of all Lenders; provided, further, that no
such amendment, modification, termination, waiver or consent shall increase the
Commitment of a Lender over the amount hereof then in effect without the consent
of such Lender. In addition, (i) any amendment, modification, termination or
waiver of any of the provisions contained in Section 3 shall be effective only
if evidenced by a writing signed by or on behalf of Administrative Agent and
Requisite Lenders, (ii) no amendment, modification, termination or waiver of any
provision of any Note shall be effective without the written concurrence of the
Lender which is the holder of that Note, and (iii) no amendment, modification,
termination or waiver of any provision of Section 9 or of any other provision of
this Agreement which, by its terms, expressly requires the approval or
concurrence of any Agent shall be effective without the written concurrence of
such Agent. No amendment, modification or waiver of Section 8 of this Agreement
that adversely affects the rights of a holder of Senior Debt shall be binding on
such holder without the prior written consent of such holder. 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 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 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 Agents 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 Company and any 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
hereunder.
B. Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of Company set forth in subsections 2.7D, 2.8, 10.2,
10.3 and 10.4 and the agreements of Lenders set forth in subsections 9.2C, 9.4
and 10.5 shall to the extent set forth therein survive the payment of the Loans,
and the termination of this Agreement.
10.10. Failure or Indulgence Not Waiver; Remedies Cumulative
No failure or delay on the part of any 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
Neither Administrative Agent nor 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 or Lenders (or to Administrative
Agent for the benefit of Lenders), or Administrative 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, 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
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 Company's
rights or obligations hereunder nor any interest therein may be assigned or
delegated by Company without the prior written consent of all Lenders.
10.17. CONSENT TO JURISDICTION AND SERVICE OF PROCESS
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY 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, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(i) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND
VENUE OF SUCH COURTS;
(ii) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS WITH RESPECT TO ANY STATE
OR FEDERAL COURT OF COMPETENT JURISDICTION IN ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇;
(iii) AGREES 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
COMPANY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SUBSECTION 10.8;
(iv) AGREES 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) AGREES 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) AGREES 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/BORROWER 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 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 which has been identified as confidential by
Company in accordance with such Lender's customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices, if applicable, it being understood and agreed by Company that
in any event a Lender may make disclosures to the accountants, auditors,
attorneys, and 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 disclosures required or requested by any governmental
agency or representative thereof 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 routine compliance
examination or 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 Company
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 each of the parties hereto and receipt by Company and
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
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:
EXPRESS SCRIPTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇
Title: Senior Vice President and Chief
Financial Officer
Notice Address:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
AGENTS:
CREDIT SUISSE FIRST BOSTON
individually and as Lead Arranger and
Administrative Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Notice Address:
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
LENDERS:
Commitment: $97,500,000 CREDIT SUISSE FIRST BOSTON
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Commitment: $52,500,000 BANKERS TRUST CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director