EXHIBIT 10.1
================================================================================
CREDIT AGREEMENT
DATED AS OF JUNE 27, 2001
AMONG
RAYTHEON AEROSPACE LLC,
AS BORROWER,
THE LENDERS LISTED HEREIN,
AS LENDERS,
TRUSTMARK NATIONAL BANK,
AS SWING LINE LENDER,
CANADIAN IMPERIAL BANK OF COMMERCE,
AS ADMINISTRATIVE AGENT,
▇▇▇▇▇▇ FINANCIAL INC.,
AS CO-SYNDICATION AGENT,
GENERAL ELECTRIC CAPITAL CORPORATION,
AS DOCUMENTATION AGENT,
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as Documentation Agent
CREDIT LYONNAIS
AS CO-SYNDICATION AGENT,
AND
CIBC WORLD MARKETS CORP.,
AS LEAD ARRANGER
================================================================================
RAYTHEON AEROSPACE LLC
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of June 27, 2001 and entered into
by and among RAYTHEON AEROSPACE LLC, a Delaware limited liability company
("BORROWER"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF OR
PARTY FROM TIME TO TIME HERETO (each individually referred to herein as a
"LENDER" and collectively as "LENDERS"), TRUSTMARK NATIONAL BANK, as swing line
lender (in such capacity, the "SWING LINE LENDER"), CANADIAN IMPERIAL BANK OF
COMMERCE, acting through one or more of its agencies, branches or affiliates
("CIBC"), as administrative agent for Lenders (in such capacity, "ADMINISTRATIVE
AGENT"), ▇▇▇▇▇▇ FINANCIAL, INC., as Co-Syndication Agent, GENERAL ELECTRIC
CAPITAL CORPORATION, as Documentation Agent, BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, a Documentation Agent, CREDIT LYONNAIS, as Co-Syndication Agent, and
CIBC WORLD MARKETS CORP., as lead arranger and bookrunner (in such capacity,
"LEAD ARRANGER").
R E C I T A L S
WHEREAS, The Veritas Capital Fund, L.P. ("VERITAS") has formed RA
Aerospace Holding LLC, a Delaware limited liability company ("VERITAS SUB") and
RAAH I, LLC, a Delaware limited liability company ("HOLDINGS");
WHEREAS, Veritas Sub, Raytheon Aircraft Holdings, Inc., a Delaware
corporation ("PARENT"), Raytheon Aerospace Company, a Kansas corporation and a
wholly owned subsidiary of Parent ("RAC"), Wing Corp., a Delaware corporation
and a wholly owned subsidiary of Parent ("RA TEMP"), and Holdings have entered
into a Combination Agreement dated as of April 5, 2001, as amended by that
certain First Amendment to Combination Agreement dated as of June 27, 2001 (as
amended, the "COMBINATION AGREEMENT") pursuant to which:
(i) RAC will be merged into RA Temp (with RA Temp as the surviving
entity) and RA Temp will be converted into Borrower and Borrower will thereby
become the owner of substantially all of the assets of RAC through a series of
conversions, mergers and other corporate transactions (collectively, the
"MERGERS") and will be wholly owned by Holdings;
(ii) Borrower will distribute $47,000,000 of Excluded A/R
(hereafter defined) to Parent;
(iii) In consideration of the Mergers, Holdings will issue to Parent
a preferred interest in Holdings representing a $51,000,000 aggregate capital
interest in Holdings (the "PIK PREFERRED INTEREST") and a junior common interest
in Holdings representing a $15,143,000 aggregate capital interest in Holdings,
which represents a 26.5% ownership interest in the common membership interests
of Holdings (collectively, the "ROLLOVER EQUITY");
1
(iv) In consideration of the payment by Veritas Sub of $42,000,000
in cash to Holdings, which cash shall be used to fund the operating cash needs
of Borrower, Holdings will issue to Veritas Sub a senior common interest in
Holdings representing a $42,000,000 aggregate capital interest in Holdings,
which represents a 73.5% ownership interest in the common membership interests
of Holdings (the "EQUITY SALE"); and
(v) Borrower will incur indebtedness of up to $177,500,000, of
which $156,714,000 will be distributed to Parent and up to $16,500,000 will be
applied against the Transaction Costs (hereafter defined) (collectively with the
Mergers and the other transactions described above, the "TRANSACTIONS");
WHEREAS, Lenders, at the request of Borrower, have agreed to extend
certain credit facilities to Borrower, in the aggregate original principal
amount of $125,000,000 the proceeds of which will be used, (i) together with the
proceeds of the Subordinated Notes, to fund the Transactions, and (ii)
thereafter, to provide financing for general corporate purposes of Borrower and
its Subsidiaries, including working capital, acquisitions, and capital
expenditures;
WHEREAS, Borrower desires to secure all of the Obligations hereunder
and under the other Loan Documents by granting to Administrative Agent, on
behalf of Lenders, a First Priority Lien (except for existing Liens) on
substantially all of its real, personal and mixed property, including a pledge
of all of the Capital Stock of each of its domestic Subsidiaries (if any) and
all of the non-voting and 65% of the voting Capital Stock of its foreign
Subsidiaries (if any); and
WHEREAS, Holdings and all of the domestic Subsidiaries of Borrower
have agreed to guarantee the Obligations hereunder and under the other Loan
Documents and to secure their guaranties by granting to Administrative Agent, on
behalf of Lenders, a First Priority Lien (except for existing Liens) on
substantially all of their real, personal and mixed property, including a pledge
of all of the Capital Stock of each of their domestic Subsidiaries (if any) and
65% of the voting and 100% of the non-voting Capital Stock of their respective
foreign Subsidiaries (if any):
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Borrower, Lenders, Co-Syndication
Agents, Documentation Agents and Administrative Agent agree as follows:
SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the
following meanings:
"ACCOUNTS" means all present and future rights of Borrower and its
Subsidiaries to payment for goods sold or leased or for services rendered
(including any such rights evidenced by instruments or chattel paper), whether
due or to become due, whether now existing or hereinafter arising and wherever
arising, and whether or not they have been earned by performance.
"ADDITIONAL MORTGAGED PROPERTY" has the meaning assigned to that
term in subsection 6.9A.
"ADDITIONAL MORTGAGES" has the meaning assigned to that term in
subsection 6.9A.
"ADJUSTED LIBOR" means, for any Interest Rate Determination Date
with respect to an Interest Period for a LIBOR Loan, the rate per annum obtained
by DIVIDING (x) the rate of interest equal to (a) the rate per annum determined
on the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period and
appearing on Telerate Screen 3750 at or about 11:00 A.M., London time, two
Business Days prior to the commencement of such Interest Period, or (b) if such
a rate does not appear on Telerate Screen 3750, the average of the rates per
annum at which Dollar deposits in immediately available funds are offered to
CIBC in the interbank LIBOR market as at or about 11:00 A.M. (New York City
time) two Business Days prior to the beginning of such Interest Period for
delivery on the first day of such Interest Period, and for a period
approximately equal to such Interest Period, BY (y) a percentage equal to 100%
MINUS the stated maximum rate (expressed as a percentage) of all reserve
requirements (including any marginal, emergency, supplemental, special or other
reserves) applicable on such Interest Rate Determination Date to any member bank
of the Federal Reserve System in respect of "Eurocurrency liabilities" as
defined in Regulation D (or any successor category of liabilities under
Regulation D).
"ADMINISTRATIVE AGENT" has the meaning assigned to that term in
the introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 9.5A.
"ADMINISTRATIVE AGENT'S OFFICE" means (i) the office of
Administrative Agent located at CIBC, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
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 Borrower and each Lender.
"AFFECTED LENDER" has the meaning assigned to that term in
subsection 2.6C.
"AFFECTED LOANS" has the meaning assigned to that term in subsection
2.6C.
"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 this definition, a Person shall be
deemed to be "controlled by" a Person if such Person possesses, directly or
indirectly, power to vote 10% or more of the securities having ordinary voting
power for the election of directors of such Person. Notwithstanding the
foregoing, neither Administrative Agent nor any Lender shall be deemed to be an
Affiliate of any of the Loan Parties.
"AGENTS" means collectively, Administrative Agent and any
documentation agent or syndication agent appointed under this Agreement.
"AGREEMENT" means this Credit Agreement dated as of June ___,
2001.
"APPLICABLE BASE RATE MARGIN" means, as at any date of
determination, with respect to any Type of Loan that is a Base Rate Loan, a
percentage per annum equal to the Applicable LIBOR Margin for such Type of Loan
LESS 1.00%.
"APPLICABLE LIBOR MARGIN" means (a) with respect to Tranche B Term
Loans that are LIBOR Loans, 4.00% per annum, and (b) with respect to Revolving
Loans and Tranche A Term Loans that are LIBOR Loans, a percentage per annum as
set forth below opposite the applicable Consolidated Total Leverage Ratio:
CONSOLIDATED TOTAL LEVERAGE RATIO APPLICABLE LIBOR MARGIN
------------------------------------------------------------------------
greater than or equal to 3.75:1.00 3.50%
less than 3.75:1.00 3.25%
but greater than or equal to 3.25:1.00
less than 3.25:1.00 3.00%
but greater than or equal to 2.75:1.00
less than 2.75:1.00 2.75%
but greater than or equal to 2.25:1.00;
less than 2.25:1.00 2.50%
; PROVIDED that until the date that is five Business Days after the date on
which Borrower delivers the first Margin Determination Certificate required to
be delivered to Administrative Agent
pursuant to subsection 6.1(xvi), the Applicable LIBOR Margin for Revolving Loans
that are LIBOR Loans and Tranche A Term Loans shall be 3.50%.
"APPROVED FUND" means any fund that invests (in whole or in part)
in commercial loans, any other fund that invests (in whole or in part) in
commercial loans and is managed by a Lender, the same investment advisor as such
Lender or by an Affiliate of such Lender or investment advisor.
"ASSET SALE" means the sale (in any single transaction or related
series of transactions) by Borrower or any of its Subsidiaries to any Person
other than Borrower or any of its wholly-owned domestic Subsidiaries of (i) any
of the Capital Stock of any of Borrower's Subsidiaries, (ii) substantially all
of the assets of any division or line of business of Borrower or any of its
Subsidiaries, or (iii) any other assets (whether tangible or intangible) of
Borrower or any of its Subsidiaries (other than (a) Inventory sold in the
ordinary course of business, (b) Capital Stock of Borrower, and (c) sales of
assets from Borrower or any of its Subsidiaries to Borrower or any Subsidiary
Guarantor).
"ASSIGNMENT AGREEMENT" means an Assignment Agreement in
substantially the form of EXHIBIT XII annexed hereto.
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any successor statute.
"BASE RATE" means, at any time, the higher of (i) the Reference
Rate or (ii) the rate which is one-half of 1% in excess of the Federal Funds
Effective Rate.
"BASE RATE LOANS" means Loans bearing interest at rates determined
by reference to the Base Rate as provided in subsection 2.2A.
"BORROWER" has the meaning assigned to that term in the
introductory paragraph to this Agreement.
"BORROWER MEMBERSHIP INTERESTS" means the membership interests in
Borrower.
"BORROWING BASE" means (i) the sum of (a) 85% of the face amount
of Eligible Accounts Receivable, (b) 60% of the lower of the cost or fair market
value of Eligible Inventory, and (c) 50% of the face amount of Eligible Unbilled
Accounts Receivable LESS (ii) the amount of the obligations secured by Permitted
Encumbrances on such Eligible Accounts Receivable, Eligible Unbilled Accounts
Receivable or Eligible Inventory.
"BORROWING BASE CERTIFICATE" means a certificate substantially in
the form of EXHIBIT IV annexed hereto delivered to Administrative Agent and
Lenders by Borrower pursuant to subsection 4.1U or subsection 6.1(i).
"BUSINESS DAY" means (i) any day excluding Saturday, Sunday and
any day which 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) with respect to all notices,
determinations, fundings and payments in connection with Adjusted LIBOR or any
LIBOR Loan, any day that (a) is a Business Day described in clause (i) above,
and (b) is a day for trading by and between banks in Dollar deposits in the
London Interbank Market.
"CAPITAL LEASE", as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"CAPITAL STOCK" means the capital stock or other equity,
membership or ownership interests of a Person.
"CASH" means money, currency or a credit balance in a Deposit
Account.
"CASH EQUIVALENTS" means (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition ("GOVERNMENT OBLIGATIONS"), (ii)
U.S. dollar denominated (or foreign currency fully hedged) time deposits,
certificates of deposit, Eurodollar time deposits and Eurodollar certificates of
deposit of (y) any domestic commercial bank of recognized standing having
capital and surplus in excess of $250,000,000 or (z) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof or
from ▇▇▇▇▇'▇ is at least P-1 or the equivalent thereof (any such bank being an
"APPROVED BANK") in each case with maturities of not more than 364 days from the
date of acquisition, (iii) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof) or any variable
rate notes issued by, or guaranteed by any domestic corporation rated A-1 (or
the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or
better by Moody's and maturing within six months of the date of acquisition,
(iv) repurchase agreements with a bank or trust company (including a Lender) or
a recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the United
States of America, (v) obligations of any state of the United States or any
political subdivision thereof for the payment of the principal and redemption
price of and interest on which there shall have been irrevocably deposited
Government Obligations maturing as to principal and interest at times and in
amounts sufficient to provide such payment, and (vi) auction preferred stock
rated in the highest short-term credit rating category by S&P or Moody's.
"CERTIFICATE RE: NON-BANK STATUS" means a certificate
substantially in the form of Exhibit XXI annexed hereto delivered by a Lender to
Administrative Agent pursuant to subsection 2.7B(iii).
"CHANGE IN CONTROL" means the occurrence of any of the following
events: (a) the failure of Veritas or one or more of its Affiliates (other than
Affiliates that are operating companies) that are majority controlled by Veritas
to maintain beneficial ownership, directly or indirectly, of membership
interests of Holdings representing at least 51% of all voting
membership interests of Holdings, (b) the failure of Holdings to own, directly
or indirectly, at least 85% of the Borrower Membership Interests, (c) the
failure of Veritas or one or more of its Affiliates that are majority controlled
by Veritas to maintain beneficial ownership, directly or indirectly, of at least
24% of the senior common, junior common and preferred membership interests of
Holdings (and for purposes of such computation, the senior common, junior common
and preferred membership interests will be considered equivalent) and of the
Borrower Membership Interests, (d) individuals who were directors immediately
prior to the event or other directors designated by Veritas shall cease for any
reason to constitute a majority of the members of the board of directors of
Holdings or Borrower then in office, or (e) the occurrence of a "Change of
Control" as defined in the Subordinated Note Agreement. As used herein,
"beneficial ownership" shall have the meaning provided in Rule 13d-3 of the
Securities and Exchange Commission promulgated under the Securities Exchange Act
of 1934. For purposes of this definition, the exercise of veto rights by the
"Raytheon Representatives" (as such term is defined in the Amended and Restated
Limited Liability Company Agreement of Holdings) with respect to the actions
described in Section 7.10 of the Amended and Restated Limited Liability Company
Agreement of Holdings shall not be deemed a "Change of Control".
"CLOSING DATE" means the date on which the initial Loans are made.
"COLLATERAL" means, collectively, all of the real, personal and
mixed property (including Capital Stock) in which Liens are purported to be
granted pursuant to the Collateral Documents as security for the Obligations.
"COLLATERAL ACCESS AGREEMENT" means any landlord waiver, mortgagee
waiver, bailee letter or any similar acknowledgement or agreement of any
landlord or mortgagee in respect of any Real Property Asset where any Collateral
is located or any warehouseman or processor in possession of any Inventory of
any Loan Party, substantially in the form of EXHIBIT XVI annexed hereto with
such changes thereto as may be agreed to by Administrative Agent in the
reasonable exercise of its discretion.
"COLLATERAL ACCOUNT" has the meaning assigned to that term in the
Security Agreement.
"COLLATERAL ACCOUNT CONTROL AGREEMENT" means the Collateral
Account Control Agreement executed and delivered by Borrower on the Closing
Date, substantially in the form of EXHIBIT XX annexed hereto.
"COLLATERAL DOCUMENTS" means the Security Agreement, the Mortgages
(if any), the Collateral Account Control Agreement and all other instruments or
documents delivered by any Loan Party pursuant to this Agreement or any of the
other Loan Documents in order to grant to Administrative Agent, on behalf of
Lenders, a Lien on any real, personal or mixed property of that Loan Party as
security for the Obligations.
"COMMITMENTS" means the commitments of Lenders to make Loans as
set forth in subsection 2.1A.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the
form of EXHIBIT IX annexed hereto delivered to Administrative Agent and Lenders
by Borrower pursuant to subsection 6.1(iv).
"CONFORMING LEASEHOLD INTEREST" means any Recorded Leasehold
Interest as to which the lessor has agreed in writing for the benefit of
Administrative Agent (which writing has been delivered to Administrative Agent),
whether under the terms of the applicable lease, under the terms of a Landlord
Consent and Estoppel, or otherwise, to the matters described in the definition
of "Landlord Consent and Estoppel," which interest, if a subleasehold or
sub-subleasehold interest, is not subject to any contrary restrictions contained
in a superior lease or sublease.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the sum
of the aggregate of all expenditures (whether paid in Cash or other
consideration or accrued as a liability and including that portion of Capital
Leases which is capitalized on the consolidated balance sheet of Borrower and
its Subsidiaries) by Borrower and its Subsidiaries during that period that, in
conformity with GAAP, are included in "additions to property, plant or
equipment" or comparable items reflected in the consolidated statement of cash
flows of Borrower and its Subsidiaries. For purposes of this definition, (a) the
purchase price of equipment that is purchased simultaneously with the trade-in
of existing equipment or with insurance proceeds shall be included in
Consolidated Capital Expenditures only to the extent of the gross amount of such
purchase price less the credit granted by the seller of such equipment for the
equipment being traded in at such time or the amount of such proceeds, as the
case may be, and (b) the aggregate of all expenditures by Borrower and its
Subsidiaries during that period to acquire (by purchase or otherwise) the
business, property or fixed assets of any Person, or the Capital Stock or other
evidence of beneficial ownership of any Person that, as a result of such
acquisition, becomes a Subsidiary of Borrower shall be included in Consolidated
Capital Expenditures.
"CONSOLIDATED CURRENT ASSETS" means, as of any date of
determination, the total assets of Borrower and its Subsidiaries on a
consolidated basis that may properly be classified as current assets in
conformity with GAAP, EXCLUDING Cash and Cash Equivalents.
"CONSOLIDATED CURRENT LIABILITIES" means, as of any date of
determination, the total liabilities of Borrower and its Subsidiaries on a
consolidated basis that may properly be classified as current liabilities in
conformity with GAAP, EXCLUDING the current portions of Funded Debt and Capital
Leases.
"CONSOLIDATED EBITDA" means, for any period, the sum, without
duplication, of the amounts for such period of (i) Consolidated Net Income, PLUS
(ii) an amount that, in the determination of Consolidated Net Income for such
period, has been deducted for (A) Consolidated Interest Expense, (B) total
federal, state, local and foreign income, value added and similar taxes, (C)
losses (or minus gains) on the sale or disposition of assets outside the
ordinary course of business, (D) depreciation, amortization expense and other
non-cash, non-recurring extraordinary charges and (E) non-cash preferred
dividends and non-cash payment in kind interest paid to the extent deducted in
determining Consolidated Net Income PLUS (iii) monitoring
fees to the extent paid as permitted by subsection 7.10(a)(iii), PLUS (iv) on a
one-time basis, costs and expenses incurred by the Loan Parties in connection
with the Transactions, PLUS (v) the adjustments set forth on SCHEDULE 1.1
annexed hereto as if they occurred in the fourth Fiscal Quarter of 2000, PLUS
(vi) adjustments consistent with the adjustments set forth on SCHEDULE 1.1 for
the period January 1, 2001 through December 31, 2001, in an aggregate amount not
to exceed $5,000,000, all of the foregoing as determined on a consolidated basis
for Borrower and its Subsidiaries in conformity with GAAP; PROVIDED that in
calculating any such items for purposes of Consolidated Total Leverage Ratio or
Consolidated Senior Leverage Ratio for such period, any Asset Sales or other
acquisitions or dispositions of assets during such period shall have been deemed
to have occurred on the first day of such period. For purposes of this
definition, the amount described in clause (B) shall include payments made by
Borrower to Holdings in order to make tax advance payments as provided in
Section 5.3 of the Amended and Restated Limited Liability Company Agreement of
Holdings, as in effect on the date hereof, so long as such amounts do not exceed
the amounts that would have been required to be paid as income tax payments if
Borrower were a subchapter C corporation.
"CONSOLIDATED EXCESS CASH FLOW" means, for any period, an amount
(if positive) equal to (i) the sum, without duplication, of the amounts for such
period of (a) Consolidated EBITDA (determined by adding back thereto any amount
deducted in the calculation of Consolidated Net Income that was paid, incurred
or accrued in violation of any of the provisions of this Agreement) and (b) the
Consolidated Working Capital Adjustment and (c) amounts received during such
period constituting purchase price adjustments under the Combination Agreement
that are not reflected in Consolidated EBITDA MINUS (ii) the sum, without
duplication, of the amounts for such period of (a) voluntary and scheduled
repayments of Consolidated Total Debt (excluding repayments of Revolving Loans
except to the extent the Revolving Loan Commitments are permanently reduced in
connection with such repayments), (b) Consolidated Capital Expenditures, (c)
Consolidated Interest Expense, (d) amounts paid during such period constituting
purchase price adjustments under the Combination Agreement, (e) the provision
for current taxes based on income of Borrower and its Subsidiaries and payable
in Cash with respect to such period and (f) monitoring fees to the extent paid
as permitted by subsection 7.10(iii) and bank fees paid by Borrower in
connection with the transactions to the extent not deducted in determining
Consolidated EBITDA. For purposes of this definition, amounts described in
clause (e) shall include payments made by Borrower to Holdings in order to make
tax advance payments as provided in Section 5.3 of the Amended and Restated
Limited Liability Company Agreement of Holdings, as in effect on the date
hereof, so long as such amounts do not exceed the amounts that would have been
required to be paid as income tax payments if Borrower were a subchapter C
corporation.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum
(without duplication) of the amounts for such period of (i) Consolidated
Interest Expense, (ii) Cash payments for taxes based on income, and (iii) all
scheduled principal payments to be made by Borrower or any of its Subsidiaries
(whether or not such payments are actually made) on all Indebtedness of Borrower
and its Subsidiaries (including the principal component of all Capital Leases),
all of the foregoing as determined on a consolidated basis for Borrower and its
Subsidiaries in conformity with GAAP; PROVIDED that (a) the Consolidated Fixed
Charges for the
four-Fiscal Quarter period ending on the last day of the third Fiscal Quarter of
Fiscal Year 2001 shall be the Consolidated Fixed Charges for the third Fiscal
Quarter of Fiscal Year 2001 multiplied by four, (b) the Consolidated Fixed
Charges for the four-Fiscal Quarter period ending on the last day of the fourth
Fiscal Quarter of Fiscal Year 2001 shall be the Consolidated Fixed Charges for
the third and fourth Fiscal Quarters of Fiscal Year 2001 multiplied by two, and
(c) the Consolidated Fixed Charges for the four-Fiscal Quarter period ending on
the last day of the first Fiscal Quarter of Fiscal Year 2002 shall be the sum of
the Consolidated Fixed Charges for the third and fourth Fiscal Quarters of
Fiscal Year 2001 and first Fiscal Quarter of Fiscal Year 2002 multiplied by
four-thirds. For purposes of this definition, the amount described in clause
(ii) shall include payments made by Borrower to Holdings in order to make tax
advance payments as provided in Section 5.3 of the Amended and Restated Limited
Liability Company Agreement of Holdings, as in effect on the date hereof, so
long as such amounts do not exceed the amounts that would have been required to
be paid as income tax payments if Borrower were a subchapter C corporation.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total cash
interest expense (including that portion attributable to Capital Leases in
accordance with GAAP and capitalized interest) of Borrower and its Subsidiaries
on a consolidated basis with respect to all outstanding Indebtedness of Borrower
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 Rate Agreements, but excluding, however, any
amounts referred to in subsection 2.3 payable to Administrative Agent and
Lenders on or before the Closing Date.
"CONSOLIDATED NET INCOME" means, for any period, the net income
(or loss) of Borrower 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 Borrower) in which any other Person (other than
Borrower or any of its Subsidiaries) has a joint interest, except to the extent
of the amount of dividends or other distributions actually paid to Borrower 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
Borrower or is merged into or consolidated with Borrower or any of its
Subsidiaries or that Person's assets are acquired by Borrower or any of its
Subsidiaries, (iii) the income of any Subsidiary of Borrower 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, (iv) any
after-tax gains or losses attributable to Asset Sales or returned surplus assets
of any Pension Plan, and (v) (to the extent not included in clauses (i) through
(iv) above) any net extraordinary gains or net non-cash extraordinary losses.
For purposes of this definition, the amount of tax expense deducted in
determining net income shall include the amount of tax advance payments as
provided in Section 5.3 of the Amended and Restated Limited Liability Company
Agreement of Holdings, as in effect on the date hereof, so long as such amounts
do not exceed the amounts that would have been required to be paid as income tax
payments if Borrower were a subchapter C corporation.
"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 Borrower and its Subsidiaries on a
consolidated basis determined in conformity with GAAP.
"CONSOLIDATED SENIOR DEBT" means, as at any date of determination,
Consolidated Total Debt LESS the aggregate principal amount of all unsecured
Subordinated Indebtedness of Borrower and its Subsidiaries, determined on a
consolidated basis.
"CONSOLIDATED SENIOR LEVERAGE RATIO" means, as at the last day of
any Fiscal Quarter, the ratio of (a) Consolidated Senior Debt as of the last day
of such Fiscal Quarter, to (b) Consolidated EBITDA for the four Fiscal Quarter
period then ended.
"CONSOLIDATED TOTAL DEBT" means, as at any date of determination,
the aggregate principal amount of all Indebtedness of Borrower and its
Subsidiaries, other than the PIK Preferred Interest and the face amount of
letters of credit where the conditions to drawing have not been met but
including the face amount of all letters of credit in excess of $7,500,000 in
the aggregate, determined on a consolidated basis LESS the amount of Cash and
Cash Equivalents in excess of $500,000.
"CONSOLIDATED TOTAL LEVERAGE RATIO" means, as at the last day of
any Fiscal Quarter, the ratio of (a) Consolidated Total Debt as of the last day
of such Fiscal Quarter, to (b) Consolidated EBITDA for the four Fiscal Quarter
period then ended.
"CONSOLIDATED WORKING CAPITAL" means, as of any date of
determination, the excess (or deficit) of Consolidated Current Assets over
Consolidated Current Liabilities.
"CONSOLIDATED WORKING CAPITAL ADJUSTMENT" means, for any period on
a consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or is
less than) Consolidated Working Capital as of the end of such period.
"CONTINGENT OBLIGATION", as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person (i) with
respect to any Indebtedness, lease, dividend or other obligation of another if
the primary purpose or intent thereof by the Person incurring the Contingent
Obligation is to provide assurance to the obligee of such obligation of another
that such obligation of another will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected (in whole or in part) against loss in respect
thereof, or (ii) under Hedge Agreements. Contingent Obligations shall include
(a) the direct or indirect guaranty, endorsement (otherwise than for collection
or deposit in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the obligation of another, (b)
the obligation to make take-or-pay or similar payments if required regardless of
non-performance by any other party or parties to an agreement, and (c) any
liability of such Person for the obligation of another through any agreement
(contingent or otherwise) (1) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for the payment or
discharge of such
obligation (whether in the form of loans, advances, stock purchases, capital
contributions or otherwise) or (2) to maintain the solvency or any balance sheet
item, level of income or financial condition of another if, in the case of any
agreement described under subclauses (1) or (2) of this sentence, the primary
purpose or intent thereof is as described in the preceding sentence. The amount
of any Contingent Obligation shall be equal to the amount of the obligation so
guaranteed or otherwise supported or, if less, the amount to which such
Contingent Obligation is specifically limited.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Security issued by that Person or of any Material Contract 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.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency
swap agreement, futures contract, option contract, synthetic cap or other
similar agreement or arrangement to which Borrower or any of its Subsidiaries is
a party.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook,
brokerage or similar account maintained with a Person or securities intermediary
engaged in the business of banking, including a savings bank, savings and loan
association, credit union or trust company.
"DOLLARS" and the sign "$" mean the lawful money of the United
States of America.
"ELIGIBLE ACCOUNTS RECEIVABLE" means, as at any date of
determination, the total face amount of those invoiced Accounts of Borrower and
the Subsidiary Guarantors consisting of ordinary trade accounts receivable owned
by Borrower and the Subsidiary Guarantors, payable in Cash in Dollars on
delivery or at a future date and arising out of the final sale of Inventory or
the provision of services in the ordinary course of business of Borrower and the
Subsidiary Guarantors; PROVIDED that in determining the eligibility of Eligible
Accounts Receivable for Borrower and the Subsidiary Guarantors, there shall be
excluded (to the extent included above):
(i) Accounts with respect to which more than 120 days have
elapsed since the invoice date;
(ii) Accounts with respect to which the Account debtor is a
director, officer, shareholder, employee or an Affiliate of Borrower if the
terms of such Accounts are less favorable to Borrower or any such
Subsidiary than those which might be obtained at the time from a Person who
is not such a director, officer, shareholder, employee or an Affiliate;
(iii) Accounts with respect to which the Account debtor is the
United States of America or any department, agency or instrumentality
thereof, except for those Accounts as to which Borrower or any such
Subsidiary has assigned its right to payment thereof to the Administrative
Agent, and the assignment has been acknowledged pursuant to the Assignment
of Claims Act of 1940 (31 U.S.C. 3727); provided, however, if a
Government Contract to which any such Account relates is required to be
novated in accordance with applicable laws, an aggregate amount of up to
$10,000,000 of such Accounts shall not be excluded on the basis that a
valid and effective Instrument of Assignment and notice of assignment have
not been executed and delivered and an acknowledgement has not been
received;
(iv) Accounts with respect to which the Account debtor is not a
resident of the United States or Canada, unless the Account debtor has
supplied Borrower or any such Subsidiary with (a) an irrevocable commercial
letter of credit, issued by a financial institution, or (b) credit
insurance, in each case in form and substance satisfactory to the
Administrative Agent;
(v) Accounts with respect to which the Account debtor has
asserted a counterclaim, allowance, deduction, or right to set off or which
is otherwise unearned or disputed, including Accounts which reflect
"barter" activity;
(vi) Accounts with respect to which the Administrative Agent,
on behalf of Lenders and the Issuing Lender, does not have a valid, First
Priority Lien or which are not free of all Liens or other claims of all
other Persons other than Liens permitted under this Agreement;
(vii) Accounts with respect to which the Account debtor is the
subject of bankruptcy or a similar insolvency proceeding, or has made an
assignment for the benefit of creditors, whose assets have been conveyed to
a receiver or trustee, or who has failed or suspended or gone out of
business;
(viii) Accounts with respect to which the Account debtor's
obligation to pay the Account is conditional upon the Account debtor's
approval or otherwise subject to return rights with respect to the goods
purchased giving rise to any such Account (other than return rights based
on product warranties in the ordinary course of business);
(ix) Accounts which are not in full force and effect or do not
constitute legal, valid and binding obligations of the Account debtor
enforceable against the Account debtor in accordance with their terms;
(x) Accounts with respect to which the terms or conditions
prohibit or restrict assignment or collection rights;
(xi) Accounts with respect to which the Account debtor is
located in New Jersey which exceed, individually or in the aggregate,
$150,000, unless Borrower or such Subsidiary has filed, or is exempt from
filing, a Notice of Business Activities Report with the New Jersey Division
of Taxation for the then current year;
(xii) Accounts with respect to which the Account debtor is a
supplier or a creditor of Borrower or any of its Subsidiaries up to an
amount equal to the amount owed by Borrower and its Subsidiaries to such
Account debtor;
(xiii) Accounts evidenced by notes, chattel paper or other
instruments, unless such notes, chattel paper or instruments (a) have been
delivered to and are in the possession of the Administrative Agent, or (b)
the aggregate amount of such Accounts is not greater than $50,000;
(xiv) Accounts (if any) created in connection with any sale where
payment is due on delivery of Inventory sold; and
(xv) Accounts which fail to meet such other specifications and
requirements as may from time to time to be established by the
Administrative Agent in its reasonable discretion.
"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,
lease financing companies and investment funds and any Approved Funds; (B) a
Lender, an Affiliate of a Lender, or an Approved Fund; or (C) any other Person
(other than a natural Person) approved by (1) Administrative Agent, (2) in the
case of any assignment of a Revolving Loan, Issuing Lender, and (3) unless (x)
such Person is taking delivery of an assignment in connection with physical
settlement of a credit derivatives transaction, or (y) an Event of Default or
Potential Event of Default has occurred and is continuing, Borrower (each such
approval not to be unreasonably withheld or delayed); PROVIDED that no Affiliate
of Borrower and no Person who owns Capital Stock of Holdings shall be an
Eligible Assignee. If the consent of Borrower to an assignment to an Eligible
Assignee is required hereunder (including a consent to an assignment which does
not meet the minimum assignment thresholds specified in subsection 10.1B(i)),
Borrower shall be deemed to have given its consent five Business Days after the
date notice thereof has been delivered by the assigning Lender (through
Administrative Agent) unless such consent is expressly refused by Borrower prior
to such fifth Business Day.
"ELIGIBLE INVENTORY" means, as at any date of determination, the
gross dollar value (valued at the lower of cost (on a "first-in, first-out"
basis) or fair market value) of all Inventory owned by Borrower and the
Subsidiary Guarantors, less appropriate reserves determined in accordance with
GAAP applied on a consistent basis; PROVIDED that in determining the eligibility
of Eligible Inventory for Borrower and the Subsidiary Guarantors, there shall be
excluded (to the extent included above):
(i) Inventory with respect to which the Administrative Agent,
on behalf of Lenders and the Issuing Lender, does not have a valid, First
Priority Lien or which are
not free of all Liens or other claims of all other Persons other than
Liens permitted under this Agreement;
(ii) Inventory that fails to meet standards for sale or use
imposed by Government Authorities having a regulatory authority over such
Inventory or its use or sale,
(iii) Inventory that is not useable for saleable at prices
approximating their cost (after taking into account, without duplication,
the amount of any reserves for obsolescence, unsaleability or decline in
value),
(iv) Inventory that is not in the possession and control of
Borrower or a Subsidiary Guarantor (including a common carrier under a
▇▇▇▇ of lading in such Person's name), and if located in a warehouse or
other facility leased by Borrower or any of the Subsidiary Guarantors, the
warehouseman or lessor has not delivered to Administrative Agent a lien
waiver or subordination in such form, if any, as may be requested by the
Administrative Agent, and
(v) Inventory consisting of materials, supplies and work in
process.
"ELIGIBLE UNBILLED ACCOUNTS RECEIVABLE" means all Accounts from
Government Contracts or a prime contractor on a Government Contract that would
otherwise be Eligible Accounts Receivables and with respect to which the sale of
Inventory has occurred or the rendering of services has been performed and the
payment obligations therefore are due and owing but which have not yet been
invoiced in the ordinary course of business.
"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
Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates.
"ENVIRONMENTAL CLAIM" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any Government Authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law, (ii) in connection with any
Hazardous Materials or any actual or alleged Hazardous Materials Activity, or
(iii) in connection with any actual or alleged damage, injury, threat or harm to
health, safety, natural resources or the environment.
"ENVIRONMENTAL LAWS" means any and all current or future statutes,
ordinances, orders, rules, regulations, guidance documents, judgments,
Governmental Authorizations, or any other requirements of any Government
Authority relating to (i) environmental matters, including those relating to any
Hazardous Materials Activity, (ii) the generation, use, storage, transportation
or disposal of Hazardous Materials, or (iii) occupational safety and health,
industrial hygiene, land use or the protection of human, plant or animal health
or welfare, in any manner applicable to Borrower or any of its Subsidiaries or
any Facility, including the Comprehensive Environmental Response, Compensation,
and Liability Act (42 U.S.C. Section 9601 ET
SEQ.), the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 ET
SEQ.), the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 ET
SEQ.), the Federal Water Pollution Control Act (33 U.S.C. Section 1251 ET SEQ.),
the Clean Air Act (42 U.S.C. Section 7401 ET SEQ.), the Toxic Substances Control
Act (15 U.S.C. Section 2601 ET SEQ.), the Federal Insecticide, Fungicide and
Rodenticide Act (7 U.S.C. Section 136 ET SEQ.), the Occupational Safety and
Health Act (29 U.S.C. Section 651 ET SEQ.), the Oil Pollution Act (33 U.S.C.
Section 2701 ET SEQ.) and the Emergency Planning and Community Right-to-Know Act
(42 U.S.C. Section 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.
"EXCLUDED A/R" means those accounts receivable of RAC in an
aggregate sum not to exceed $47,000,000 which are being retained by Parent as
"Retained Receivables" pursuant to Section 5.14 of the Combination Agreement,
all of which are described on Schedule 7.10B as of May 25, 2001, as such
Schedule 7.10B may be updated on or before the date that is seven Business Days
after the Closing Date by written notice delivered by Borrower to Administrative
Agent.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA AFFILIATE" means, as applied to any Person (i) any
corporation that 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) that 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.
"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 Borrower, 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
might constitute grounds under ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (vi) the imposition of liability
on Borrower, 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 Borrower, any of its Subsidiaries or any of their respective ERISA
Affiliates in a complete or partial withdrawal (within the meaning of Sections
4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential
liability therefor, or the receipt by Borrower, any of its Subsidiaries or any
of their respective ERISA Affiliates of notice from any Multiemployer Plan that
it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA,
or that it intends to terminate or has terminated under Section 4041A or 4042 of
ERISA; (viii) the occurrence of an act or omission which would give rise to the
imposition on Borrower, any of its Subsidiaries or any of their respective ERISA
Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the
Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or
Section 4071 of ERISA in respect of any Employee Benefit Plan any of which would
constitute a Material Adverse Effect; (ix) the assertion of a material claim
(other than routine claims for benefits) against any Employee Benefit Plan other
than a Multiemployer Plan or the assets thereof, or against Borrower, any of its
Subsidiaries or any of their respective ERISA Affiliates in connection with any
Employee Benefit Plan; (x) receipt from the Internal Revenue Service of final
determination 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 which cannot be
remedied; or (xi) the imposition of a Lien pursuant to Section 401(a)(29) or
412(n) of the Internal Revenue Code or pursuant to ERISA with respect to any
Pension Plan.
"EVENT OF DEFAULT" means each of the events set forth in
Section 8.
"EXCHANGE ACT" means the Securities Exchange Act of 1934.
"FACILITIES" means all real property (including all buildings,
fixtures or other improvements located thereon) now, hereafter or heretofore
owned, leased, operated or used by Borrower or any of its Subsidiaries or any of
their respective predecessors or Affiliates.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of
New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by Administrative Agent from three Federal funds
brokers of recognized standing selected by Administrative Agent.
"FINANCIAL PLAN" has the meaning assigned to that term in
subsection 6.1(xii).
"FIRST PRIORITY" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that (i) such
Lien is perfected and has priority over any other Lien on such Collateral (other
than Permitted Encumbrances) and (ii) such Lien is the only Lien (other than
Liens permitted pursuant to subsection 7.2A) to which such Collateral is
subject.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Borrower and its
Subsidiaries ending on December 31 of each calendar year.
"FLOOD HAZARD PROPERTY" means a Additional Mortgaged Property or
an Additional Mortgaged Property located in an area designated by the Federal
Emergency Management Agency as having special flood or mud slide hazards.
"FUND" means any Person (other than a natural Person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business.
"FUNDED DEBT", as applied to any Person, means all Indebtedness of
that Person (including any current portions thereof) which by its terms or by
the terms of any instrument or agreement relating thereto matures more than one
year from, or is directly renewable or extendable at the option of that Person
to a date more than one year from (including an option of that Person under a
revolving credit or similar agreement obligating the lender or lenders to extend
credit over a period of one year or more from), the date of the creation
thereof.
"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.
"GOVERNING BODY" means the board of directors or other body having
the power to direct or cause the direction of the management and policies of a
Person that is a corporation, partnership, trust or limited liability company.
"GOVERNMENT AUTHORITY" means any political subdivision or
department thereof, any other governmental or regulatory body, commission,
central bank, board, bureau, organ or instrumentality or any court, in each case
whether federal, state, local or foreign.
"GOVERNMENTAL AUTHORIZATION" means any permit, license,
registration, authorization, plan, directive, consent, order or consent decree
of or from, or notice to, any Government Authority.
"GOVERNMENT CONTRACT" means any contract entered into between
Borrower or any of its Subsidiaries and the government of the United States of
America, the District of Columbia, any foreign governmental entity, or any
department, agency or instrumentality thereof.
"GUARANTIES" means the Holdings Guaranty and the Subsidiary
Guaranty.
"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 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 Government Authority or which poses a hazard to the health and
safety of the owners, occupants or any Persons in the vicinity of any Facility
or to the indoor or outdoor environment.
"HAZARDOUS MATERIALS ACTIVITY" means any past, current, proposed
or threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"HEDGE AGREEMENT" means an Interest Rate Agreement or a Currency
Agreement designed to hedge against fluctuations in interest rates or currency
values, respectively.
"HOLDINGS" has the meaning given such term in the Recitals.
"HOLDINGS GUARANTY" means the Holdings Guaranty executed and
delivered by Holdings on the Closing Date, substantially in the form of EXHIBIT
XVIII annexed hereto.
"INDEBTEDNESS", as applied to any Person, means, without
duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made without regard
to any original issue discount relating thereto, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to
property purchased by such Person (other than customary reservations or
retentions of title under agreements with suppliers entered into in the ordinary
course of business), (d) all obligations of such Person issued or assumed as the
deferred purchase price of property or services purchased by such Person (other
than trade debt incurred in the ordinary course of business and due within six
months of the incurrence thereof) which would appear as liabilities on a balance
sheet of such Person, (e) all obligations of such Person under take-or-pay or
similar arrangements or under commodities agreements, (f) all indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on, or payable out of
the proceeds of production from, property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed, (g) all
Contingent Obligations of such Person with respect to Indebtedness of another
Person, (h) the principal portion of all obligations of such Person under
Capital Leases, (i) all obligations of such Person under Hedge Agreements, (j)
the maximum amount of all letters of credit issued or bankers' acceptances
facilities created for the account of such Person and, without duplication, all
drafts drawn thereunder (to the extent unreimbursed), (k) all preferred Capital
Stock issued by such Person and which by the terms thereof could be (at the
request of the holders thereof or otherwise) subject to mandatory sinking fund
payments, redemption or other acceleration, (l) the principal balance
outstanding under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product, and (m)
the Indebtedness of any partnership or unincorporated joint venture in which
such Person is a general partner or a joint venturer, but not including any
Indebtedness payable to the United States Armed Forces. Obligations under
Interest Rate Agreements and Currency Agreements constitute (1) in the case of
Hedge Agreements, Contingent Obligations, and (2) in all other cases,
Investments, and in neither case constitute Indebtedness.
"INDEMNITEE" has the meaning assigned to that term in subsection
10.3.
"INSTRUMENT OF ASSIGNMENT" means an Instrument of Assignment
executed and delivered by Borrower on the Closing Date and from time to time
thereafter, substantially in the form of EXHIBIT XXII annexed hereto.
"INTELLECTUAL PROPERTY" means all patents, patent rights, patent
applications, licenses, inventions, trade secrets, trademarks, tradenames,
service marks, copyrights, technology, software, know-how and proprietary
techniques (including processes and substances) used in or necessary for the
conduct of the business of Borrower and its Subsidiaries as currently conducted
that are material to the condition (financial or otherwise), business or
operations of Borrower and its Subsidiaries, taken as a whole.
"INTEREST PAYMENT DATE" means (i) with respect to any Base Rate
Loan, the last Business Day of each March, June, September and December of each
year, commencing on the first such date to occur after the Closing Date, and
(ii) with respect to any LIBOR Loan, the last day of each Interest Period
applicable to such Loan; PROVIDED that in the case of each Interest Period of
six months "Interest Payment Date" shall also include the date that is three
months after the commencement of such Interest Period.
"INTEREST PERIOD" has the meaning assigned to that term in
subsection 2.2B.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement to which Borrower or any of its Subsidiaries is a
party.
"INTEREST RATE DETERMINATION DATE", with respect to any Interest
Period, means the second Business Day prior to the first day of such Interest
Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986,
as amended to the date hereof and from time to time hereafter, and any successor
statute.
"INVENTORY" means, with respect to any Person as of any date of
determination, all goods, merchandise and other personal property which are then
held by such Person for sale or lease, including raw materials and work in
process.
"INVESTMENT" means (i) any direct or indirect purchase or other
acquisition by Borrower or any of its Subsidiaries of, or of a beneficial
interest in, any Securities of any other Person (including any Subsidiary of
Borrower), (ii) any direct or indirect redemption, retirement, purchase or other
acquisition for value, by any Subsidiary of Borrower from any Person other than
Borrower or any of its Subsidiaries, of any equity Securities of such
Subsidiary, (iii) any direct or indirect loan, advance (other than advances to
employees for moving, entertainment and travel expenses, drawing accounts and
similar expenditures in the ordinary course of business) or capital contribution
by Borrower or any of its Subsidiaries to any other Person (other than a
wholly-owned Subsidiary of Borrower), including all indebtedness and accounts
receivable from that other Person that are not current assets or did not arise
from sales to that other Person in the ordinary course of business, or (iv)
Interest Rate Agreements or Currency Agreements not constituting Hedge
Agreements. The amount of any Investment shall be the original cost of such
Investment PLUS the cost of all additions thereto, without any adjustments for
increases or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment (other than adjustments for the repayment of, or the
refund of capital with respect to, the original principal amount of any such
Investment).
"IP COLLATERAL" means, collectively, the Collateral consisting of
rights in or to Intellectual Property under the Security Agreement.
"ISSUING LENDER" means, with respect to any Letter of Credit, the
Lender who agrees or is otherwise obligated to issue such Letter of Credit,
determined as provided in subsection 3.1B(iii).
"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.
"LANDLORD CONSENT AND ESTOPPEL" means, with respect to any
Leasehold Property, a letter, certificate or other instrument in writing from
the lessor under the related lease, satisfactory in form and substance to
Administrative Agent, pursuant to which such lessor agrees, for the benefit of
Administrative Agent, (i) that without any further consent of such lessor or any
further action on the part of the Loan Party holding such Leasehold Property,
such Leasehold Property may be encumbered pursuant to a Mortgage and may be
assigned to the purchaser at a foreclosure sale or in a transfer in lieu of such
a sale (and to a subsequent third
party assignee if Administrative Agent, any Lender, or an Affiliate of either so
acquires such Leasehold Property), (ii) that such lessor shall not terminate
such lease as a result of a default by such Loan Party thereunder without first
giving Administrative Agent notice of such default and at least 60 days (or, if
such default cannot reasonably be cured by Administrative Agent within such
period, such longer period as may reasonably be required) to cure such default,
(iii) to the matters contained in a Collateral Access Agreement, and (iv) to
such other matters relating to such Leasehold Property as Administrative Agent
may reasonably request.
"LC REIMBURSEMENT AMOUNT" has the meaning given such term in
subsection 3.3B.
"LEAD ARRANGER" has the meaning assigned to that term in the
introduction to this Agreement.
"LEASEHOLD PROPERTY" means any leasehold interest of any Loan
Party as lessee under any lease of real property, other than any such leasehold
interest designated from time to time by Administrative Agent in its sole
discretion as not being required to be included in the Collateral.
"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, and the term
"Lenders" shall include Swing Line Lender unless the context otherwise requires;
PROVIDED that the term "Lenders", when used in the context of a particular
Commitment, shall mean Lenders having that Commitment.
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means any standby letter
of credit or similar instrument issued for the purpose of supporting (i)
Indebtedness of Borrower or any of its Subsidiaries in respect of industrial
revenue or development bonds or financings, (ii) workers' compensation
liabilities of Borrower or any of its Subsidiaries, (iii) the obligations of
third party insurers of Borrower or any of its Subsidiaries arising by virtue of
the laws of any jurisdiction requiring third party insurers, (iv) obligations
with respect to Capital Leases or Operating Leases of Borrower or any of its
Subsidiaries, and (v) performance, payment, deposit or surety obligations of
Borrower or any of its Subsidiaries, in any case if required by law or
governmental rule or regulation or in accordance with custom and practice in the
industry; PROVIDED that Letters of Credit may not be issued for the purpose of
supporting (a) trade payables or (b) any Indebtedness constituting "antecedent
debt" (as that term is used in Section 547 of the Bankruptcy Code).
"LETTER OF CREDIT USAGE" means, as at any date of determination,
the sum of (i) the maximum aggregate amount which is or at any time thereafter
may become available for drawing under all Letters of Credit then outstanding
PLUS (ii) the aggregate amount of all drawings under Letters of Credit honored
by Issuing Lenders and not theretofore reimbursed out of the proceeds of
Revolving Loans pursuant to subsection 3.3B or otherwise reimbursed by Borrower.
"LIBOR LOANS" means Loans bearing interest at rates determined by
reference to Adjusted LIBOR as provided in subsection 2.2A.
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"LOAN" or "LOANS" means one or more of the Tranche A Term Loans,
Tranche B Term Loans, Revolving Loans or Swing Line Loans or any combination
thereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Letters of
Credit (and any applications for, or reimbursement agreements or other documents
or certificates executed by Borrower in favor of an Issuing Lender relating to,
the Letters of Credit), the Guaranties and the Collateral Documents.
"LOAN PARTY" means each of Holdings, Borrower and any of
Borrower's Subsidiaries from time to time executing a Loan Document, and "LOAN
PARTIES" means all such Persons, collectively.
"MAINTENANCE CAPITAL EXPENDITURES" means any Consolidated Capital
Expenditures by Borrower or any of its Subsidiaries that are made to maintain,
restore or refurbish the condition or usefulness of property of Borrower or any
of its Subsidiaries, or otherwise to support the continuation of such Person's
day-to-day operations as then conducted, but that are not properly chargeable to
repairs and maintenance in accordance with GAAP.
"MARGIN DETERMINATION CERTIFICATE" means an Officers' Certificate
of Borrower delivered (a) with respect to each Fiscal Quarter (other than each
fourth Fiscal Quarter), together with the three most recent financial statements
required pursuant to subsection 6.1(ii), and (b) with respect to each fourth
Fiscal Quarter, within 45 days of the last day of such fourth Fiscal Quarter,
setting forth in reasonable detail the Consolidated Total Leverage Ratio that is
applicable as of the last day of the fiscal period for which such financial
statements and Officers' Certificate are being delivered.
"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 any act, omission, situation,
circumstance, event or undertaking which could reasonably be expected to have,
singly or in any combination with one or more other acts, omissions, situations,
circumstances, events or undertakings, a materially adverse effect upon (a) the
business, assets, properties, liabilities, condition (financial or otherwise),
results of operations or business prospects of Borrower and its Subsidiaries
taken as a whole, (b) the value of the whole or any material part of the
Collateral, or the enforceability or priority of the security interest in the
Collateral, (c) the respective ability of Borrower or any of the other Loan
Parties to perform any obligations under this Agreement or any other Loan
Document to which it is a party, or (d) the legality, validity, binding effect,
enforceability or
admissibility into evidence of any Loan Document or the rights or remedies of
Administrative Agent or Lenders under or in connection with any Loan Document.
"MATERIAL CONTRACT" means any contract, indenture, mortgage, deed
of trust, undertaking, agreement, instrument or other arrangement, whether
written or oral, (a) having annual revenues in excess of $10,000,000, if
Borrower or any of its Subsidiaries is a provider of services, and (b) having
remaining payments in excess of $1,000,000, if Borrower or any of its
Subsidiaries is the recipient of services, inventory, materials or other goods.
"MATERIAL LEASEHOLD PROPERTY" means a Leasehold Property
reasonably determined by Administrative Agent to be of material value as
Collateral or of material importance to the operations of Borrower or any of its
Subsidiaries; PROVIDED, HOWEVER that, excepting any such Leasehold Properties
set forth on SCHEDULE 4.1M annexed hereto, no Leasehold Property with respect to
which the aggregate amount of all rents payable during any one Fiscal Year never
exceeds $500,000 shall be a "Material Leasehold Property".
"MINIMUM AMOUNT" means, with respect to each of the following
actions, the minimum amount and any multiples in excess thereof set forth
opposite such action:
MINIMUM MULTIPLES IN
TYPE OF ACTION AMOUNT EXCESS THEREOF
------------------------------- ---------- --------------
Conversion into Base Rate Loans $ 150,000 $ 50,000
Conversion into LIBOR Loans $2,000,000 $100,000
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MORTGAGE" means (i) a security instrument (whether designated as
a deed of trust or a mortgage or by any similar title) executed and delivered by
any Loan Party, substantially in the form of EXHIBIT XVII annexed hereto or in
such other form as may be approved by Administrative Agent in its sole
discretion, in each case with such changes thereto as may be recommended by
Administrative Agent's local counsel based on local laws or customary local
mortgage or deed of trust practices, or (ii) at Administrative Agent's option,
in the case of an Additional Mortgaged Property, an amendment to an existing
Mortgage, in form satisfactory to Administrative Agent, adding such Additional
Mortgaged Property to the Real Property Assets encumbered by such existing
Mortgage. "MORTGAGES" means all such instruments, including the Additional
Mortgages.
"MULTIEMPLOYER PLAN" means any Employee Benefit Plan that is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset Sale,
Cash payments (including any Cash received by way of deferred payment pursuant
to, or by
monetization of, a note receivable or otherwise, but only as and when so
received) received from such Asset Sale, net of any bona fide direct costs
incurred in connection with such Asset Sale, including (i) income taxes
reasonably estimated to be actually payable within two years of the date of such
Asset Sale as a result of any gain recognized in connection with such Asset Sale
and (ii) payment of the outstanding principal amount of, premium or penalty, if
any, and interest on any Indebtedness (other than the Loans) that is secured by
a Lien on the stock or assets in question and that is required to be repaid
under the terms thereof as a result of such Asset Sale. For purposes of this
definition, the amount described in clause (i) shall include tax advance
payments made by Borrower to Holdings as provided in Section 5.3 of the Amended
and Restated Limited Liability Company Agreements of Holdings, as in effect on
the date hereof, that are reasonably estimated to be actually payable within two
years of the date of such Asset Sale as a result of any gain recognized in
connection with such Asset Sale.
"NET INSURANCE/CONDEMNATION PROCEEDS" means any Cash payments or
proceeds received by Borrower or any of its Subsidiaries (i) under any business
interruption or casualty insurance policy in respect of a covered loss
thereunder or (ii) as a result of the taking of any assets of Borrower or any of
its Subsidiaries by any Person pursuant to the power of eminent domain,
condemnation or otherwise, or pursuant to a sale of any such assets to a
purchaser with such power under threat of such a taking, in each case net of any
actual and reasonable documented costs incurred by Borrower or any of its
Subsidiaries in connection with the adjustment or settlement of any claims of
Borrower or such Subsidiary in respect thereof.
"NET PENSION PROCEEDS" has the meaning given such term in
subsection 2.4B(iii)(c).
"NET PROCEEDS AMOUNT" has the meaning given such term in
subsection 2.4B(iii)(g).
"NET SECURITIES PROCEEDS" means the Cash proceeds (net of
underwriting discounts and commissions and other reasonable costs and expenses
associated therewith, including reasonable legal fees and expenses) from the (i)
issuance of Capital Stock of or incurrence of Indebtedness by Holdings, Borrower
or any of its Subsidiaries and (ii) capital contributions made by a holder of
Capital Stock of Borrower.
"NON-US LENDER" has the meaning assigned to that term in
subsection 2.7B(iii)(a).
"NOTES" means one or more of the Tranche A Term Notes, Tranche B
Term Notes, Revolving Notes or Swing Line Note or any combination thereof.
"NOTICE OF BORROWING" means a notice substantially in the form of
EXHIBIT I annexed hereto delivered by Borrower to Administrative Agent pursuant
to subsection 2.1B with respect to a proposed borrowing.
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially
in the form of EXHIBIT II annexed hereto delivered by Borrower to Administrative
Agent pursuant to
subsection 2.2D with respect to a proposed conversion or continuation of the
applicable basis for determining the interest rate with respect to the Loans
specified therein.
"NOTICE OF ISSUANCE OF LETTER OF CREDIT" means a notice
substantially in the form of EXHIBIT III annexed hereto delivered by Borrower to
Administrative Agent pursuant to subsection 3.1B(i) with respect to the proposed
issuance of a Letter of Credit.
"OBLIGATIONS" means all obligations of every nature of each Loan
Party from time to time owed to Administrative Agent, Lenders or any of them
under the Loan Documents whether for principal, interest, reimbursement of
amounts drawn under Letters of Credit, fees, expenses, indemnification or
otherwise, whether contingent, direct or otherwise, including post-petition
interest on such amounts accruing subsequent to, and interest that would have
accrued but for, the commencement of a proceeding under the Bankruptcy Code
(whether or not such interest is allowed as a claim in such proceeding).
"OFFICER" means the president, chief executive officer, a vice
president, chief financial officer, treasurer, general partner (if an
individual), managing member (if an individual) or other individual appointed by
the Governing Body or the Organizational Documents of a corporation,
partnership, trust or limited liability company to serve in a similar capacity
as the foregoing.
"OFFICER'S CERTIFICATE," as applied to any Person that is a
corporation, partnership, trust or limited liability company, means a
certificate executed on behalf of such Person by one or more Officers of such
Person or one or more Officers of a general partner or a managing member if such
general partner or managing member is a corporation, partnership, trust or
limited liability company; PROVIDED that every Officers' Certificate with
respect to the compliance with a condition precedent to the making of any Loans
hereunder shall include (i) a statement that the Officer or Officers making or
giving such Officers' Certificate have read such condition and any definitions
or other provisions contained in this Agreement relating thereto, (ii) a
statement that, in the opinion of the signers, they have made or have caused to
be made such examination or investigation as is reasonably necessary to enable
them to express an informed opinion as to whether or not such condition has been
complied with, and (iii) a statement as to whether, in the opinion of the
signers, such condition has been complied with.
"OPERATING LEASE", as applied to any Person, means any lease
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) that is not a Capital Lease other
than any such lease under which that Person is the lessor.
"ORGANIZATIONAL DOCUMENTS" means the documents (including Bylaws,
if applicable) pursuant to which a Person that is a corporation, partnership,
trust or limited liability company is organized.
"PARTICIPANT" means a purchaser of a participation in the rights
and obligations under this Agreement pursuant to subsection 10.1C.
"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 ENCUMBRANCES" means the following types of Liens
(excluding any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or by ERISA, any such Lien relating to or imposed in
connection with any Environmental Claim, and any such Lien expressly prohibited
by any applicable terms of any of the Collateral Documents):
(i) Liens for taxes, assessments or governmental charges or
claims the payment of which is not, at the time, required by
subsection 6.3A or which are being contested in good faith by
appropriate proceedings, PROVIDED that adequate reserves with
respect thereto are maintained on the books of Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP (or, in
the case of Subsidiaries with significant operations outside of
the United States of America, generally accepted accounting
principles in effect from time to time in their respective
jurisdictions of incorporation);
(ii) statutory Liens of landlords, statutory Liens and rights of
set-off of banks, statutory Liens of carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens
imposed by law, in each case incurred in the ordinary course of
business (a) for amounts which are not overdue for a period of
more than 60 days or (b) for amounts that are overdue and that (in
the case of any such amounts overdue for a period in excess of 5
days) are being contested in good faith by appropriate
proceedings, so long as (1) such reserves or other appropriate
provisions, if any, as shall be required by GAAP shall have been
made for any such contested amounts, and (2) in the case of a Lien
with respect to any portion of the Collateral, such contest
proceedings conclusively operate to stay the sale of any portion
of the Collateral on account of such Lien, and the aggregate
amount of such Liens is less than $75,000;
(iii) Liens incurred or deposits in an aggregate amount not to
exceed $75,000 made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and
other types of social security, so long as no foreclosure, sale or
similar proceedings have been commenced with respect to any
portion of the Collateral on account thereof;
(iv) Deposits in an aggregate amount not to exceed $75,000 made
in the ordinary course of business or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, trade contracts, performance and
return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(v) any attachment or judgment Lien not constituting an Event
of Default under subsection 8.8;
(vi) leases or subleases granted to third parties in accordance
with any applicable terms of the Collateral Documents and not
interfering in any material respect with the ordinary conduct of
the business of Borrower or any of its Subsidiaries or resulting
in a material diminution in the value of any Collateral as
security for the Obligations;
(vii) easements, rights-of-way, restrictions, encroachments, and
other minor defects or irregularities in title, in each case which
do not and will not interfere in any material respect with the
ordinary conduct of the business of Borrower or any of its
Subsidiaries or result in a material diminution in the value of
any Collateral as security for the Obligations;
(viii) any (a) interest or title of a lessor or sublessor under
any lease not prohibited by this Agreement, (b) restriction or
encumbrance that the interest or title of such lessor or sublessor
may be subject to, or (c) subordination of the interest of the
lessee or sublessee under such lease to any restriction or
encumbrance referred to in the preceding clause (b), so long as
the holder of such restriction or encumbrance agrees to recognize
the rights of such lessee or sublessee under such lease; and
(ix) Liens arising from filing UCC financing statements relating
solely to leases not prohibited by this Agreement;
"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 PREFERRED INTEREST" has the meaning given such term in the
Recitals.
"PIK INTEREST" means the 3% payment in kind interest due June 30,
2008 with respect to the Subordinated Notes.
"PLEDGED COLLATERAL" means, collectively, the "Pledged Collateral"
as defined in the Security Agreement.
"POST-CLOSING DATE COLLATERAL ACCESS PROPERTY" has the meaning
assigned to that term in subsection 6.9D.
"POST-CLOSING DATE COLLATERAL ACCESS AGREEMENTS" has the meaning
assigned to that term in subsection 6.9D.
"POTENTIAL EVENT OF DEFAULT" means a condition or event that,
after notice or lapse of time or both, would constitute an Event of Default.
"PROCEEDINGS" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration.
"PRO RATA SHARE" means (i) with respect to all payments,
computations and other matters relating to the Tranche A Term Loan Commitment or
the Tranche A Term Loan of any Lender, the percentage obtained by DIVIDING (x)
the Tranche A Term Loan Exposure of that Lender BY (y) the aggregate Tranche A
Term Loan Exposure of all Lenders; (ii) with respect to all payments,
computations and other matters relating to the Tranche B Term Loan Commitment or
the Tranche B Term Loan of any Lender, the percentage obtained by DIVIDING (x)
the Tranche B Term Loan Exposure of that Lender BY (y) the aggregate Tranche B
Term Loan Exposure of all Lenders; (iii) with respect to all payments,
computations and other matters relating to the Revolving Loan Commitment or the
Revolving Loans of any Lender or any Letters of Credit issued or participations
therein purchased by any Lender or any assignments of any Swing Line Loans
purchased by any Lender, the percentage obtained by DIVIDING (x) the Revolving
Loan Exposure of that Lender BY (y) the aggregate Revolving Loan Exposure of all
Lenders; and (iv) for all other purposes with respect to each Lender, the
percentage obtained by DIVIDING (x) the sum of the Tranche A Term Loan Exposure,
the Tranche B Term Loan Exposure and the Revolving Loan Exposure of that Lender
BY (y) the sum of the aggregate Tranche A Term Loan Exposure, Tranche B Term
Loan Exposure and Revolving Loan Exposure of all Lenders, in any such case as
the applicable percentage may be adjusted by assignments permitted pursuant to
subsection 10.1.
"PTO" means the United States Patent and Trademark Office or any
successor or substitute office in which filings are necessary or, in the opinion
of Administrative Agent, desirable in order to create or perfect Liens on any IP
Collateral.
"RAC" has the meaning assigned to that term in the Recitals to
this Agreement.
"REAL PROPERTY ASSET" means, at any time of determination, any
interest then owned by any Loan Party in any real property.
"RECORDED LEASEHOLD INTEREST" means a Leasehold Property with
respect to which a Record Document (as hereinafter defined) has been recorded in
all places necessary or desirable, in Administrative Agent's reasonable
judgment, to give constructive notice of such Leasehold Property to third-party
purchasers and encumbrancers of the affected real property. For purposes of this
definition, the term "RECORD DOCUMENT" means, with respect to any Leasehold
Property, (a) the lease evidencing such Leasehold Property or a memorandum
thereof, executed and acknowledged by the owner of the affected real property,
as lessor, or (b) if such Leasehold Property was acquired or subleased from the
holder of a Recorded Leasehold Interest, the applicable assignment or sublease
document, executed and acknowledged by such holder, in each case in form
sufficient to give such constructive notice upon recordation and otherwise in
form reasonably satisfactory to Administrative Agent.
"REFERENCE RATE" means the rate that CIBC announces from time to
time as its prime lending rate, as in effect from time to time. The Reference
Rate is a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer. CIBC or any other Lender may make
commercial loans or other loans at rates of interest at, above or below the
Reference Rate.
"REFUNDED SWING LINE LOANS" has the meaning assigned to that term
in subsection 2.1A(iv)(b).
"REGISTER" has the meaning assigned to that term in subsection
2.1D(i).
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"REIMBURSEMENT DATE" has the meaning assigned to that term in
subsection 3.3B.
"RELATED AGREEMENTS" means, collectively, the Combination
Agreement, the Subordinated Note Agreement, the Unitholders Agreement (as such
term is defined in the Subordinated Note Agreement), the Ancillary Agreements
(as such term is defined in the Combination Agreement) and the Amended and
Restated Limited Liability Company Agreement of Holdings.
"RELEASE" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of Hazardous Materials into the indoor or outdoor
environment (including the abandonment or disposal of any barrels, containers or
other closed receptacles containing any Hazardous Materials), including the
movement of any Hazardous Materials through the air, soil, surface water or
groundwater.
"REQUISITE LENDERS" means Lenders having or holding more than 50%
of the sum of the aggregate Tranche A Term Exposures, Tranche B Term Loan
Exposures and Revolving Loan Exposures of all Lenders.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of Borrower Membership Interests or
any Capital Stock of any class of Capital Stock of Holdings now or hereafter
outstanding, except a dividend payable solely in shares of that class of stock
to the holders of that class, (ii) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect, of
any Borrower Membership Interests or any Capital Stock of any class of Capital
Stock of Holdings now or hereafter outstanding, (iii) any payment made to
retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire Borrower Membership Interests or Capital Stock of
Holdings now or hereafter outstanding, and (iv) any payment or prepayment of
principal of, premium, if any, or interest on, or redemption, purchase,
retirement, defeasance (including in-substance or legal defeasance), sinking
fund or similar payment with respect to, the Subordinated Notes or any other
Subordinated Indebtedness.
"REVOLVING LOAN COMMITMENT" means the commitment of a Lender to
make Revolving Loans to Borrower pursuant to subsection 2.1A(iii), and
"REVOLVING LOAN COMMITMENTS" means such commitments of all Lenders in the
aggregate. The Revolving Loan Commitments shall be recorded by Administrative
Agent in the Register.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" means June 30, 2006.
"REVOLVING LOAN EXPOSURE" means, with respect to any Lender, as of
any date of determination (i) prior to the termination of the Revolving Loan
Commitments, that Lender's Revolving Loan Commitment, and (ii) after the
termination of the Revolving Loan Commitments, the sum of (a) the aggregate
outstanding principal amount of the Revolving Loans of that Lender PLUS (b) if
Lender is an Issuing Lender, the aggregate Letter of Credit Usage in respect of
all Letters of Credit issued by that Lender (in each case net of any
participations purchased by other Lenders in such Letters of Credit or in any
unreimbursed drawings thereunder) PLUS (c) the aggregate amount of all
participations purchased by that Lender in any outstanding Letters of Credit or
any unreimbursed drawings under any Letters of Credit PLUS (d) in the case of
Swing Line Lender, the aggregate outstanding principal amount of all Swing Line
Loans (net of any assignments thereof purchased by other Lenders) PLUS (e) the
aggregate amount of all assignments purchased by that Lender in any outstanding
Swing Line Loans.
"REVOLVING LOANS" means the Loans made by Lenders to Borrower
pursuant to subsection 2.1A(iii).
"REVOLVING NOTES" means (i) the promissory notes of Borrower
issued pursuant to subsection 2.1E on the Closing Date, and (ii) any promissory
notes issued by Borrower pursuant to the penultimate sentence of subsection
10.1B(i) in connection with assignments of the Revolving Loan Commitments and
Revolving Loans of any Lenders and any replacements thereof, in each case
substantially in the form of EXHIBIT VII annexed hereto.
"S&P" means Standard & Poor's Ratings Group.
"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.
"SECURITY AGREEMENT" means the Security Agreement executed and
delivered by Holdings, Borrower and its Subsidiaries on the Closing Date,
substantially in the form of EXHIBIT XV annexed hereto.
"SPECIAL COLLATERAL ACCOUNT" has the meaning assigned to that term
in the Collateral Account Control Agreement.
"SUBORDINATION AGREEMENT" means that certain Senior Subordination
Agreement of even date herewith among Administrative Agent and the subordinate
lenders named therein.
"SOLVENT" means, with respect to any Person, that as of the date
of determination both (A) (i) the then fair saleable value of the property of
such Person is (y) greater than the total amount of liabilities (including
contingent liabilities) of such Person and (z) not less than the amount that
will be required to pay the probable liabilities on such Person's then existing
debts as they become absolute and matured considering all financing alternatives
and potential asset sales reasonably available to such Person; (ii) such
Person's capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (iii) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (B) such Person is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
"SUBORDINATED INDEBTEDNESS" means (i) the Subordinated Notes, (ii)
the PIK Preferred Interest and (iii) any Indebtedness of Borrower incurred from
time to time and subordinated in right of payment to the Obligations.
"SUBORDINATED NOTES" means the $75,000,000 in aggregate principal
amount of 16% (13% cash and 3% PIK Interest) subordinated notes issued pursuant
to the Securities Purchase Agreement.
"SUBORDINATED NOTE AGREEMENT" means the Securities Purchase
Agreement of even date herewith, pursuant to which the Subordinated Notes are
issued, as such Securities Purchase Agreement may be amended from time to time
to the extent permitted under subsection 7.5.
"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.
"SUBSIDIARY GUARANTOR" means any domestic Subsidiary of Borrower
that executes and delivers the Subsidiary Guaranty at the Closing Date and any
domestic Subsidiary
of Borrower that executes and delivers a counterpart of the Subsidiary Guaranty
from time to time thereafter pursuant to subsection 6.8.
"SUBSIDIARY GUARANTY" means the Subsidiary Guaranty to be executed
and delivered by domestic Subsidiaries of Borrower on the Closing Date and from
time to time in accordance with subsection 6.8, substantially in the form of
EXHIBIT XIV annexed hereto.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning assigned to that
term in subsection 9.1B.
"SWING LINE LENDER" has the meaning assigned to that term in the
introduction to this Agreement and means any successor Swing Line Lender
appointed pursuant to subsection 9.5B.
"SWING LINE LENDER'S OFFICE" means (i) the office of Swing Line
Lender located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ or (ii)
such other office of Swing Line Lender as may from time to time hereafter be
designated as such in a written notice delivered by Swing Line Lender to
Borrower and each Lender.
"SWING LINE LOAN COMMITMENT" means the commitment of Swing Line
Lender to make Swing Line Loans to Borrower pursuant to subsection 2.1A(iv).
"SWING LINE LOANS" means the Loans made by Swing Line Lender to
Borrower pursuant to subsection 2.1A(iv).
"SWING LINE NOTE" means (i) any promissory note of Borrower issued
pursuant to subsection 2.1E on the Closing Date (or any replacements thereof)
and (ii) any promissory note issued by Borrower to any successor Swing Line
Lender pursuant to the last sentence of subsection 9.5B, in each case
substantially in the form of EXHIBIT VIII annexed hereto.
"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, including interest, penalties, additions to tax and any similar
liabilities with respect thereto; except that, in the case of a Lender, there
shall be excluded (1) taxes that are imposed on the overall net income or net
profits (including franchise taxes imposed in lieu thereof) (i) by the United
States, (ii) by any other Government Authority under the laws of which the
Lender is organized or has its principal office or maintains its applicable
lending office, or (iii) by any jurisdiction solely as a result of a present or
former connection between the Lender (other than any such connection arising
solely from the Lender having executed, delivered or performed its obligations
or received a payment under, or enforced any of the Loan Documents), and (2) any
branch profits taxes imposed by the United States or any similar tax imposed by
any other jurisdiction in which the Lender is located.
"TERM LOANS" means, collectively, the Tranche A Term Loans and the
Tranche B Term Loans.
"TERM LOAN NOTES" means collectively, the Tranche A Term Notes and
Tranche B Term Notes.
"13% SUBORDINATED NOTES" means the 13% (cash pay) subordinated
notes due June 30, 2008 of Borrower issued pursuant to the Subordinated Note
Agreement.
"TITLE COMPANY" means one or more other title insurance companies
reasonably satisfactory to Administrative Agent.
"TOTAL UTILIZATION OF REVOLVING LOAN COMMITMENTS" means, as at any
date of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans PLUS (ii) the aggregate principal amount of all
outstanding Swing Line Loans PLUS (iii) the Letter of Credit Usage.
"TRANCHE A TERM LOAN COMMITMENT" means the commitment of a Lender
to make a Tranche A Term Loan to Borrower pursuant to subsection 2.1A(i), and
"TRANCHE A TERM LOAN COMMITMENTS" means such commitments of all Lenders in the
aggregate.
"TRANCHE A TERM LOAN EXPOSURE" with respect to any Lender, means,
as of any date of determination (i) prior to the funding of the Tranche A Term
Loans, that Lender's Tranche A Term Loan Commitment, and (ii), after the funding
of the Tranche A Term Loans, the outstanding principal amount of the Tranche A
Term Loan of that Lender.
"TRANCHE A TERM LOANS" means the Loans made by Lenders to Borrower
pursuant to subsection 2.1A(i).
"TRANCHE A TERM NOTES" means (i) the promissory notes of Borrower
issued pursuant to subsection 2.1E on the Closing Date (or any replacements
thereof), and (ii) any promissory notes issued by Borrower pursuant to the
penultimate sentence of subsection 10.1B(i) in connection with assignments of
the Tranche A Loan Commitments or Tranche A Term Loans of any Lenders, in each
case substantially in the form of EXHIBIT V annexed hereto.
"TRANCHE B TERM LOAN COMMITMENT" means the commitment of a Lender
to make a Tranche B Term Loan to Borrower pursuant to subsection 2.1A(ii), and
"TRANCHE B TERM LOAN COMMITMENTS" means such commitments of all Lenders in the
aggregate.
"TRANCHE B TERM LOAN EXPOSURE" with respect to any Lender, means,
as of any date of determination (i) prior to the funding of the Tranche B Term
Loans, that Lender's Tranche B Term Loan Commitment and (ii) after the funding
of the Tranche B Term Loans, the outstanding principal amount of the Tranche B
Term Loan of that Lender.
"TRANCHE B TERM LOANS" means the Loans made by Lenders to Borrower
pursuant to subsection 2.1A(ii).
"TRANCHE B TERM NOTES" means (i) the promissory notes of Borrower
issued pursuant to subsection 2.1E on the Closing Date (or any replacements
thereof), and (ii) any promissory notes issued by Borrower pursuant to the
penultimate sentence of subsection 10.1B(i)
in connection with assignments of the Tranche B Loan Commitments or Tranche B
Term Loans of any Lenders, in each case substantially in the form of EXHIBIT VI
annexed hereto.
"TRANSACTIONS" has the meaning given such term in the Recitals.
"TRANSACTION COSTS" means the fees, costs and expenses payable by
Borrower on or before the Closing Date in connection with the transactions
contemplated by the Loan Documents, excluding start-up employee benefit costs.
"TYPE" means, with respect to any Loan, a Term Loan, a Revolving
Loan or a Swing Line Loan (each of which is a "TYPE" of Loan).
"UCC" means the Uniform Commercial Code (or any similar or
equivalent legislation) as in effect in any applicable jurisdiction, including
on the date hereof Article 9 of the Uniform Commercial Code in effect on the
date hereof and, after the effective date of Revised Article 9 (hereafter
defined), Article 9 as set forth in the 1999 Official Text ("REVISED ARTICLE 9")
promulgated by the American Law Institute and the National Conference of
Commissioners on Uniform Laws, but after the effective date of Revised Article
9, only Revised Article 9.
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS
UNDER AGREEMENT.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Borrower to Lenders pursuant to clauses (ii), (iii)
and (xii) of subsection 6.1 shall be prepared in accordance with GAAP as in
effect at the time of such preparation (and delivered together with the
reconciliation statements provided for in subsection 6.1(v)). Calculations in
connection with the definitions, covenants and other provisions of this
Agreement shall utilize GAAP as in effect on the date of determination, applied
in a manner consistent with that used in preparing the financial statements
referred to in subsection 5.3. Borrower shall deliver to the Administrative
Agent at the same time as the delivery of any annual or quarterly financial
statements given in accordance with the provisions of Section 6.1, (i) a
description in reasonable detail of any material change in the application of
accounting principles employed in the preparation of such financial statements
from those applied in the most recently preceding quarterly or annual financial
statements as to which no objection shall have been made in accordance with the
provisions above and (ii) a reasonable estimate of the effect on the financial
statements on account of such changes in application.
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.
D. Each of the parties hereto acknowledges that (i) it has
been represented by counsel in the negotiation and documentation of the terms of
this Agreement, (ii) it has had full and fair opportunity to review and revise
the terms of this Agreement, (iii) this Agreement has been drafted jointly by
all of the parties hereto, and (iv) neither Administrative Agent nor any Lender
has any fiduciary relationship with or duty to Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and
Borrower, on the other hand, in connection herewith or therewith is solely that
of debtor and creditor. Accordingly, each of the parties hereto acknowledges and
agrees that the terms of this Agreement shall not be construed against or in
favor of another party.
E. Any reference in this Agreement or any other Loan Document
to any agreement means such agreement as it may be amended, restated,
supplemented or otherwise modified from time to time; (ii) any reference in this
Agreement or any other Loan Document to any law, statute, regulation, rule or
other legislative action shall mean such law, statute, regulation, rule or other
legislative action as amended, supplemented or otherwise modified from time to
time, and shall include any rule or regulation promulgated thereunder; and (iii)
any reference in this Agreement or any other Loan Document to a Person shall
include the successor or assignee of such Person.
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; MAKING OF LOANS; OPTIONAL NOTES.
A. COMMITMENTS. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Borrower
herein set forth, each Lender hereby severally agrees to make the Loans as
described in subsections 2.1A(i), 2.1A(ii) and 2.1A(iii) and Swing Line Lender
hereby agrees to make the Swing Line Loans as described in subsection 2.1A(iv).
(i) TRANCHE A TERM LOANS. Each Lender that has a Tranche A Term
Loan Commitment severally agrees to lend to Borrower on the Closing Date
an amount not exceeding its Pro Rata Share of the aggregate amount of the
Tranche A Term Loan Commitments to be used for the purposes identified in
subsection 2.5A. Borrower shall deliver to Administrative Agent a Notice
of Borrowing no later than 12:00 Noon (
New
York City time) at least one Business Day prior to the Closing Date,
requesting a borrowing of the Tranche A Term Loans. The Notice of
Borrowing shall specify (i) the proposed Funding Date (which shall be a
Business Day), (ii) the amount of the borrowing, and (iii) that such Loans
shall be Base Rate Loans. The aggregate amount of the Tranche A Term Loan
Commitments is $50,000,000; PROVIDED that the Tranche A Term Loan
Commitments of Lenders shall be adjusted to give effect to any assignments
of the Tranche A Term Loan Commitments pursuant to subsection 10.1B. Each
Lender's Tranche A Term Loan Commitment shall expire immediately and
without further action on June 30, 2001 if the Tranche A Term Loans have
not been made on or before that date. Borrower may make only one borrowing
under the Tranche A Term Loan Commitments. Amounts borrowed under this
subsection 2.1A(i) and subsequently repaid or prepaid may not be
reborrowed.
(ii) TRANCHE B TERM LOANS. Each Lender that has a Tranche B Term
Loan Commitment severally agrees to lend to Borrower on the Closing Date
an amount not exceeding its Pro Rata Share of the aggregate amount of the
Tranche B Term Loan Commitments to be used for the purposes identified in
subsection 2.5A. Borrower shall deliver to Administrative Agent a Notice
of Borrowing no later than 12:00 Noon (
New York City time) at least one
Business Day prior to the Closing Date, requesting a borrowing of the
Tranche B Term Loans. The Notice of Borrowing shall specify (i) the
proposed Funding Date (which shall be a Business Day), and (ii) that such
Loans shall be Base Rate Loans. The aggregate amount of the Tranche B Term
Loan Commitments is $50,000,000; PROVIDED that the Tranche B Term Loan
Commitments of Lenders shall be adjusted to give effect to any assignments
of the Tranche B Term Loan Commitments pursuant to subsection 10.1B. Each
Lender's Tranche B Term Loan Commitment shall expire immediately and
without further action on June 30, 2001 if the Tranche B Term Loans have
not been made on or before that date. Borrower may make only one borrowing
under the Tranche B Term Loan Commitments. Amounts borrowed under this
subsection 2.1A(ii) and subsequently repaid or prepaid may not be
reborrowed.
(iii) REVOLVING LOANS. Each Lender severally agrees, subject to
the limitations set forth below with respect to the maximum amount of
Revolving Loans permitted to be outstanding from time to time, to lend to
Borrower from time to time during the period from the date on which the
balance in the Special Collateral Account has been reduced to less than
$1,000,000 but excluding the Revolving Loan Commitment Termination Date an
aggregate amount not exceeding its Pro Rata Share of the aggregate amount
of the Revolving Loan Commitments to be used for the purposes identified
in subsection 2.5B. The aggregate original amount of the Revolving Loan
Commitments is $25,000,000; PROVIDED that the amount of the Revolving Loan
Commitments shall be reduced from time to time by the amount of any
reductions thereto made pursuant to subsection 2.4B. Each Lender's
Revolving Loan Commitment shall expire immediately and without further
action on the Revolving Loan Commitment Termination Date and all Revolving
Loans and all other amounts owed hereunder with respect to the Revolving
Loans and the Revolving Loan Commitments shall be paid in full no later
than that date; PROVIDED that each Lender's Revolving Loan Commitment
shall expire immediately and without further
action on June 30, 2001 if the Tranche A Term Loans have not been not made
on or before that date. Amounts borrowed under this subsection 2.1A(iii)
may be repaid and reborrowed to but excluding the Revolving Loan
Commitment Termination Date.
Anything contained in this Agreement to the contrary notwithstanding, the
Revolving Loans and the Revolving Loan Commitments shall be subject to the
limitation that in no event shall the Total Utilization of Revolving Loan
Commitments at any time exceed the lesser of the Revolving Loan Commitments then
in effect and the Borrowing Base then in effect.
(iv) SWING LINE LOANS.
(a) GENERAL PROVISIONS. Swing Line Lender hereby agrees,
subject to the limitations set forth below with respect to the
maximum amount of Swing Line Loans permitted to be outstanding
from time to time, to make a portion of the Revolving Loan
Commitments available to Borrower from time to time during the
period from the date on which the balance in the Special
Collateral Account has been reduced to less than $1,000,000 but
excluding the Revolving Loan Commitment Termination Date by making
Swing Line Loans to Borrower in an aggregate amount not exceeding
the amount of the Swing Line Loan Commitment to be used for the
purposes identified in subsection 2.5B, notwithstanding the fact
that such Swing Line Loans, when aggregated with Swing Line
Lender's outstanding Revolving Loans and Swing Line Lender's Pro
Rata Share of the Letter of Credit Usage then in effect, may
exceed Swing Line Lender's Revolving Loan Commitment. The original
amount of the Swing Line Loan Commitment is $5,000,000; PROVIDED
that any reduction of the Revolving Loan Commitments made pursuant
to subsection 2.4B that reduces the aggregate Revolving Loan
Commitments to an amount less than the then current amount of the
Swing Line Loan Commitment shall result in an automatic
corresponding reduction of the Swing Line Loan Commitment to the
amount of the Revolving Loan Commitments, as so reduced, without
any further action on the part of Borrower, Administrative Agent
or Swing Line Lender. The Swing Line Loan Commitment shall expire
on the Revolving Loan Commitment Termination Date and all Swing
Line Loans and all other amounts owed hereunder with respect to
the Swing Line Loans shall be paid in full no later than that
date; PROVIDED that the Swing Line Loan Commitment shall expire
immediately and without further action on June 30, 2001 if the
Tranche A Term Loans have not been made on or before that date.
Borrower shall repay each Swing Line Loan on or before the date
that is five Business Days after the date such Loan was made.
Amounts borrowed under this subsection 2.1A(iv) may be repaid and
reborrowed to but excluding the Revolving Loan Commitment
Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Swing Line Loans and the Swing Line Loan
Commitment shall be subject to the limitation that in no event
shall the Total Utilization of Revolving Loan Commitments at any
time exceed the lesser of the Revolving Loan Commitments then in
effect and the Borrowing Base then in effect.
(b) SWING LINE LOAN PREPAYMENT WITH PROCEEDS OF
REVOLVING LOANS. With respect to any Swing Line Loans that have
not been voluntarily prepaid by Borrower pursuant to subsection
2.4B(i), Swing Line Lender may, at any time in its sole and
absolute discretion, deliver to Administrative Agent (with a copy
to Borrower), no later than 10:00 A.M. (
New York City time) at
least one Business Day in advance of the proposed Funding Date
(which shall be deemed to be a Notice of Borrowing given by
Borrower), a notice requesting Lenders with Revolving Loan
Commitments to make Revolving Loans that are Base Rate Loans on
such Funding Date in an amount equal to the amount of such Swing
Line Loans (the "REFUNDED SWING LINE LOANS") outstanding on the
date such notice is given which Swing Line Lender requests Lenders
with Revolving Loan Commitments to prepay. Borrower hereby
authorizes the giving of any such notice and the making of any
such Revolving Loans. Anything contained in this Agreement to the
contrary notwithstanding, (1) the proceeds of such Revolving Loans
made by Lenders other than Swing Line Lender shall be immediately
delivered by Administrative Agent to Swing Line Lender at Swing
Line Lender's Office (and not to Borrower) and applied to repay a
corresponding portion of the Refunded Swing Line Loans and (2) on
the day such Revolving Loans are made, Swing Line Lender's Pro
Rata Share of the Refunded Swing Line Loans shall be deemed to be
paid with the proceeds of a Revolving Loan made by Swing Line
Lender, and such portion of the Swing Line Loans deemed to be so
paid shall no longer be outstanding as Swing Line Loans and shall
no longer be due under the Swing Line Note of Swing Line Lender
but shall instead constitute part of Swing Line Lender's
outstanding Revolving Loans and shall be due under the Revolving
Note of Swing Line Lender. Borrower agrees to immediately pay
Swing Line Lender the amount of the Refunded Swing Line Loans to
the extent the proceeds of such Revolving Loans made by Lenders
with Revolving Loan Commitments, including the Revolving Loan
deemed to be made by Swing Line Lender, are not sufficient to
repay in full the Refunded Swing Line Loans. If any portion of any
such amount paid (or deemed to be paid) to Swing Line Lender
should be recovered by or on behalf of Borrower from Swing Line
Lender in any bankruptcy proceeding, in any assignment for the
benefit of creditors or otherwise, the loss of the amount so
recovered shall be ratably shared among all Lenders in the manner
contemplated by subsection 10.5.
(c) SWING LINE LOAN ASSIGNMENTS. If for any reason (1)
Revolving Loans are not made upon the request of Swing Line Lender
as provided in the immediately preceding paragraph in an amount
sufficient to repay any amounts owed to Swing Line Lender in
respect of any outstanding Swing Line Loans or (2) the Revolving
Loan Commitments are terminated at a time when any Swing Line
Loans are outstanding, each Lender with a Revolving Loan
Commitment shall be deemed to, and hereby agrees to, have
purchased an assignment of such outstanding Swing Line Loans in an
amount equal to its Pro Rata Share (calculated, in the case of the
foregoing clause (2), immediately prior to such termination of the
Revolving Loan Commitments) of the unpaid amount of such
Swing Line Loans together with accrued interest thereon. Upon one
Business Day's notice from Swing Line Lender, each Lender with a
Revolving Loan Commitment shall deliver to Swing Line Lender an
amount equal to its respective assignment in same day funds at
Swing Line Lender's Office. In order to further evidence such
assignment (and without prejudice to the effectiveness of the
assignment provisions set forth above), each Lender with a
Revolving Loan Commitment agrees to enter into an Assignment
Agreement at the request of Swing Line Lender in form and
substance reasonably satisfactory to Swing Line Lender and such
Lender. If any Lender with a Revolving Loan Commitment fails to
make available to Swing Line Lender the amount of such Lender's
assignment as provided in this paragraph, Swing Line Lender shall
be entitled to recover such amount on demand from such Lender
together with interest thereon at the rate customarily used by
Swing Line Lender for the correction of errors among banks for
three Business Days and thereafter at the Base Rate. If Swing Line
Lender receives a payment of any amount in which other Lenders
with Revolving Loan Commitments have purchased assignments as
provided in this paragraph, Swing Line Lender shall promptly
distribute to each such other Lender with a Revolving Loan
Commitment its Pro Rata Share of such payment.
(d) LENDERS' OBLIGATIONS. Anything contained herein to
the contrary notwithstanding, each Lender with a Revolving Loan
Commitment's obligation to make Revolving Loans for the purpose of
repaying any Refunded Swing Line Loans pursuant to subsection
2.1A(iv)(b) and each such Lender's obligation to purchase an
assignment of any unpaid Swing Line Loans pursuant to the
immediately preceding paragraph shall be absolute and
unconditional and shall not be affected by any circumstance,
including (1) any set-off, counterclaim, recoupment, defense or
other right which such Lender with a Revolving Loan Commitment may
have against Swing Line Lender, Borrower or any other Person for
any reason whatsoever; (2) the occurrence or continuation of an
Event of Default or a Potential Event of Default; (3) the
occurrence of any Material Adverse Effect; (4) any breach of this
Agreement or any other Loan Document by any party thereto; or (5)
any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing; PROVIDED that such
obligations of each Lender with a Revolving Loan Commitment are
subject to the condition that (x) Swing Line Lender believed in
good faith that all conditions under Section 4 to the making of
the applicable Refunded Swing Line Loans or other unpaid Swing
Line Loans, as the case may be, were satisfied at the time such
Refunded Swing Line Loans or unpaid Swing Line Loans were made or
(y) the satisfaction of any such condition not satisfied had been
waived in accordance with subsection 10.6 prior to or at the time
such Refunded Swing Line Loans or other unpaid Swing Line Loans
were made.
B. BORROWING MECHANICS. Except for Revolving Loans made on the
Closing Date, Revolving Loans made on any Funding Date (other than Revolving
Loans made pursuant to a request by Swing Line Lender pursuant to subsection
2.1A(iv) for the purpose of repaying any
Refunded Swing Line Loans or Revolving Loans made pursuant to subsection 3.3B
for the purpose of reimbursing any Issuing Lender for the amount of a drawing
under a Letter of Credit issued by it) shall be in an aggregate minimum amount
of $1,000,000 and integral multiples of $100,000 in excess of that amount;
PROVIDED that Revolving Loans made on any Funding Date as LIBOR Loans with a
particular Interest Period shall be in an aggregate minimum amount of $2,000,000
and integral multiples of $100,000 in excess of that amount. Any Swing Line Loan
made on any Funding Date shall be in a minimum amount of $250,000 and integral
multiples of $100,000 in excess of that amount. Whenever Borrower desires that
Lenders make Revolving Loans it shall deliver to Administrative Agent a Notice
of Borrowing no later than 10:00 A.M. (
New York City time) at least three
Business Days in advance of the proposed Funding Date (in the case of a LIBOR
Loan) or at least one Business Day in advance of the proposed Funding Date (in
the case of a Base Rate Loan). Whenever Borrower desires that Swing Line Lender
make a Swing Line Loan, it shall deliver to Swing Line Lender at Swing Line
Lender's Office (with a copy to Administrative Agent at Administrative Agent's
Office) a Notice of Borrowing no later than 12:00 Noon (
New York City time) on
the proposed Funding Date. The Notice of Borrowing shall specify (i) the
proposed Funding Date (which shall be a Business Day), (ii) the amount and Type
of Loans requested, (iii) in the case of Swing Line Loans and any Loans made on
the Closing Date, that such Loans shall be Base Rate Loans, (iv) in the case of
Revolving Loans not made on the Closing Date, whether such Loans shall be Base
Rate Loans or LIBOR Loans, (v) in the case of any Loans requested to be made as
LIBOR Loans, the initial Interest Period requested therefor and (vi) information
about the account of Borrower to be credited. Revolving Loans may be continued
as or converted into Base Rate Loans and LIBOR Loans in the manner provided in
subsection 2.2D. In lieu of delivering the above-described Notice of Borrowing
for any Loan other than a Swing Line Loan, Borrower may give Administrative
Agent telephonic notice by the required time of any proposed borrowing under
this subsection 2.1B; PROVIDED that such notice shall be promptly confirmed in
writing by delivery of a Notice of Borrowing to Administrative Agent at
Administrative Agent's Office no later than 2:00 p.m. (
New York City time) on
the date such notice was given. In lieu of delivering the above-described Notice
of Borrowing for any Swing Line Loan, Borrower may give Swing Line Lender
telephonic notice by the required time of any proposed borrowing under this
subsection 2.1B; PROVIDED that such notice shall be promptly confirmed in
writing by delivery of a Notice of Borrowing to Swing Line Lender at Swing Line
Lender's Office (with a copy to Administrative Agent at Administrative Agent's
Office) no later than 2:00 p.m. (
New York City time) on the date such notice was
given
None of Administrative Agent, Swing Line Lender or any Lender
shall incur any liability to Borrower in acting upon any telephonic notice
referred to above that Administrative Agent or Swing Line Lender believes in
good faith to have been given by a duly authorized Officer or other person
authorized to borrow on behalf of Borrower or for otherwise acting in good faith
under this subsection 2.1B, and upon funding of Revolving Loans by Lenders or
Swing Line Loans by Swing Line Lender in accordance with this Agreement pursuant
to any such telephonic notice Borrower shall have effected Revolving Loans or
Swing Line Loans hereunder.
Borrower shall notify Administrative Agent prior to the funding of
any Revolving Loans or Swing Line Loans if any of the matters to which Borrower
is required (and, if applicable, Swing Line Lender) to certify in the applicable
Notice of Borrowing is no longer true and correct as of the applicable Funding
Date, and the acceptance by Borrower of the proceeds of any Revolving Loans or
Swing Line Loans shall constitute a re-certification by Borrower, as of the
applicable Funding Date, as to the matters to which Borrower is required to
certify in the applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a
Notice of Borrowing for a LIBOR Loan (or telephonic notice in lieu thereof)
shall be irrevocable once Administrative Agent receives such notice, and
Borrower shall be bound to make a borrowing in accordance therewith.
C. DISBURSEMENT OF FUNDS. All Term Loans and Revolving Loans
under this Agreement shall be made by Lenders simultaneously and proportionately
to their respective Pro Rata Shares, it being understood that neither
Administrative Agent nor any Lender shall be responsible for any default by any
other Lender in that other Lender's obligation to make a Loan requested
hereunder nor shall the Commitment of any Lender to make the particular Type of
Loan requested be increased or decreased as a result of a default by any other
Lender in that other Lender's obligation to make a Loan requested hereunder.
Promptly after receipt by Administrative Agent of a Notice of Borrowing (except
with respect to Swing Line Loans) pursuant to subsection 2.1A or 2.1B (or
telephonic notice in lieu thereof), Administrative Agent shall notify each
Lender for that Type of Loan of the proposed borrowing. Each such Lender shall
make the amount of its Loan available to Administrative Agent at the
Administrative Agent's Office not later than 12:00 Noon (New York City time) on
the applicable Funding Date. Except as provided in subsection 2.1A(iv) or
subsection 3.3B with respect to Revolving Loans used to repay Refunded Swing
Line Loans or to reimburse any Issuing Lender for the amount of a drawing under
a Letter of Credit issued by it, upon satisfaction or waiver of the conditions
precedent specified in subsections 4.1 (in the case of Loans made on the Closing
Date) and 4.2 (in the case of all Loans), Administrative Agent shall make the
proceeds of such Loans available to Borrower on the applicable Funding Date by
causing an amount of same day funds in Dollars equal to the proceeds of all such
Loans received by Administrative Agent from Lenders to be wire-transferred to an
account of Borrower as specified in the applicable Notice of Borrowing. Swing
Line Lender shall make the amount of its Swing Line Loan available to Borrower
by wire transfer to an account of Borrower as specified in the applicable Notice
of Borrowing not later than 2:00 P.M. (New York City time) on the applicable
Funding Date, in each case in same day funds in Dollars.
Unless Administrative Agent shall have been notified by any Lender
prior to a Funding Date for any Loans that such Lender does not intend to make
available to Administrative Agent the amount of such Lender's Loan requested on
such Funding Date, Administrative Agent may assume that such Lender has made
such amount available to Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall not be obligated to,
make available to Borrower a corresponding amount on such Funding Date. If such
corresponding amount is not in fact made available to Administrative Agent by
such Lender, Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest thereon,
for each day from such Funding Date until the date such amount is paid to
Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three Business Days and thereafter at the
Base Rate. If such Lender does not pay such corresponding amount forthwith upon
Administrative Agent's demand therefor, Administrative Agent shall promptly
notify Borrower and Borrower shall immediately pay such corresponding amount to
Administrative Agent together with interest thereon, for each day from such
Funding Date until the date such amount is paid to Administrative Agent, at the
rate payable under this Agreement for Base Rate Loans. Nothing in this
subsection 2.1C shall be deemed to relieve any Lender from its obligation to
fulfill its Commitments hereunder or to prejudice any rights that Borrower may
have against any Lender as a result of any default by such Lender hereunder.
D. THE REGISTER.
(i) Administrative Agent shall maintain, at its address
referred to in subsection 10.8, a register for the recordation of the
names and addresses of Lenders and the Commitments and Loans of each
Lender from time to time (the "REGISTER"). The Register shall be available
for inspection by Borrower at any reasonable time and from time to time
upon reasonable prior notice.
(ii) Administrative Agent shall record in the Register the
Tranche A Term Loan Commitment, Tranche B Term Loan Commitment and
Revolving Loan Commitment and the Tranche A Term Loans, Tranche B Term
Loans and Revolving Loans from time to time of each Lender, and each
repayment or prepayment in respect of the principal amount of the Term
Loan or Revolving Loans of each Lender. Any such recordation shall be
conclusive and binding on Borrower and each Lender, absent manifest error;
PROVIDED that failure to make any such recordation, or any error in such
recordation, shall not affect any Lender's Commitments or Borrower's
Obligations in respect of any applicable Loans.
(iii) Each Lender may record on its internal records (including
the Notes held by such Lender) the amount of the Tranche A Term Loans,
Tranche B Term Loans and each Revolving Loan made by it and each payment
in respect thereof. Any such recordation shall be conclusive and binding
on Borrower, absent manifest error; PROVIDED that failure to make any such
recordation, or any error in such recordation, shall not affect any
Lender's Commitments or Borrower's Obligations in respect of any
applicable Loans; and PROVIDED FURTHER that in the event of any
inconsistency between the Register and any Lender's records, the
recordations in the Register shall govern (absent manifest error).
(iv) Borrower, Administrative Agent and Lenders shall deem and
treat the Persons listed as Lenders in the Register as the holders and
owners of the corresponding Commitments and Loans listed therein for all
purposes hereof, and no assignment or transfer of any such Commitment or
Loan shall be effective, in each case unless and until an Assignment
Agreement effecting the assignment or transfer thereof shall have been
accepted by Administrative Agent and recorded in the Register as provided
in subsection
10.1B(ii). Prior to such recordation, all amounts owed with respect to the
applicable Commitment or Loan shall be owed to the Lender listed in the
Register as the owner thereof, and any request, authority or consent of
any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Lender shall be
conclusive and binding on any subsequent holder, assignee or transferee of
the corresponding Commitments or Loans.
(v) Borrower hereby designates CIBC to serve as Borrower's
agent solely for purposes of maintaining the Register as provided in this
subsection 2.1D, and Borrower hereby agrees that, to the extent CIBC
serves in such capacity, CIBC and its officers, directors, employees,
agents and Affiliates shall constitute Indemnitees for all purposes under
subsection 10.3.
E. NOTES. Borrower shall execute and deliver on the Closing Date (i)
to each Lender (or to Administrative Agent for that Lender if requested by such
Lender) (a) a Tranche A Term Loan Note substantially in the form of EXHIBIT V
annexed hereto to evidence that Lender's Tranche A Term Loan, in the principal
amount of that Lender's Tranche A Term Loan and with other appropriate
insertions, (b) a Tranche B Term Loan Note substantially in the form of EXHIBIT
VI annexed hereto to evidence that Lender's Tranche B Term Loan, in the
principal amount of that Lender's Tranche B Term Loan and with other appropriate
insertions, and (c) a Revolving Note substantially in the form of EXHIBIT VII
annexed hereto to evidence that Lender's Revolving Loans, in the principal
amount of that Lender's Revolving Loan Commitment and with other appropriate
insertions, and (ii) to Swing Line Lender (or to Administrative Agent for Swing
Line Lender) a Swing Line Note substantially in the form of EXHIBIT VIII annexed
hereto to evidence Swing Line Lender's Swing Line Loans, in the principal amount
of the Swing Line Loan Commitment and with other appropriate insertions.
Administrative Agent may deem and treat the payee of any Note as
the owner thereof for all purposes hereof unless and until an Assignment
Agreement effecting the assignment or transfer thereof shall have been accepted
by Administrative Agent as provided in subsection 10.1B(ii). Any request,
authorization or consent of any person or entity who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall be
conclusive and binding on any subsequent holder, assignee or transferee of that
Note or of any Note or Notes issued in exchange therefor.
2.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. Subject to the provisions of subsections 2.6 and
2.7, each Term Loan and each Revolving Loan shall bear interest on the unpaid
principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Base Rate or
Adjusted LIBOR. Subject to the provisions of subsection 2.7, each Swing Line
Loan shall bear interest on the unpaid principal amount thereof from the date
made through maturity (whether by acceleration or otherwise) at a rate
determined by reference to the Base Rate. The applicable basis for determining
the rate of interest with respect to any Term Loan or any Revolving Loan shall
be selected by Borrower initially at the time a Notice of Borrowing is given
with respect to such Loan pursuant to subsection 2.1B, and the basis for
determining the interest rate with respect to any Term Loan or any Revolving
Loan may be changed from time to time pursuant to subsection 2.2D. If on any day
a Term Loan or Revolving Loan is outstanding with respect to which notice has
not been delivered to Administrative Agent in accordance with the terms of this
Agreement specifying the applicable basis for determining the rate of interest,
then for that day that Loan shall bear interest determined by reference to the
Base Rate.
Subject to the provisions of subsections 2.2E and 2.7, the Tranche
A Term Loans, the Tranche B Term Loans and the Revolving Loans shall bear
interest through maturity as follows:
(i) if a Base Rate Loan, then at the sum of the Base Rate PLUS
the Applicable Base Rate Margin for such Type of Loans; or
(ii) if a LIBOR Loan, then at the sum of Adjusted LIBOR PLUS the
Applicable LIBOR Margin for such Type of Loans.
Subject to the provisions of subsections 2.2E and 2.7, the Swing
Line Loans shall bear interest through maturity at the sum of the Base Rate PLUS
the Applicable Base Rate Margin.
Upon delivery of the Margin Determination Certificate by Borrower
to Administrative Agent pursuant to subsection 6.1(xvi), the Applicable Base
Rate Margin and Applicable LIBOR Margin shall automatically be adjusted in
accordance with such Margin Determination Certificate, such adjustment to become
effective on the 60th day after the end of the Fiscal Quarter to which the
financial results contained in the Margin Determination Certificate relate;
PROVIDED that (1) at any time a Margin Determination Certificate is not
delivered at the time required pursuant to subsection 6.1(xvi), from the time
such Margin Determination Certificate was required to be delivered until
delivery of such Margin Determination Certificate, the Applicable Base Rate
Margin shall be 2.50% for the Revolving Loans and the Tranche A Term Loans and
3.00% for the Tranche B Term Loans, and the Applicable LIBOR Margin shall be
3.50% for the Revolving Loans and the Tranche A Term Loans and 4.00% for the
Tranche B Term Loans, and (2) if a Margin Determination Certificate erroneously
indicates an applicable margin more favorable to Borrower than should be
afforded by the actual calculation of the Consolidated Total Leverage Ratio,
Borrower shall promptly pay additional interest and letter of credit fees to
correct for such error.
B. INTEREST PERIODS. In connection with each LIBOR Loan,
Borrower may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"INTEREST PERIOD") to be applicable to such Loan, which Interest Period shall
be, at Borrower's option, either a one, two, three or six month period; PROVIDED
that:
(i) the initial Interest Period for any LIBOR Loan shall
commence on the Funding Date in respect of such Loan, in the case of a
Loan initially made as a LIBOR Loan, or on the date specified in the
applicable Notice of Conversion/Continuation, in the case of a Loan
converted to a LIBOR Loan;
(ii) in the case of immediately successive Interest Periods
applicable to a LIBOR Loan continued as such pursuant to a Notice of
Conversion/Continuation, each successive Interest Period shall commence on
the day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; PROVIDED that, if any Interest Period would
otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (v) of this subsection 2.2B, end on the
last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the
Tranche A Term Loans shall extend beyond June 30, 2006, no Interest Period
with respect to any portion of the Tranche B Term Loans shall extend
beyond June 29, 2007, and no Interest Period with respect to any portion
of the Revolving Loans shall extend beyond the Revolving Loan Commitment
Termination Date;
(vi) no Interest Period with respect to any Type of Term Loans
shall extend beyond a date on which Borrower is required to make a
scheduled payment of principal of such Type of Term Loans, unless the sum
of (a) the aggregate principal amount of such Type of Term Loans that are
Base Rate Loans PLUS (b) the aggregate principal amount of such Type of
Term Loans that are LIBOR Loans with Interest Periods expiring on or
before such date equals or exceeds the principal amount required to be
paid on such Type of Term Loans on such date;
(vii) no Interest Period with respect to any portion of the
Revolving Loans shall extend beyond the date on which a permanent
reduction of the Revolving Loan Commitments is scheduled to occur unless
the sum of (a) the aggregate principal amount of Revolving Loans that are
Base Rate Loans PLUS (b) the aggregate principal amount of Revolving Loans
that are LIBOR Loans with Interest Periods expiring on or before such date
PLUS (c) the excess of the Revolving Loan Commitments then in effect over
the aggregate principal amount of Revolving Loans then outstanding equals
or exceeds the permanent reduction of the Revolving Loan Commitments that
is scheduled to occur on such date;
(viii) there shall be no more than eight Interest Periods
outstanding at any time; and
(ix) if Borrower fails to specify an Interest Period for any
LIBOR Loan in the applicable Notice of Borrowing or Notice of
Conversion/Continuation, Borrower shall be deemed to have selected an
Interest Period of one month.
C. INTEREST PAYMENTS. Subject to the provisions of
subsection 2.2E, interest on each Loan shall be payable in arrears on and to
each Interest Payment Date applicable to that Loan, upon any prepayment of that
Loan (to the extent accrued on the amount being prepaid) and at maturity
(including final maturity) PROVIDED that if any Swing Line Loans or any
Revolving Loans that are Base Rate Loans are prepaid pursuant to subsection
2.4B(i), interest accrued on such Loans through the date of such prepayment
shall be payable on the next succeeding Interest Payment Date applicable to Base
Rate Loans (or, if earlier, at final maturity).
D. CONVERSION OR CONTINUATION.
(i) Subject to the provisions of subsection 2.6, Borrower shall
have the option (i) to convert at any time all or any part of its
outstanding Term Loans or Revolving Loans from Loans bearing interest at a
rate determined by reference to one basis to Loans bearing interest at a
rate determined by reference to an alternative basis, in each case in the
applicable Minimum Amount therefor, or (ii) upon the expiration of any
Interest Period applicable to a LIBOR Loan, to continue all or any portion
of such Loan equal to $2,000,000 and integral multiples of $100,000 in
excess of that amount as a LIBOR Loan; PROVIDED, HOWEVER, that a LIBOR
Loan may only be converted into a Base Rate Loan on the expiration date of
an Interest Period applicable thereto.
(ii) Borrower shall deliver a Notice of Conversion/Continuation
to Administrative Agent no later than 10:00 AM (New York City time) at
least three Business Days in advance of the proposed conversion date (in
the case of a conversion to a Base Rate Loan) and at least three Business
Days in advance of the proposed conversion/continuation date (in the case
of a conversion to, or a continuation of, a LIBOR Loan). With respect to
any LIBOR Loan, if Borrower fails to deliver a Notice of
Conversion/Continuation as described above or if any proposed
conversion/continuation under this subsection 2.2D is not permitted
hereunder, Borrower shall be deemed to have elected to convert such LIBOR
Loan to a Base Rate Loan on the last day of the then-expiring Interest
Period.
(iii) A Notice of Conversion/Continuation shall specify (a) the
proposed conversion/continuation date (which shall be a Business Day), (b)
the amount and Type of the Loan to be converted/continued, (c) the nature
of the proposed conversion/continuation, (d) in the case of a conversion
to, or a continuation of, a LIBOR Loan, the requested Interest Period, and
(e) in the case of a conversion to, or a continuation of, a LIBOR Loan,
that no Potential Event of Default or Event of Default has occurred and is
continuing. In lieu of delivering the above-described Notice of
Conversion/Continuation, Borrower may give Administrative Agent telephonic
notice by the required time of any proposed conversion/continuation under
this subsection 2.2D, provided that Administrative Agent shall receive a
Notice of Conversion/Continuation to confirm such telephonic notice no
later than 2:00 P.M. (New York City time) on the day on which such
telephonic notice is given. Upon receipt of written or telephonic notice
of any proposed conversion/continuation under this subsection 2.2D,
Administrative Agent shall promptly transmit such notice by telefacsimile
or electronic mail (or by telephone promptly confirmed by telefacsimile or
electronic mail) to each Lender.
(iv) Neither Administrative Agent nor any Lender shall incur any
liability to Borrower in acting upon any telephonic notice referred to
above that Administrative Agent believes in good faith to have been given
by a duly authorized Officer or other person authorized to act on behalf
of Borrower or for otherwise acting in good faith under this subsection
2.2D, and upon conversion or continuation of the applicable basis for
determining the interest rate with respect to any Loans in accordance with
this Agreement pursuant to any such telephonic notice Borrower shall have
effected a conversion or continuation, as the case may be, hereunder.
(v) Except as otherwise provided in subsections 2.6B, 2.6C and
2.6G, a notice of a proposed conversion to, or continuation of, a LIBOR
Loan (whether by delivery of a Notice of Conversion/Continuation or
telephonic notice) shall be irrevocable once Administrative Agent receives
such notice, and Borrower shall be bound to effect a conversion or
continuation in accordance therewith.
E. DEFAULT RATE. Upon the occurrence and during the
continuation of any Event of Default, the outstanding principal amount of all
Loans and, to the extent permitted by applicable law, any interest payments
thereon not paid when due and any fees and other amounts then due and payable
hereunder, shall thereafter bear interest (including post-petition interest in
any proceeding under the Bankruptcy Code or other applicable bankruptcy laws)
payable upon demand at a rate that is 2.00% per annum in excess of the interest
rate otherwise payable under this Agreement with respect to the applicable Loans
(or, in the case of any such fees and other amounts, at a rate which is 2.00%
per annum in excess of the interest rate otherwise payable under this Agreement
for Revolving Loans that are Base Rate Loans); PROVIDED that, in the case of
LIBOR Loans, upon the expiration of the Interest Period in effect at the time
any such increase in interest rate is effective such LIBOR Loans shall thereupon
become Base Rate Loans and shall thereafter bear interest payable upon demand at
a rate which is 2.00% per annum in excess of the interest rate otherwise payable
under this Agreement for Base Rate Loans. Payment or acceptance of the increased
rates of interest provided for in this subsection 2.2E is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies of Administrative
Agent or any Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans and other
Obligations shall be computed (i) in the case of Base Rate Loans, on the basis
of a 365-day year, and (ii) in the case of LIBOR Loans and other Obligations
(other than Base Rate Loans), on the basis of a 360-day year, in each case for
the actual number of days elapsed in the period during which it accrues. In
computing interest on any Loan, the date of the making of such Loan or the first
day of an Interest Period applicable to such Loan or, with respect to a Base
Rate Loan being converted from a LIBOR Loan, the date of conversion of such
LIBOR Loan to such Base Rate Loan, as the case may be, shall be included, and
the date of payment of such Loan or the expiration date of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan being converted to
a LIBOR Loan, the date of conversion of such Base Rate Loan to such LIBOR Loan,
as the case may be, shall be excluded; PROVIDED that if a Loan is repaid on the
same day on which it is made, one day's interest shall be paid on that Loan.
2.3 FEES.
A. REVOLVING LOAN COMMITMENT FEES. Borrower agrees to pay to
Administrative Agent, for distribution to each Lender in proportion to that
Lender's Pro Rata Share of the Revolving Loan Commitments, commitment fees for
the period from and including the Closing Date to and excluding the Revolving
Loan Commitment Termination Date equal to the average of the daily excess of the
Revolving Loan Commitments over the sum of (i) the aggregate principal amount of
outstanding Revolving Loans (but not any outstanding Swing Line Loans) PLUS (ii)
the Letter of Credit Usage MULTIPLIED BY one half of 1% per annum, such
commitment fees to be calculated on the basis of a 360-day year and the actual
number of days elapsed and to be payable quarterly in arrears on the last
Business Day of each March, June, September and December of each Fiscal Year
commencing on the first such date to occur after the Closing Date, and on the
Revolving Loan Commitment Termination Date.
B. OTHER FEES. Borrower agrees to pay to Lead Arranger and
Administrative Agent such fees in the amounts and at the times separately agreed
upon among Borrower, Lead Arranger and Administrative Agent.
2.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN
COMMITMENTS; GENERAL PROVISIONS REGARDING PAYMENTS; APPLICATION
OF PROCEEDS OF COLLATERAL AND PAYMENTS UNDER SUBSIDIARY GUARANTY.
A. SCHEDULED PAYMENTS OF TERM LOANS.
(i) SCHEDULED PAYMENTS OF TRANCHE A TERM LOANS. Borrower shall
make principal payments on the Tranche A Term Loans in installments on the
dates and in the amounts set forth below:
DATE SCHEDULED REPAYMENT
September 30, 2001 $ 500,000
December 31, 2001 $ 500,000
March 31, 2002 $ 1,000,000
June 30, 2002 $ 1,000,000
September 30, 2002 $ 2,000,000
December 31, 2002 $ 2,000,000
March 31, 2003 $ 2,500,000
June 30, 2003 $ 2,500,000
September 30, 2003 $ 2,500,000
December 31, 2003 $ 2,500,000
March 31, 2004 $ 2,500,000
June 30, 2004 $ 2,500,000
September 30, 2004 $ 3,000,000
December 31, 2004 $ 3,000,000
March 31, 2005 $ 3,000,000
June 30, 2005 $ 3,000,000
September 30, 2005 $ 4,000,000
December 31, 2005 $ 4,000,000
March 31, 2006 $ 4,000,000
June 30, 2006 $ 4,000,000
===========
TOTAL $50,000,000
; PROVIDED that the scheduled installments of principal of the Tranche A Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Tranche A Term Loans in accordance with subsection
2.4B(iv); and PROVIDED, FURTHER that the Tranche A Term Loans and all other
amounts owed hereunder with respect to the Tranche A Term Loans shall be paid in
full no later than June 30, 2006, and the final installment payable by Borrower
in respect of the Tranche A Term Loans on such date shall be in an amount, if
such amount is different from that specified above, sufficient to repay all
amounts owing by Borrower under this Agreement with respect to the Tranche A
Term Loans.
(ii) SCHEDULED PAYMENTS OF TRANCHE B TERM LOANS. Borrower shall
make principal payments on the Tranche B Term Loans in quarterly
installments equal to $125,000 on the last Business Day of each March,
June, September and December of each Fiscal Year commencing on September
30, 2001, and ending on June 29, 2007; PROVIDED that the scheduled
installments of principal of the Tranche B Term Loans shall be reduced in
connection with any voluntary or mandatory prepayments of the Tranche B
Term Loans in accordance with subsection 2.4B(iv); and PROVIDED, FURTHER
that the Tranche B Term Loans and all other amounts owed hereunder with
respect to the Tranche B Term Loans shall be paid in full no later than
June 29, 2007, and the final installment payable by Borrower in respect of
the Tranche B Term Loans on such date shall be in an amount sufficient to
repay all amounts owing by Borrower under this Agreement with respect to
the Tranche B Term Loans.
B. PREPAYMENTS AND UNSCHEDULED REDUCTIONS IN REVOLVING LOAN
COMMITMENTS.
(i) VOLUNTARY PREPAYMENTS. Borrower may, upon not less than one
Business Day's irrevocable prior written notice, in the case of Base Rate
Loans, and three Business Days' irrevocable prior written notice, in the
case of LIBOR Loans, in each case given to Administrative Agent by 12:00
Noon (New York City time) on the date required (which written notice
Administrative Agent will promptly transmit by telefacsimile or electronic
mail to each Lender), at any time and from time to time prepay any Swing
Line Loan on any Business Day in whole or in part in an aggregate minimum
amount of $250,000 and integral multiples of $100,000 in excess of that
amount, and any Tranche A Term Loans, Tranche B Term Loans or Revolving
Loans on any Business Day in whole or in part in an aggregate minimum
amount of $1,000,000 and integral multiples of $100,000 in excess of that
amount; PROVIDED, HOWEVER, that any LIBOR Loan may be prepaid on a day
other than the expiration of the Interest Period applicable thereto, only
if Borrower pays the amounts due pursuant to subsection 2.6D caused by
such prepayment. Notice of
prepayment having been given as aforesaid, the principal amount of the
Loans specified in such notice shall become due and payable on the
prepayment date specified therein. Any such voluntary prepayment shall be
applied as specified in subsection 2.4B(iv).
(ii) VOLUNTARY REDUCTIONS OF REVOLVING LOAN COMMITMENTS.
Borrower may, upon not less than five Business Days' irrevocable prior
written notice to Administrative Agent (which written notice
Administrative Agent will promptly transmit by telefacsimile or electronic
mail to each Lender), at any time and from time to time terminate in whole
or permanently reduce in part, without premium or penalty, the Revolving
Loan Commitments in an amount up to the amount by which the Revolving Loan
Commitments exceed the Total Utilization of Revolving Loan Commitments at
the time of such proposed termination or reduction; PROVIDED that any such
partial reduction of the Revolving Loan Commitments shall be in an
aggregate minimum amount of $1,000,000 and integral multiples of $100,000
in excess of that amount. Borrower's notice to Administrative Agent shall
designate the date (which shall be a Business Day) of such termination or
reduction and the amount of any partial reduction, and such termination or
reduction of the Revolving Loan Commitments shall be effective on the date
specified in Borrower's notice and shall reduce the Revolving Loan
Commitment of each Lender proportionately to its Pro Rata Share.
(iii) MANDATORY PREPAYMENTS AND MANDATORY REDUCTIONS OF REVOLVING
LOAN COMMITMENTS. The Loans shall be prepaid and/or the Revolving Loan
Commitments shall be permanently reduced in the amounts and under the
circumstances set forth below, all such prepayments and/or reductions to
be applied as set forth below or as more specifically provided in
subsection 2.4B(iv):
(a) PREPAYMENTS AND REDUCTIONS FROM NET ASSET SALE
PROCEEDS. No later than the date of receipt by Borrower or any of
its Subsidiaries of any Net Asset Sale Proceeds in respect of any
Asset Sale, Borrower shall either (1) prepay the Loans and/or the
Revolving Loan Commitments shall be permanently reduced in an
aggregate amount equal to such Net Asset Sale Proceeds or (2) so
long as no Potential Event of Default or Event of Default shall
have occurred and be continuing and to the extent that aggregate
Net Asset Sale Proceeds for such Fiscal Year exceed $1,000,000,
deliver to Administrative Agent an Officer's Certificate setting
forth (x) that portion of such Net Asset Sale Proceeds that
Borrower or such Subsidiary intends to reinvest in equipment or
other productive assets of the general type used in the business
of Borrower and its Subsidiaries within 180 days of such date of
receipt and (y) the proposed use of such portion of the Net Asset
Sale Proceeds and such other information with respect to such
reinvestment as Administrative Agent may reasonably request, and
Borrower shall, or shall cause one or more of its Subsidiaries to,
promptly and diligently apply such portion to such reinvestment
purposes. Pending any such reinvestment, such Net Asset Sale
Proceeds shall be held in a cash collateral account pledged to
Administrative Agent for the ratable benefit of Lenders. In
addition, Borrower shall, no later than 180 days after receipt of
such Net Asset Sale Proceeds that have not theretofore been
applied to the Obligations or that
have not been so reinvested as provided above, make an additional
prepayment of the Loans (and/or the Revolving Loan Commitments
shall be permanently reduced) in the full amount of all such Net
Asset Sale Proceeds. Notwithstanding anything to the contrary
contained in this subsection 2.4B(iii)(a), Borrower may reinvest
the Net Asset Sale Proceeds from the sale of Borrower's corporate
aircraft in a new corporate aircraft to the extent that the Net
Asset Sale Proceeds do not exceed $2,000,000 in the aggregate.
(b) PREPAYMENTS AND REDUCTIONS FROM NET
INSURANCE/CONDEMNATION PROCEEDS. No later than the first Business
Day following the date of receipt by Administrative Agent or by
Borrower or any of its Subsidiaries of any Net
Insurance/Condemnation Proceeds in excess of $500,000 in the
aggregate for such Fiscal Year that are not applied to restoration
or reconstruction pursuant to the provisions of subsection 6.4C,
immediately following the 180th day occurring after the receipt by
Borrower or any of its Subsidiaries of such Net
Insurance/Condemnation Proceeds, Borrower shall prepay the Loans
and/or the Revolving Loan Commitments shall be permanently reduced
in an aggregate amount equal to the amount of such Net
Insurance/Condemnation Proceeds.
(c) PREPAYMENTS AND REDUCTIONS DUE TO REVERSION OF
SURPLUS ASSETS OF PENSION PLANS. On the date of return to Borrower
or any of its Subsidiaries or any surplus assets of any Pension
Plan of Borrower or any of its Subsidiaries, Borrower shall prepay
the Loans and/or the Revolving Loan Commitments shall be
permanently reduced in an aggregate amount (such amount being the
"NET PENSION PROCEEDS") equal to 100% of such returned surplus
assets, net of transaction costs and expenses incurred in
obtaining such return, including incremental taxes payable as a
result thereof.
(d) PREPAYMENTS AND REDUCTIONS DUE TO ISSUANCE OF EQUITY
SECURITIES. On the date of receipt of the Net Securities Proceeds
from the issuance of any Capital Stock of Borrower, Holdings or of
any Subsidiary of Borrower or from any capital contribution to
Borrower by any holder of Capital Stock thereof after the Closing
Date (other than, provided that no Potential Event of Default or
Event of Default shall have occurred and be continuing at such
time, proceeds from the issuance of Capital Stock or from capital
contributions to pay for acquisitions permitted pursuant to
subsection 7.7 ), Borrower shall prepay the Loans and/or the
Revolving Loan Commitments shall be permanently reduced in an
aggregate amount equal to such Net Securities Proceeds.
(e) PREPAYMENTS AND REDUCTIONS DUE TO ISSUANCE OF
INDEBTEDNESS. On the date of receipt of the Net Securities
Proceeds from the issuance of any Indebtedness of Borrower,
Holdings or any of its Subsidiaries after the Closing Date, other
than Indebtedness permitted pursuant to subsection 7.1, Borrower
shall prepay the Loans and/or the Revolving Loan Commitments shall
be permanently reduced in an aggregate amount equal to such Net
Securities Proceeds.
(f) PREPAYMENTS AND REDUCTIONS FROM CONSOLIDATED EXCESS
CASH FLOW. If there is Consolidated Excess Cash Flow for any
Fiscal Year (commencing with Fiscal Year 2001), Borrower shall, no
later than 90 days after the end of such Fiscal Year, prepay the
Loans (but the Revolving Loan Commitment shall not be permanently
reduced) in an aggregate amount equal to (i) if at the end of such
Fiscal Year, the Consolidated Total Leverage Ratio is less than
3:00 to 1:00, 50% of such Consolidated Excess Cash Flow, or (ii)
otherwise, 75% of such Consolidated Excess Cash Flow.
(g) CALCULATIONS OF NET PROCEEDS AMOUNTS; ADDITIONAL
PREPAYMENTS AND REDUCTIONS BASED ON SUBSEQUENT CALCULATIONS.
Concurrently with any prepayment of the Loans and/or reduction of
the Revolving Loan Commitments pursuant to subsections
2.4B(iii)(b)- 2.4B(iii)(f), Borrower shall deliver to
Administrative Agent and Lenders an Officer's Certificate
demonstrating the calculation of the amount (the "NET PROCEEDS
AMOUNT") of the applicable Net Asset Sale Proceeds, Net
Insurance/Condemnation Proceeds, Net Pension Proceeds, Net
Securities Proceeds, or Consolidated Excess Cash Flow, as the case
may be, that gave rise to such prepayment and/or reduction. If
Borrower subsequently determines that the actual Net Proceeds
Amount was greater than the amount set forth in such Officer's
Certificate (including if any actual taxes to be paid as a result
of an Asset Sale is less than the estimated taxes to be paid as a
result of such Asset Sale), Borrower shall promptly make an
additional prepayment of the Loans (and/or, if applicable, the
Revolving Loan Commitments shall be permanently reduced) in an
amount equal to the amount of such excess, and Borrower shall
concurrently therewith deliver to Administrative Agent an
Officer's Certificate demonstrating the derivation of the
additional Net Proceeds Amount resulting in such excess.
(h) PREPAYMENTS DUE TO REDUCTIONS OR RESTRICTIONS OF
REVOLVING LOAN COMMITMENTS. Borrower shall from time to time
prepay FIRST the Swing Line Loans, SECOND the Revolving Loans to
the extent necessary so that the Total Utilization of Revolving
Loan Commitments shall not at any time exceed the lesser of the
Revolving Loan Commitments or the Borrowing Base then in effect
and THIRD to cash collateralize any outstanding Letters of Credit.
(iv) APPLICATION OF PREPAYMENTS.
(a) APPLICATION OF VOLUNTARY PREPAYMENTS BY TYPE OF
LOANS AND ORDER OF MATURITY. Subject to the provisions of
subsection 2.4D, any voluntary prepayments pursuant to subsection
2.4B(i) shall be applied as specified by Borrower in the
applicable notice of prepayment; PROVIDED that if Borrower fails
to specify the Loans to which any such prepayment shall be
applied, such prepayment shall be applied FIRST to repay
outstanding Term Loans to the full extent thereof, SECOND to repay
outstanding Swing Line Loans to the full extent thereof, THIRD to
repay outstanding Revolving Loans to the full extent thereof and
permanently reduce the Revolving Loan Commitments and FOURTH to
cash
collateralize any outstanding Letters of Credit. Any voluntary
prepayments of the Term Loans pursuant to subsection 2.4B(i) shall
be applied to prepay the Tranche A Term Loans and the Tranche B
Term Loans on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof) to reduce the scheduled
installments of principal of the Tranche A Term Loans and Tranche
B Term Loans set forth in subsections 2.4A(i) and 2.4A(ii) on a
pro rata basis (in accordance with the respective outstanding
principal amounts thereof) to each remaining scheduled installment
of principal of the Tranche A Term Loans or the Tranche B Term
Loans, as the case may be, set forth in subsection 2.4A(i) or
2.4A(ii), respectively.
(b) APPLICATION OF MANDATORY PREPAYMENTS BY TYPE OF
LOANS. Unless an Event of Default has occurred and is continuing,
any amount (the "APPLIED AMOUNT") required to be applied as a
mandatory prepayment of the Term Loans and/or a reduction of the
Revolving Loan Commitments pursuant to subsections 2.4B(iii)(a)-
2.4B(iii)(g) shall be applied FIRST to prepay the Term Loans to
the full extent thereof, SECOND, to the extent of any remaining
portion of the Applied Amount, to prepay the Swing Line Loans to
the full extent thereof and to permanently reduce the Revolving
Loan Commitments by the amount of such prepayment, THIRD, to the
extent of any remaining portion of the Applied Amount, to prepay
the Revolving Loans to the full extent thereof and to cash
collateralize any outstanding Letters of Credit and to further
permanently reduce the Revolving Loan Commitments by the amount of
such prepayment, FOURTH, to the extent of any remaining portion of
such Applied Amount, to further permanently reduce the Revolving
Loan Commitments to the full extent thereof (except as provided in
subsection 2.4B(iii)(f)). If an Event of Default has occurred and
is continuing, any amount required to be applied as a mandatory
prepayment shall be applied as set forth in subsection 2.4D.
(c) APPLICATION OF MANDATORY PREPAYMENTS OF TERM LOANS
TO TRANCHE A TERM LOANS AND TRANCHE B TERM LOANS AND THE SCHEDULED
INSTALLMENTS OF PRINCIPAL THEREOF. Any mandatory prepayments of
the Term Loans pursuant to subsection 2.4B(iii), subject to the
last sentence of subsection 2.4B(iv)(b), shall be applied to
prepay the Tranche A Term Loans and the Tranche B Term Loans on a
pro rata basis (in accordance with the respective outstanding
principal amounts thereof) and shall be applied to reduce the
scheduled installments of principal of the Tranche A Term Loans or
the Tranche B Term Loans, as the case may be, set forth in
subsection 2.4A(i) or 2.4A(ii), respectively, on a pro rata basis
(in accordance with the respective outstanding principal amounts
thereof) to each scheduled installment of principal of the Tranche
A Term Loans or the Tranche B Term Loans, as the case may be, set
forth in subsection 2.4A(i) or 2.4A(ii), respectively, that is
unpaid at the time of such prepayment.
(d) APPLICATION OF PREPAYMENTS TO BASE RATE LOANS AND
LIBOR LOANS. Considering Tranche A Term Loans, Tranche B Term
Loans and Revolving Loans being prepaid separately, any prepayment
thereof shall be
applied first to Base Rate Loans to the full extent thereof before
application to LIBOR Loans, in each case in a manner which
minimizes the amount of any payments required to be made by
Borrower pursuant to subsection 2.6D.
C. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) MANNER AND TIME OF PAYMENT. All payments by Borrower of
principal, interest, fees and other Obligations hereunder and under the
Notes shall be made in Dollars in same day funds, without defense, setoff
or counterclaim, free of any restriction or condition, and delivered to
Administrative Agent not later than 12:00 Noon (New York City time) on the
date due at the Administrative Agent's Office for the account of Lenders;
funds received by Administrative Agent after that time on such due date
shall be deemed to have been paid by Borrower on the next succeeding
Business Day. Notwithstanding the foregoing, payments of amounts deposited
in the Collateral Account pursuant to the proviso to subsection
2.4B(iii)(a) shall be deemed to have been paid by Borrower on the
applicable date or dates such amounts are applied to prepay LIBOR Loans.
Borrower hereby authorizes Administrative Agent to charge its accounts
with Administrative Agent in order to cause timely payment to be made to
Administrative Agent of all principal, interest, fees and expenses due
hereunder (subject to sufficient funds being available in its accounts for
that purpose).
(ii) APPLICATION OF PAYMENTS. Prior to any payments being
applied to principal or interest under this Agreement or under the Notes,
such payments shall first be applied to any outstanding and payable fees,
costs, expenses, indemnities or other amounts (aside from principal or
interest due under the Loan Documents), as determined in the reasonable
opinion of Administrative Agent.
(iii) APPLICATION OF PAYMENTS TO PRINCIPAL AND INTEREST. Except
as provided in subsection 2.2C, all payments in respect of the principal
amount of any Loan shall include payment of accrued interest on the
principal amount being repaid or prepaid, and all such payments (and, in
any event, any payments in respect of any Loan on a date when interest is
due and payable with respect to such Loan) shall be applied to the payment
of interest before application to principal.
(iv) APPORTIONMENT OF PAYMENTS. Aggregate principal and interest
payments in respect of Term Loans and Revolving Loans shall be apportioned
among all outstanding Loans to which such payments relate, in each case
proportionately to Lenders' respective Pro Rata Shares. Administrative
Agent shall promptly distribute to each Lender, at its primary address set
forth below its name on the appropriate signature page hereof or at such
other address as such Lender may request, its Pro Rata Share of all such
payments received by Administrative Agent and the commitment fees of such
Lender, if any, when received by Administrative Agent pursuant to
subsection 2.3. Notwithstanding the foregoing provisions of this
subsection 2.4C(iv), if, pursuant to the provisions of subsection 2.6C,
any Notice of Conversion/Continuation is withdrawn as to any Affected
Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro
Rata Share of any LIBOR Loans, Administrative Agent shall give effect
thereto in apportioning payments received thereafter.
(v) PAYMENTS ON BUSINESS DAYS. Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day,
such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the payment of
interest hereunder or of the commitment fees hereunder, as the case may
be.
(vi) NOTATION OF PAYMENT. Each Lender agrees that before
disposing of any Note held by it, or any part thereof (other than by
granting participations therein), that Lender will use reasonable efforts
to make a notation thereon of all Loans evidenced by that Note and all
principal payments previously made thereon and of the date to which
interest thereon has been paid; PROVIDED that the failure to make (or any
error in the making of) a notation of any Loan made under such Note shall
not limit or otherwise affect the obligations of Borrower hereunder or
under such Note with respect to any Loan or any payments of principal or
interest on such Note; provided, further, that in the event of any
inconsistency, the Register shall govern (absent manifest error).
D. APPLICATION OF PROCEEDS OF COLLATERAL AND PAYMENTS AFTER
EVENT OF DEFAULT.
(i) APPLICATION OF CERTAIN PAYMENTS AND PROCEEDS OF COLLATERAL.
All proceeds received by Administrative Agent in respect of any sale of,
collection from, or other realization upon all or any part of the
Collateral under any Collateral Document may, in the discretion of
Administrative Agent, be held by Administrative Agent as Collateral for,
and/or (then or at any time thereafter) applied in full or in part by
Administrative Agent against, the applicable Secured Obligations (as
defined in such Collateral Document) in the following order of priority:
(a) To the payment of all costs and expenses of such
sale, collection or other realization, including reasonable
compensation to Administrative Agent and its agents and counsel,
and all other expenses, liabilities and advances made or incurred
by Administrative Agent in connection therewith, and all amounts
for which Administrative Agent is entitled to compensation,
reimbursement and indemnification under such Collateral Document
and all advances made by Administrative Agent thereunder for the
account of the applicable Loan Party, and to the payment of all
costs and expenses paid or incurred by Administrative Agent in
connection with the exercise of any right or remedy under such
Collateral Document, all in accordance with the terms of this
Agreement and such Collateral Document;
(b) thereafter, to the extent of any excess such
proceeds, to the payment of all other Secured Obligations (as
defined in such Collateral Document) for the ratable benefit of
the holders thereof; and
(c) thereafter, to the extent of any excess such
proceeds, to the payment to or upon the order of such Loan Party
or to whosoever may be lawfully entitled to receive the same or as
a court of competent jurisdiction may direct.
(ii) APPLICATION OF PAYMENTS UNDER SUBSIDIARY GUARANTY. All
payments received by Administrative Agent under the 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 Subsidiary Guaranty,
including reasonable compensation to Administrative Agent and its
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 Subsidiary
Guaranty;
(b) thereafter, to the extent of any excess such
payments, to the payment of all other Guarantied Obligations (as
defined in the Subsidiary Guaranty for the ratable benefit of the
holders thereof); and
(c) thereafter, to the extent of any excess such
payments, to the payment to the applicable Subsidiary Guarantor or
to whosoever may be lawfully entitled to receive the same or as a
court of competent jurisdiction may direct.
2.5 USE OF PROCEEDS.
A. TERM LOANS. The proceeds of the Term Loans, together with
the proceeds of the debt capitalization of Borrower described in subsection
4.1D, shall be applied by Borrower to fund the Transactions.
B. REVOLVING LOANS; SWING LINE LOANS. The proceeds of any
other Revolving Loans and any Swing Line Loans shall be applied by Borrower for
working capital and other general corporate purposes, which may include the
making of intercompany loans to any of Borrower's wholly-owned domestic
Subsidiaries, in accordance with subsection 7.1(iv), for their own general
corporate purposes.
C. MARGIN REGULATIONS. No portion of the proceeds of any
borrowing under this Agreement shall be used by Borrower or any of its
Subsidiaries in any manner that might cause the borrowing or the application of
such proceeds to violate Regulation T, Regulation U or Regulation X of the Board
of Governors of the Federal Reserve System or any other regulation of such Board
or to violate the Exchange Act, in each case as in effect on the date or dates
of such borrowing and such use of proceeds.
2.6 SPECIAL PROVISIONS GOVERNING LIBOR LOANS.
Notwithstanding any other provision of this Agreement to the
contrary, the following provisions shall govern with respect to LIBOR Loans as
to the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as
practicable after 12:00 Noon (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 LIBOR 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
Borrower and each Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. If
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 LIBOR 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 LIBOR, Administrative Agent
shall on such date give notice (by telefacsimile or by telephone confirmed in
writing) to Borrower and each Lender of such determination, whereupon (i) no
Loans may be made as, or converted to, LIBOR Loans until such time as
Administrative Agent notifies Borrower and Lenders that the circumstances giving
rise to such notice no longer exist and (ii) any Notice of Borrowing or Notice
of Conversion/Continuation given by Borrower with respect to the Loans in
respect of which such determination was made shall be deemed to be rescinded by
Borrower.
C. ILLEGALITY OR IMPRACTICABILITY OF LIBOR LOANS. If on any
date any Lender shall have determined (which determination shall be final,
conclusive and binding upon all parties hereto but shall be made only after
consultation with Borrower and Administrative Agent) that the making,
maintaining or continuation of its LIBOR 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 Borrower and Administrative Agent of such
determination (which notice Administrative Agent shall promptly transmit to each
other Lender by telefacsimile or electronic mail). Thereafter (a) the obligation
of the Affected Lender to make Loans as, or to convert Loans to, LIBOR Loans
shall be suspended until such notice shall be withdrawn by the Affected Lender,
(b) to the extent such determination by the Affected Lender relates to a LIBOR
Loan then being requested by Borrower pursuant to a Notice of Borrowing or a
Notice of Conversion/Continuation, the Affected Lender shall make such Loan as
(or convert such Loan to, as the case may be) a Base Rate Loan, (c) the Affected
Lender's obligation to maintain its outstanding LIBOR Loans (the "AFFECTED
LOANS") shall be terminated at the earlier to occur of the expiration of the
Interest Period then in effect with respect to the Affected Loans or when
required by law, and (d) the Affected Loans shall automatically convert into
Base Rate Loans on the date of such termination. Notwithstanding the foregoing,
to the extent a determination by an Affected Lender as described above relates
to a LIBOR Loan then being requested by Borrower
pursuant to a Notice of Borrowing or a Notice of Conversion/Continuation,
Borrower shall have the option, subject to the provisions of subsection 2.6D, to
rescind such Notice of Borrowing or Notice of Conversion/Continuation as to all
Lenders by giving notice (by telefacsimile or by telephone confirmed in writing)
to Administrative Agent of such rescission on the date on which the Affected
Lender gives notice of its determination as described above (which notice of
rescission Administrative Agent shall promptly transmit to each other Lender by
telefacsimile or electronic mail). Except as provided in the immediately
preceding sentence, nothing in this subsection 2.6C shall affect the obligation
of any Lender other than an Affected Lender to make or maintain Loans as, or to
convert Loans to, LIBOR Loans in accordance with the terms of this Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST
PERIODS. Borrower shall compensate each Lender, upon written request by that
Lender (which request shall set forth the basis for requesting such amounts),
for all reasonable losses, expenses and liabilities (including any interest paid
by that Lender to lenders of funds borrowed by it to make or carry its LIBOR
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 LIBOR Loan does not occur on a date specified therefor in a Notice of
Borrowing or a telephonic request therefor, or a conversion to or continuation
of any LIBOR Loan does not occur on a date specified therefor in a Notice of
Conversion/Continuation or a telephonic request for conversion or continuation,
(ii) if any prepayment (including any prepayment described in subsection 2.4B(i)
or conversion occasioned by the circumstances described in subsection 2.6C) or
other principal payment or any conversion of any of its LIBOR Loans occurs on a
date prior to the last day of an Interest Period applicable to that Loan, (iii)
if any prepayment of any of its LIBOR Loans is not made on any date specified in
a notice of prepayment given by Borrower, or (iv) as a consequence of any other
default by Borrower in the repayment of its LIBOR Loans when required by the
terms of this Agreement.
E. BOOKING OF LIBOR LOANS. Any Lender may make, carry or
transfer LIBOR Loans at, to, or for the account of any of its branch offices or
the office of an Affiliate of that Lender.
F. ASSUMPTIONS CONCERNING FUNDING OF LIBOR LOANS. Calculation
of all amounts payable to a Lender under this subsection 2.6 and under
subsection 2.7A shall be made as though that Lender had actually funded each of
its relevant LIBOR Loans through the purchase of a Eurodollar deposit bearing
interest at the rate obtained pursuant to clause (i) of the definition of
Adjusted LIBOR in an amount equal to the amount of such LIBOR 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 LIBOR Loans in any manner it sees fit and the
foregoing assumptions shall be utilized only for the purposes of calculating
amounts payable under this subsection 2.6 and under subsection 2.7A.
G. LIBOR LOANS AFTER DEFAULT. After the occurrence of and
during the continuation of a Potential Event of Default or an Event of Default,
(i) Borrower may not elect to
have a Loan be made or maintained as, or converted to, a LIBOR Loan after the
expiration of any Interest Period then in effect for that Loan and (ii) subject
to the provisions of subsection 2.6D, any Notice of Borrowing or Notice of
Conversion/Continuation given by Borrower with respect to a requested borrowing
or conversion/continuation that has not yet occurred shall be deemed to be
rescinded by Borrower.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to the
provisions of subsection 2.7B (which shall be controlling with respect to the
matters covered thereby), if 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 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 LIBOR Loans
that are reflected in the definition of Adjusted LIBOR); 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, Borrower shall promptly pay to such
Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as may be necessary to compensate such Lender
for any such increased cost or reduction in amounts received or receivable
hereunder. Such Lender shall deliver to Borrower (with a copy to Administrative
Agent) a written statement, setting forth in reasonable detail the basis for
calculating the additional amounts owed to such Lender under this subsection
2.7A, which statement shall be conclusive and binding upon all parties hereto
absent manifest error.
B. WITHHOLDING OF TAXES.
(i) PAYMENTS TO BE FREE AND CLEAR. Unless otherwise required by
applicable law, all sums payable by Borrower under this Agreement and the
other Loan Documents shall be paid free and clear of, and without any
deduction or withholding on account of, any Tax 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
Borrower.
(ii) GROSSING-UP OF PAYMENTS. If Borrower 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 Borrower to Administrative Agent
or any Lender under any of the Loan Documents:
(a) Borrower shall notify Administrative Agent of any
such requirement or any change in any such requirement as soon as
Borrower becomes aware of it;
(b) Borrower shall pay any such Tax when such Tax is
due, regardless of whether the liability for payment of such Tax
(i) is imposed on Borrower itself, Administrative Agent or any
Lender or (ii) relates to any portion of any sums paid or payable
to any Lender under any of the Loan Documents with respect to
which such Lender does not act for its own account;
(c) the sum payable by Borrower 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, Borrower shall deliver to
Administrative Agent and/or other affected parties 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 (i) to the extent such additional amount
relates to a portion of any sums paid or payable to such Lender under any
of the Loan Documents with respect to which such Lender does not act for
its own account, or (ii) except to the extent that any change after the
date such Lender became a Lender in any such requirement for a deduction,
withholding or payment as is mentioned therein shall result in an increase
in the rate of such deduction, withholding or payment from that in effect
at the date on which such Lender became a Lender, in respect of payments
to such Lender.
(iii) EVIDENCE OF EXEMPTION FROM U.S. WITHHOLDING TAX.
(a) Each Lender that is organized under the laws of any
jurisdiction other than the United States or any state or other
political subdivision thereof (for purposes of this subsection
2.7B(iii), a "NON-US LENDER") shall deliver to Administrative
Agent and to Borrower, 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 Borrower
or Administrative Agent (each in the reasonable exercise of its
discretion), two original copies of Internal Revenue Service Form
W-8BEN or W-8ECI (or any successor forms) properly completed and
duly executed by such Non-US Lender, or, in the case of a Non-US
Lender claiming exemption from United States federal withholding
tax under Section 871(h) or 881(c) of the Internal Revenue Code
with respect to payments of "portfolio interest", a form W-8BEN,
and, in the case of a Non-US Lender that has certified in writing
to Administrative Agent that it is not a "bank" (as defined in
Section 881(c)(3)(A) of the Internal Revenue Code), a certificate
of such Non-US Lender certifying that such Non-US Lender is not
(i) a "bank" for purposes of Section 881(c) of the Internal
Revenue Code, (ii) a ten-percent shareholder (within the meaning
of Section 871(h)(3)(B) of the Internal Revenue Code) of Borrower,
or (iii) a controlled foreign corporation related to Borrower
(within the meaning of Section 864(d)(4) of the Internal Revenue
Code) in each case together with any other certificate or
statement of exemption required under the Internal Revenue Code or
the regulations issued thereunder to establish that such Non-US
Lender is not subject to United States withholding tax with
respect to any payments to such Non-US Lender of interest payable
under any of the Loan Documents.
(b) Each Non-US Lender, to the extent it does not act or
ceases to act for its own account with respect to any portion of
any sums paid or payable to such Lender under any of the Loan
Documents (for example, in the case of a typical participation by
such Lender), shall deliver to Administrative Agent and to
Borrower, on or prior to the Closing Date (in the case of each
Lender listed on the signatures pages hereof), on or prior to the
date of the Assignment Agreement pursuant to which it becomes a
Lender (in the case of each other Lender), or on such later date
when such Non-US Lender ceases to act for its own account with
respect to any portion of any such sums paid or payable, and at
such other times as may be necessary in the determination of
Borrower or Administrative Agent (each in the reasonable exercise
of its discretion), (1) two original copies of the forms or
statements required to be provided by such Non-US Lender under
subsection 2.7B(iii)(a), properly completed and duly executed by
such Non-US Lender, to establish the portion of any such sums paid
or payable with respect to
which such Non-US Lender acts for its own account that is not
subject to United States withholding tax, and (2) two original
copies of Internal Revenue Service Form W-8IMY (or any successor
forms) properly completed and duly executed by such Non-US Lender,
together with any information, if any, such Non-US Lender chooses
to transmit with such form, and any other certificate or statement
of exemption required under the Internal Revenue Code or the
regulations issued thereunder, to establish that such Non-US
Lender is not acting for its own account with respect to a portion
of any such sums payable to such Non-US Lender.
(c) Each Non-US Lender hereby agrees, from time to time
after the initial delivery by such Non-US Lender of such forms,
whenever a lapse in time or change in circumstances renders such
forms, certificates or other evidence so delivered obsolete or
inaccurate in any material respect or if, by virtue of a change in
law or regulations, such forms are no longer valid evidence of a
person's exemption from withholding tax which is reasonably
satisfactory to Borrower, that such Non-US Lender shall promptly
(1) deliver to Administrative Agent and to Borrower two original
copies of renewals, amendments or additional or successor forms,
properly completed and duly executed by such Non-US Lender,
together with any other certificate or statement of exemption
required in order to confirm or establish that such Non-US Lender
is not subject to United States withholding tax with respect to
payments to such Non-US Lender under the Loan Documents and, as
the case may be, that such Non-US Lender does not act for its own
account with respect to any portion of any such payments, or (2)
notify Administrative Agent and Borrower of its inability to
deliver any such forms, certificates or other evidence.
(d) Borrower shall not be required to pay any additional
amount to any Non-US Lender under clause (c) of subsection
2.7B(ii) if such Non-US Lender shall have failed to satisfy the
requirements of clause (a), (b) or (c)(1) of this subsection
2.7B(iii); PROVIDED that if such Non-US Lender shall have
satisfied the requirements of subsection 2.7B(iii)(a) on the date
such Non-US Lender became a Lender, nothing in this subsection
2.7B(iii)(d) shall relieve Borrower of its obligation to pay any
amounts pursuant to subsection 2.7B(ii)(c) if, 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 Non-US Lender is no
longer properly entitled to deliver forms, certificates or other
evidence at a subsequent date establishing the fact that such
Non-US Lender is not subject to withholding as described in
subsection 2.7B(iii)(a).
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have determined
that the adoption, effectiveness, phase-in or applicability after the date
hereof of any law, rule or regulation (or any provision thereof) regarding
capital adequacy, or any change therein or in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or its applicable lending office) with any guideline, request or
directive regarding capital adequacy (whether or not having the force of law) of
any such Governmental Authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on the capital of such Lender or any corporation controlling such
Lender as a consequence of, or with reference to, such Lender's Loans or
Commitments or Letters of Credit or participations therein or other obligations
hereunder with respect to the Loans or the Letters of Credit to a level below
that which such Lender or such controlling corporation could have achieved but
for such adoption, effectiveness, phase-in, applicability, change or compliance
(taking into consideration the policies of such Lender or such controlling
corporation with regard to capital adequacy), then from time to time, within
five Business Days after receipt by Borrower from such Lender of the statement
referred to in the next sentence, Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such controlling
corporation on an after-tax basis for such reduction. Such Lender shall deliver
to Borrower (with a copy to Administrative Agent) a written statement, setting
forth in reasonable detail the basis of the calculation of such additional
amounts, which statement shall be conclusive and binding upon all parties hereto
absent manifest error.
2.8 OBLIGATION OF LENDERS AND ISSUING LENDERS TO MITIGATE.
Each Lender and Issuing Lender agrees that, as promptly as
practicable after the officer of such Lender or Issuing Lender responsible for
administering the Loans or Letters of Credit of such Lender or Issuing Lender,
as the case may be, becomes aware of the occurrence of an event or the existence
of a condition that would cause such Lender to become an Affected Lender or that
would entitle such Lender or Issuing Lender to receive payments under subsection
2.7 or subsection 3.6, it will, to the extent not inconsistent with the internal
policies of such Lender or Issuing Lender and any applicable legal or regulatory
restrictions, use reasonable efforts (i) to make, issue, fund or maintain the
Commitments of such Lender or the affected Loans or Letters of Credit of such
Lender or Issuing Lender through another lending or letter of credit office of
such Lender or Issuing Lender, or (ii) take such other measures as such Lender
or Issuing Lender may deem reasonable, if as a result thereof the circumstances
which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such
Lender or Issuing Lender pursuant to subsection 2.7 or subsection 3.6 would be
materially reduced and if, as determined by such Lender or Issuing Lender in its
sole discretion, the making, issuing, funding or maintaining of such Commitments
or Loans or Letters of Credit through such other lending or letter of credit
office or in accordance with such other measures, as the case may be, would not
otherwise materially adversely affect such Commitments or Loans or Letters of
Credit or the interests of such Lender or Issuing Lender; PROVIDED that such
Lender or Issuing Lender will not be obligated to utilize such other lending or
letter of credit office pursuant to this subsection 2.8 unless Borrower agrees
to pay all incremental expenses incurred by such Lender or Issuing Lender as a
result of utilizing such other lending or letter of credit office as described
in clause (i) above. A certificate as to the amount of any such expenses payable
by Borrower pursuant to this subsection 2.8 (setting forth in reasonable detail
the basis for requesting such amount) submitted by such Lender or Issuing Lender
to Borrower (with a copy to Administrative Agent) shall be conclusive absent
manifest error.
SECTION 3. LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF
PARTICIPATIONS THEREIN.
A. LETTERS OF CREDIT. In addition to Borrower requesting that
Lenders make Revolving Loans pursuant to subsection 2.1A(iii) and that Swing
Line Lender make Swing Line Loans pursuant to subsection 2.1A(iv), Borrower may
request, in accordance with the provisions of this subsection 3.1, from time to
time during the period from the Closing Date to but excluding the Revolving Loan
Commitment Termination Date, that one or more Lenders issue Letters of Credit
for the account of Borrower for the purposes specified in the definition of
Letters of Credit. Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of Borrower herein set forth,
any one or more Lenders may, but (except as provided in subsection 3.1B(iii))
shall not be obligated to, issue such Letters of Credit in accordance with the
provisions of this subsection 3.1; PROVIDED that Borrower shall not request that
any Lender issue (and no Lender shall issue):
(i) any Letter of Credit if, after giving effect to such
issuance, the Total Utilization of Revolving Loan Commitments would exceed
the lesser of the Revolving Loan Commitments or the Borrowing Base then in
effect;
(ii) any Letter of Credit if, after giving effect to such
issuance, the Letter of Credit Usage would exceed $7,500,000;
(iii) any Letter of Credit having an expiration date later than
the earlier of (a) ten days prior to the Revolving Loan Commitment
Termination Date and (b) the date which is one year from the date of
issuance of such Letter of Credit; PROVIDED that the immediately preceding
clause (b) shall not prevent any Issuing Lender (but subject to clause (a)
above) from agreeing that a Letter of Credit will automatically be
extended for one or more successive periods not to exceed one year each
unless such Issuing Lender elects not to extend for any such additional
period; and PROVIDED, FURTHER that such Issuing Lender shall elect not to
extend such Letter of Credit if it has knowledge that an Event of Default
or Potential Event of Default has occurred and is continuing (and has not
been waived in accordance with subsection 10.6) at the time such Issuing
Lender must elect whether or not to allow such extension;
(iv) any Letter of Credit denominated in a currency other than
Dollars
(v) any Letter of Credit with a face amount of less than
$10,000, or any Letter of Credit with a face amount of less than $100,000
if after giving effect to such issuance there shall be more than 15
Letters of Credit outstanding with face amounts of less than $100,000; or
(vi) any Letter of Credit that is otherwise unacceptable to the
applicable Issuing Lender in its reasonable discretion.
B. MECHANICS OF ISSUANCE.
(i) NOTICE OF ISSUANCE. Whenever Borrower desires the issuance
of a Letter of Credit, it shall deliver to Administrative Agent a Notice
of Issuance of Letter of Credit substantially in the form of EXHIBIT III
annexed hereto no later than 12:00 Noon (New York City time) at least five
Business Days, or in each case such shorter period as may be agreed to by
the Issuing Lender in any particular instance, in advance of the proposed
date of issuance. The Notice of Issuance of Letter of Credit shall specify
(a) the proposed date of issuance (which shall be a Business Day), (b) the
face amount of the Letter of Credit, (c) the expiration date of the Letter
of Credit, (d) the name and address of the beneficiary, and (e) either the
verbatim text of the proposed Letter of Credit or the proposed terms and
conditions thereof, including a precise description of any documents to be
presented by the beneficiary which, if presented by the beneficiary prior
to the expiration date of the Letter of Credit, would require the Issuing
Lender to make payment under the Letter of Credit; PROVIDED that the
Issuing Lender, in its reasonable discretion, may require changes in the
text of the proposed Letter of Credit or any such documents; and PROVIDED,
FURTHER that no Letter of Credit shall require payment against a
conforming draft to be made thereunder on the same Business Day (under the
laws of the jurisdiction in which the office of the Issuing Lender to
which such draft is required to be presented is located) that such draft
is presented if such presentation is made after 12:00 Noon (in the time
zone of such office of the Issuing Lender) on such Business Day.
(ii) UPDATE OF CERTIFICATIONS. Borrower shall notify the
applicable Issuing Lender (and Administrative Agent, if Administrative
Agent is not such Issuing Lender) prior to the issuance of any Letter of
Credit if any of the matters to which Borrower is required to certify in
the applicable Notice of Issuance of Letter of Credit is no longer true
and correct as of the proposed date of issuance of such Letter of Credit,
and upon the issuance of any Letter of Credit Borrower shall be deemed to
have re-certified, as of the date of such issuance, as to the matters to
which Borrower is required to certify in the applicable Notice of Issuance
of Letter of Credit.
(iii) DETERMINATION OF ISSUING LENDER. Upon receipt by
Administrative Agent of a Notice of Issuance of Letter of Credit pursuant
to subsection 3.1B(i) requesting the issuance of a Letter of Credit, if
Administrative Agent elects to issue such Letter of Credit, Administrative
Agent shall promptly so notify Borrower, and Administrative Agent shall be
the Issuing Lender with respect thereto. If Administrative Agent, in its
sole discretion, elects not to issue such Letter of Credit, Administrative
Agent shall promptly so notify Borrower, whereupon Borrower may request
any other Lender to issue such Letter of Credit by delivering to such
Lender a copy of the applicable Notice of Issuance of Letter of Credit.
Any Lender so requested to issue such Letter of Credit shall promptly
notify Borrower and Administrative Agent whether or not, in its sole
discretion, it has elected to issue such Letter of Credit, and any such
Lender that so elects to issue such Letter of Credit shall be the Issuing
Lender with respect thereto.
(iv) ISSUANCE OF LETTER OF CREDIT. Upon satisfaction or waiver
(in accordance with subsection 10.6) of the conditions set forth in
subsection 4.3, the Issuing Lender
shall issue the requested Letter of Credit in accordance with the Issuing
Lender's standard operating procedures.
(v) NOTIFICATION TO LENDERS. Upon the issuance of any Letter of
Credit, the applicable Issuing Lender shall promptly notify Administrative
Agent and each other Lender of such issuance by telefacsimile or
electronic mail (or by telephone promptly confirmed by telefacsimile or
electronic mail). Promptly after receipt of such notice (or, if
Administrative Agent is the Issuing Lender, together with such notice),
Administrative Agent shall notify each Lender by telefacsimile or
electronic mail (or by telephone promptly confirmed by telefacsimile or
electronic mail) of the amount of such Lender's respective participation
in such Letter of Credit, determined in accordance with subsection 3.1C.
C. LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS OF CREDIT.
Immediately upon the issuance of each Letter of Credit, each Lender with a
Revolving Loan Commitment shall be deemed to, and hereby agrees to, have
irrevocably purchased from the Issuing Lender a participation in such Letter of
Credit and any drawings honored thereunder in an amount equal to such Lender's
Pro Rata Share of the maximum amount which is or at any time may become
available to be drawn thereunder.
3.2 LETTER OF CREDIT FEES.
Borrower agrees to pay the following amounts with respect to
Letters of Credit issued hereunder:
(i) with respect to each Letter of Credit, (a) a fronting fee,
payable directly to the applicable Issuing Lender for its own account,
equal to 0.25% per annum of the daily amount available to be drawn under
such Letter of Credit, and (b) a letter of credit fee, payable to
Administrative Agent for the account of those Lenders with a Revolving
Loan Commitment, equal to the Applicable LIBOR Margin for Revolving Loans
multiplied by the daily amount available to be drawn under such Letter of
Credit, each such fronting fee or letter of credit fee to be payable in
arrears on the last Business Day of each March, June, September and
December of each Fiscal Year commencing on the first such date to occur
after the Closing Date, and computed on the basis of a 360-day year for
the actual number of days elapsed; and
(ii) with respect to the issuance, amendment or transfer of each
Letter of Credit and each payment of a drawing made thereunder (without
duplication of the fees payable under clause (i) above), documentary and
processing charges payable directly to the applicable Issuing Lender for
its own account in accordance with such Issuing Lender's standard schedule
for such charges in effect at the time of such issuance, amendment,
transfer or payment, as the case may be.
For purposes of calculating any fees payable under clauses (i) and (ii) of this
subsection 3.2, the daily amount available to be drawn under any Letter of
Credit shall be determined as of the close of business on any date of
determination. Promptly upon receipt by Administrative Agent of any
amount described in clause (i) or (ii) of this subsection 3.2, Administrative
Agent shall distribute to each Lender with a Revolving Loan Commitment its Pro
Rata Share of such amount.
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS PAID UNDER LETTERS OF
CREDIT.
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO DRAWINGS.
In determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to examine the
documents delivered under such Letter of Credit with reasonable care to
ascertain whether they appear on their face to be in accordance with the terms
and conditions of such Letter of Credit.
B. REIMBURSEMENT BY BORROWER OF AMOUNTS PAID UNDER LETTERS OF
CREDIT. If an Issuing Lender has determined to honor a drawing under a Letter of
Credit issued by it, such Issuing Lender shall immediately notify Borrower and
Administrative Agent, and Borrower shall reimburse such Issuing Lender on or
before the Business Day immediately following the date on which such drawing is
honored (the "REIMBURSEMENT DATE") in an amount in Dollars and in same day funds
equal to the amount of such honored drawing plus interest thereon as provided in
subsection 3.3D(i) for the period from the date of drawing to the date on which
such Revolving Loans are made (the "LC REIMBURSEMENT AMOUNT"); PROVIDED that,
anything contained in this Agreement to the contrary notwithstanding, (i) unless
Borrower shall have notified Administrative Agent and such Issuing Lender prior
to 10:00 A.M. (New York City time) on the date such drawing is honored that
Borrower intends to reimburse such Issuing Lender for the LC Reimbursement
Amount with funds other than the proceeds of Revolving Loans, Borrower shall be
deemed to have given a timely Notice of Borrowing to Administrative Agent
requesting Lenders to make Revolving Loans that are Base Rate Loans on the
Reimbursement Date in an amount in Dollars equal to the LC Reimbursement Amount
(and Administrative Agent shall promptly give notice thereof to each Lender by
telefacsimile or electronic mail or by telephone promptly confirmed by
telefacsimile or electronic mail) and (ii) subject to satisfaction or waiver of
the conditions specified in subsection 4.2B, Lenders shall, on or before the
Business Day immediately following the Reimbursement Date, make Revolving Loans
that are Base Rate Loans in the LC Reimbursement Amount, the proceeds of which
shall be applied directly by Administrative Agent to reimburse such Issuing
Lender in an amount equal to the LC Reimbursement Amount; and PROVIDED, FURTHER
that if for any reason proceeds of Revolving Loans are not received by such
Issuing Lender on or before the Business Day immediately following the
Reimbursement Date in an amount equal to the LC Reimbursement Amount, Borrower
shall reimburse such Issuing Lender, on demand, in an amount in same day funds
equal to the excess of (x) the LC Reimbursement Amount over (y) the aggregate
amount of such Revolving Loans, if any, which are so received. Nothing in this
subsection 3.3B shall be deemed to relieve any Lender from its obligation to
make Revolving Loans on the terms and conditions set forth in this Agreement,
and Borrower shall retain any and all rights it may have against any Lender
resulting from the failure of such Lender to make such Revolving Loans under
this subsection 3.3B. The Issuing Lender may honor or dishonor any drawing in
accordance with the terms of the Letter of Credit without regard to any
instruction of the Borrower.
C. PAYMENT BY LENDERS OF UNREIMBURSED AMOUNTS PAID UNDER
LETTERS OF CREDIT.
(i) PAYMENT BY LENDERS. If Borrower shall fail for any reason
to reimburse any Issuing Lender as provided in subsection 3.3B in an
amount equal to the amount of any drawing honored by such Issuing Lender
under a Letter of Credit issued by it, such Issuing Lender shall promptly
notify each other Lender with a Revolving Loan Commitment of the
unreimbursed amount of such honored drawing and of such other Lender's
respective participation therein based on such Lender's Pro Rata Share of
the Revolving Loan Commitment by telefacsimile or by telephone promptly
confirmed by telefacsimile. Each Lender with a Revolving Loan Commitment
shall make available to such Issuing Lender an amount equal to its
respective participation, in Dollars and in same day funds, at the office
of such Issuing Lender specified in such notice, not later than 12:00 Noon
(New York City time) on the first Business Day (under the laws of the
jurisdiction in which such office of such Issuing Lender is located) after
the date notified by such Issuing Lender. If any Lender with a Revolving
Loan Commitment fails to make available to such Issuing Lender on such
Business Day the amount of such Lender's participation in such Letter of
Credit as provided in this subsection 3.3C, such Issuing Lender shall be
entitled to recover such amount on demand from such Lender together with
interest thereon at the rate customarily used by such Issuing Lender for
the correction of errors among banks for three Business Days and
thereafter at the Base Rate. Nothing in this subsection 3.3C shall be
deemed to prejudice the right of any Lender to recover from any Issuing
Lender any amounts made available by such Lender to such Issuing Lender
pursuant to this subsection 3.3C if it is determined by the final judgment
of a court of competent jurisdiction that the payment with respect to a
Letter of Credit by such Issuing Lender in respect of which payment was
made by such Lender constituted gross negligence or willful misconduct on
the part of such Issuing Lender.
(ii) DISTRIBUTION TO LENDERS OF REIMBURSEMENTS RECEIVED FROM
BORROWER. If any Issuing Lender shall have been reimbursed by other
Lenders pursuant to subsection 3.3C(i) for all or any portion of any
drawing honored by such Issuing Lender under a Letter of Credit issued by
it, such Issuing Lender shall promptly distribute to each other Lender
with a Revolving Loan Commitment which has paid all amounts payable by it
under subsection 3.3C(i) with respect to such honored drawing such other
Lender's Pro Rata Share of the Revolving Loan Commitment of all payments
subsequently received by such Issuing Lender from Borrower in
reimbursement of such honored drawing when such payments are received. Any
such distribution shall be made to a Lender at its primary address set
forth below its name on the appropriate signature page hereof or at such
other address as such Lender may request.
D. INTEREST ON AMOUNTS PAID UNDER LETTERS OF CREDIT.
(i) PAYMENT OF INTEREST BY BORROWER. Borrower agrees to pay to
each Issuing Lender, with respect to drawings honored under any Letters of
Credit issued by it, interest on the amount paid by such Issuing Lender in
respect of each such honored drawing from the date a drawing is honored to
but excluding the date such amount is reimbursed by
Borrower (including any such reimbursement out of the proceeds of
Revolving Loans pursuant to subsection 3.3B) at a rate equal to (a) for
the period from the date such drawing is honored to but excluding the
Reimbursement Date, the rate then in effect under this Agreement with
respect to Revolving Loans that are Base Rate Loans and (b) thereafter, a
rate which is 2.00% per annum in excess of the rate of interest otherwise
payable under this Agreement with respect to Revolving Loans that are Base
Rate Loans. Interest payable pursuant to this subsection 3.3D(i) shall be
computed on the basis of a 365-day year for the actual number of days
elapsed in the period during which it accrues and shall be payable on
demand or, if no demand is made, on the date on which the related drawing
under a Letter of Credit is reimbursed in full.
(ii) DISTRIBUTION OF INTEREST PAYMENTS BY ISSUING LENDER.
Promptly upon receipt by any Issuing Lender of any payment of interest
pursuant to subsection 3.3D(i) with respect to a drawing honored under a
Letter of Credit issued by it, (a) such Issuing Lender shall distribute to
each other Lender with a Revolving Loan Commitment, out of the interest
received by such Issuing Lender in respect of the period from the date
such drawing is honored to but excluding the date on which such Issuing
Lender is reimbursed for the amount of such honored drawing (including any
such reimbursement out of the proceeds of Revolving Loans pursuant to
subsection 3.3B), the amount that such other Lender would have been
entitled to receive in respect of the letter of credit fee that would have
been payable in respect of such Letter of Credit for such period pursuant
to subsection 3.2 if no drawing had been honored under such Letter of
Credit, and (b) if such Issuing Lender shall have been reimbursed by other
Lenders pursuant to subsection 3.3C(i) for all or any portion of such
honored drawing, such Issuing Lender shall distribute to each other Lender
with a Revolving Loan Commitment which has paid all amounts payable by it
under subsection 3.3C(i) with respect to such honored drawing such other
Lender's Pro Rata Share of the Revolving Loan Commitment any interest
received by such Issuing Lender in respect of that portion of such honored
drawing so reimbursed by other Lenders with Revolving Loan Commitments for
the period from the date on which such Issuing Lender was so reimbursed by
other Lenders with Revolving Loan Commitments to but excluding the date on
which such portion of such honored drawing is reimbursed by Borrower. Any
such distribution shall be made to a Lender with a Revolving Loan
Commitment at its primary address set forth below its name on the
appropriate signature page hereof or at such other address as such Lender
with a Revolving Loan Commitment may request.
3.4 OBLIGATIONS ABSOLUTE.
The obligation of Borrower to reimburse each Issuing Lender for
drawings honored under the Letters of Credit issued by it and to repay any
Revolving Loans made by Lenders pursuant to subsection 3.3B and the obligations
of Lenders under subsection 3.3C(i) shall be unconditional and irrevocable and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances including any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, set-off, defense or other right
which Borrower or any Lender may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), any Issuing Lender or other Lender or any other
Person or, in the case of a Lender, against Borrower, whether in
connection with this Agreement, the transactions contemplated herein or
any unrelated transaction (including any underlying transaction between
Borrower or one of its Subsidiaries and the beneficiary for which any
Letter of Credit was procured);
(iii) any draft or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(iv) payment by the applicable Issuing Lender under any Letter
of Credit against presentation of a draft or other document which does not
substantially comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Borrower or any
of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by
any party thereto;
(vii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing;
PROVIDED, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question
(as determined by a final judgment of a court of competent jurisdiction).
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDERS' DUTIES.
A. INDEMNIFICATION. In addition to amounts payable as provided
in subsection 3.6, Borrower hereby agrees to protect, indemnify, pay and save
harmless each Issuing Lender and each other Lender from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable fees, expenses and disbursements of counsel and allocated
costs of internal counsel) which such Issuing Lender and each other Lender may
incur or be subject to as a consequence, direct or indirect, of (i) the issuance
of any Letter of Credit by such Issuing Lender, other than as a result of (a)
the gross negligence or willful misconduct of such Issuing Lender as determined
by a final judgment of a court of competent jurisdiction or (b) subject to the
following clause (ii), the wrongful dishonor by such Issuing Lender of a proper
demand for payment made under any Letter of Credit issued by it or (ii) the
failure of such Issuing Lender to honor a drawing under any such Letter of
Credit
as a result of any act or omission, whether rightful or wrongful, of any present
or future de jure or de facto Government Authority (all such acts or omissions
herein called "GOVERNMENTAL ACTS").
B. NATURE OF ISSUING LENDERS' DUTIES. As between Borrower and
any Issuing Lender, Borrower assumes all risks of the acts and omissions of, or
misuse of the Letters of Credit issued by such Issuing Lender by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation of
the foregoing, such Issuing Lender shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes beyond the
control of such Issuing Lender, including any Governmental Acts, and none of the
above shall affect or impair, or prevent the vesting of, any of such Issuing
Lender's or any other Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by any Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put such Issuing Lender or any
other Lender under any resulting liability to Borrower.
Notwithstanding anything to the contrary contained in this
subsection 3.5, Borrower shall retain any and all rights it may have against any
Issuing Lender for any liability arising solely out of the gross negligence or
willful misconduct of such Issuing Lender, as determined by a final judgment of
a court of competent jurisdiction.
3.6 INCREASED COSTS AND TAXES RELATING TO LETTERS OF CREDIT.
Subject to the provisions of subsection 2.7B (which shall be
controlling with respect to the matters covered thereby), if any Issuing Lender
or Lender shall determine (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto) that any law, treaty
or governmental rule, regulation or order, or any change therein or in the
interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or governmental authority, in each case that
becomes effective after the date hereof, or compliance
by any Issuing Lender or Lender with any guideline, request or directive issued
or made after the date hereof by any central bank or other governmental or
quasi-governmental authority (whether or not having the force of law):
(i) subjects such Issuing Lender or Lender (or its applicable
lending or letter of credit office) to any additional Tax (other than any
Tax on the overall net income of such Issuing Lender or Lender) with
respect to the issuing or maintaining of any Letters of Credit or the
purchasing or maintaining of any participations therein or any other
obligations under this Section 3, whether directly or by such being
imposed on or suffered by any particular Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve
(including any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement in respect of any Letters of Credit issued by any Issuing
Lender or participations therein purchased by any Lender; or
(iii) imposes any other condition (other than with respect to a
Tax matter) on or affecting such Issuing Lender or Lender (or its
applicable lending or letter of credit office) regarding this Section 3 or
any Letter of Credit or any participation therein;
and the result of any of the foregoing is to increase the cost to
such Issuing Lender or Lender of agreeing to issue, issuing or maintaining any
Letter of Credit or agreeing to purchase, purchasing or maintaining any
participation therein or to reduce any amount received or receivable by such
Issuing Lender or Lender (or its applicable lending or letter of credit office)
with respect thereto; then, in any case, Borrower shall promptly pay to such
Issuing Lender or Lender, upon receipt of the statement referred to in the next
sentence, such additional amount or amounts as may be necessary to compensate
such Issuing Lender or Lender for any such increased cost or reduction in
amounts received or receivable hereunder. Such Issuing Lender or Lender shall
deliver to Borrower a written statement, setting forth in reasonable detail the
basis for calculating the additional amounts owed to such Issuing Lender or
Lender under this subsection 3.6, which statement shall be conclusive and
binding upon all parties hereto absent manifest error.
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of
Letters of Credit hereunder are subject to the satisfaction of the following
conditions.
4.1 CONDITIONS TO TERM LOANS AND INITIAL REVOLVING LOANS AND SWING
LINE LOANS.
The obligations of Lenders to make the Term Loans and any
Revolving Loans and Swing Line Loans to be made on the Closing Date are, in
addition to the conditions precedent specified in subsection 4.2, subject to
prior or concurrent satisfaction of the following conditions:
A. LOAN PARTY DOCUMENTS. On or before the Closing Date,
Borrower shall, and shall cause each other Loan Party to, deliver to Lenders (or
to Administrative Agent with sufficient originally executed copies, where
appropriate, for each Lender) the following with respect to Borrower or such
Loan Party, as the case may be, each, unless otherwise noted, dated the Closing
Date:
(i) Copies of the Organizational Documents of such Person,
certified by the Secretary of State of its jurisdiction of organization
(other than with respect to Borrower and in the case of Borrower, its
predecessor in interest RA Temp) or, if such document is of a type that
may not be so certified, certified by the secretary or similar Officer of
the applicable Loan Party, together with a good standing certificate from
the Secretary of State of its jurisdiction of organization and each other
state in which such Person is qualified to do business 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 each of such jurisdictions, each dated a
recent date prior to the Closing Date;
(ii) Resolutions of the Governing Body of each Loan Party
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 secretary or similar Officer of such Person as being in full force and
effect without modification or amendment;
(iii) Signature and incumbency certificates of the Officers of
each Loan Party executing the Loan Documents to which it is a party;
(iv) Executed originals of the Loan Documents to which each Loan
Party is a party; and
(v) Such other documents as Administrative Agent may reasonably
request.
B. NO MATERIAL ADVERSE EFFECT. Since December 31, 2000, no
Material Adverse Effect (in the reasonable opinion of Administrative Agent)
shall have occurred.
C. FEES. Borrower shall have paid to Administrative Agent, for
distribution (as appropriate) to Administrative Agent and Lenders, the fees
payable on the Closing Date referred to in subsection 2.3.
D. CORPORATE AND CAPITAL STRUCTURE, AND OWNERSHIP.
(i) CORPORATE STRUCTURE. The corporate organizational structure
of Borrower, Holdings and its Subsidiaries shall be as set forth on
SCHEDULE 4.1D annexed hereto.
(ii) CAPITAL STRUCTURE AND OWNERSHIP. The capital structure and
ownership of Holdings and Borrower shall be as set forth on SCHEDULE 4.1D
annexed hereto.
E. FINANCIAL STATEMENTS; PRO FORMA FINANCIAL STATEMENTS. On or
before the Closing Date, Lenders shall have received from Borrower (i) final
audited financial
statements of RAC for the three most recent Fiscal Years for which such
financial statements are available; (ii) unaudited interim consolidated
financial statements of RAC for the fiscal quarter ending after the latest
audited financial statements delivered by Borrower pursuant to clause (i); (iii)
a final pro forma balance sheet of RAC and Borrower as of the date of the most
recent unaudited financial statements; (iv) a final income statement for the
most recent of the fiscal years provided pursuant to clause (i) and for the
interim period covering the fiscal quarters described in clause (ii), in each
case, giving pro forma effect to the Transactions, which pro forma financial
statements shall be in form and substance reasonably satisfactory to
Administrative Agent; (v) the most recently available projections of Borrower,
which projections shall be in form and substance reasonably satisfactory to
Administrative Agent; and (vi) a final reconciliation of adjustments for
Consolidated EBITDA, in form and substance satisfactory to Administrative Agent.
F. OPINIONS OF COUNSEL TO LOAN PARTIES.
(i) Lenders shall have received originally executed copies of
one or more favorable written opinions of Winston & ▇▇▇▇▇▇, counsel for
Loan Parties, in form and substance reasonably satisfactory to
Administrative Agent and its counsel, dated as of the Closing Date and
setting forth substantially the matters in the opinions designated in
EXHIBIT X annexed hereto and as to such other matters as Administrative
Agent acting on behalf of Lenders may reasonably request (this
Credit
Agreement constituting a written request by Borrower to such counsel to
deliver such opinions to Lenders).
(ii) OPINIONS OF DELAWARE COUNSEL. Delivery to Administrative
Agent of an opinion of counsel (which counsel shall be reasonably
satisfactory to Administrative Agent) under the laws of the State of
Delaware with respect to (a) the perfection of the security interests in
favor of Administrative Agent in the Collateral, (b) the effectiveness of
the consummation of the Transactions under the laws of the State of
Delaware, and (c) such other matters governed by the laws of such
jurisdiction regarding such security interests as Administrative Agent may
reasonably request, in each case in form and substance reasonably
satisfactory to Administrative Agent.
G. OPINIONS OF ADMINISTRATIVE AGENT'S COUNSEL. Lenders shall
have received originally executed copies of one or more favorable written
opinions of O'Melveny & ▇▇▇▇▇ LLP, counsel to Administrative Agent, dated
as of the Closing Date, substantially in the form of EXHIBIT XI annexed
hereto.
H. OPINIONS OF COUNSEL DELIVERED UNDER RELATED AGREEMENTS.
Administrative Agent and its counsel shall have received (for delivery to
Lenders) copies of each of the opinions of counsel (if any such opinions
are delivered under the Related Agreements) delivered to the parties under
the Related Agreements, together with a letter from each such counsel (to
the extent not inconsistent with such counsel's established internal
policies) authorizing Administrative Agent and Lenders to rely upon such
opinion to the same extent as though it were addressed to Administrative
Agent and Lenders.
I. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS.
Borrower shall have delivered to Administrative Agent (for delivery to
Lenders) an Officers' Certificate, in form and substance satisfactory to
Administrative Agent, to the effect that the representations and
warranties in Section 5 hereof are true, correct and complete in all
material respects on and as of the 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 Borrower 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 Administrative Agent.
J. EVIDENCE OF INSURANCE. Administrative Agent shall have
received a certificate from Borrower's insurance broker or other evidence
satisfactory to it that all insurance required to be maintained pursuant
to subsection 6.4B is in full force and effect and that Administrative
Agent on behalf of Lenders has been named as additional insured and/or
loss payee thereunder to the extent required under subsection 6.4B.
K. NECESSARY GOVERNMENTAL AUTHORIZATIONS AND CONSENTS;
EXPIRATION OF WAITING PERIODS, ETC. Borrower shall have obtained all
Governmental Authorizations and all consents of other Persons, in each
case that are necessary or advisable in connection with the Transactions
and the other transactions contemplated by the Loan Documents and the
Related Agreements and the continued operation of the business conducted
by Borrower and its Subsidiaries in substantially the same manner as
conducted by RAC prior to the Closing Date, except for the Governmental
Authorizations disclosed on SCHEDULE 5.2C annexed hereto. Each such
Governmental Authorization or consent shall be in full force and effect,
except in a case where the failure to obtain or maintain a Governmental
Authorization or consent, either individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect. All
applicable waiting periods shall have expired without any action being
taken or threatened by any competent authority that would restrain,
prevent or otherwise impose adverse conditions on the transactions
contemplated by the Loan Documents, the Transactions or the financing
thereof. No action, request for stay, petition for review or rehearing,
reconsideration, or appeal with respect to any of the foregoing shall be
pending, and the time for any applicable Government Authority to take
action to set aside its consent on its own motion shall have expired.
L. RELATED AGREEMENTS AND CONSUMMATION OF TRANSACTIONS.
(i) APPROVAL OF RELATED AGREEMENTS. Each of the Related
Agreements shall be satisfactory in form and substance to Administrative
Agent.
(ii) RELATED AGREEMENTS IN FULL FORCE AND EFFECT. Administrative
Agent shall have received a fully executed or conformed copy of each
Related Agreement and any documents executed in connection therewith, and
each Related Agreement shall be in full force and effect and no provision
thereof shall have been modified or waived in any
respect determined by Administrative Agent to be material, in each case
without the consent of Administrative Agent.
(iii) CONSUMMATION OF TRANSACTIONS The Transactions shall have
been consummated in accordance with the terms of the Combination Agreement
and the other Related Agreements. The Transactions shall have become
effective in accordance with the terms of the Combination Agreement and
the other Related Agreements, and the laws of the State of Delaware.
(iv) ISSUANCE OF CAPITAL STOCK OF BORROWER AND HOLDINGS.
Holdings shall have issued $15,143,000 of junior common units and
$51,000,000 of PIK Preferred Interests to Parent and $42,000,000 of senior
common units to Veritas Sub. All of the Capital Stock of Holdings shall
have been issued to Parent and Veritas Sub in accordance with the terms of
the Combination Agreement and the other Related Agreements, and shall be
fully paid. All of the Capital Stock of Borrower shall have been issued to
Holdings in accordance with the terms of the Combination Agreement and the
other Related Agreements, and shall be fully paid.
(v) TRANSACTION COSTS. The Transaction Costs shall not exceed
$16,500,000, and Administrative Agent shall have received evidence to its
satisfaction to such effect.
(vi) OFFICER'S CERTIFICATE. Administrative Agent shall have
received an Officer's Certificate of Borrower that clauses (ii) - (v)
above have been satisfied and stating that Borrower will proceed to
consummate the Transactions upon the making of the initial Loans.
M. SECURITY INTERESTS IN PERSONAL AND MIXED PROPERTY. To the
extent not otherwise satisfied pursuant to subsection 6.9D, Administrative Agent
shall have received evidence satisfactory to it that Holdings, Borrower and
Subsidiary Guarantors shall have taken or caused to be taken all such actions,
executed and delivered or caused to be executed and delivered all such
agreements, documents and instruments, and made or caused to be made all such
filings and recordings (other than the filing or recording of items described in
clauses (ii), (iii) and (iv) below) that may be necessary or, in the opinion of
Administrative Agent, desirable in order to create in favor of Administrative
Agent, for the benefit of Lenders, a valid and (upon such filing and recording)
perfected First Priority Lien (except for existing Liens) in the entire personal
and mixed property Collateral. Such actions shall include the following:
(i) SCHEDULES TO COLLATERAL DOCUMENTS. Delivery to
Administrative Agent of accurate and complete schedules to all of the
applicable Collateral Documents.
(ii) STOCK CERTIFICATES AND INSTRUMENTS. Delivery to
Administrative Agent of (a) certificates (which certificates shall be
accompanied by irrevocable undated stock powers, duly endorsed in blank
and otherwise satisfactory in form and substance to Administrative Agent)
representing all Capital Stock evidenced by certificates pledged pursuant
to the Security Agreement and (b) all promissory notes or other
instruments
(duly endorsed, where appropriate, in a manner satisfactory to
Administrative Agent) evidencing any Collateral;
(iii) LIEN SEARCHES AND UCC TERMINATION STATEMENTS. Delivery to
Administrative Agent of (a) the results of a recent search, by a Person
satisfactory to Administrative Agent, of all effective UCC financing
statements and fixture filings and all judgment and tax lien filings which
may have been made with respect to any personal or mixed property of any
Loan Party, together with copies of all such filings disclosed by such
search, and (b) UCC termination statements duly executed by all applicable
Persons for filing in all applicable jurisdictions as may be necessary to
terminate any effective UCC financing statements or fixture filings
disclosed in such search (other than any such financing statements or
fixture filings in respect of Liens permitted to remain outstanding
pursuant to the terms of this Agreement).
(iv) UCC FINANCING STATEMENTS AND FIXTURE FILINGS. Delivery to
Administrative Agent of UCC financing statements and, where appropriate,
fixture filings, duly executed by each applicable Loan Party with respect
to all personal and mixed property Collateral of such Loan Party, for
filing in all jurisdictions as may be necessary or, in the opinion of
Administrative Agent, desirable to perfect the security interests created
in such Collateral pursuant to the Collateral Documents;
(v) NOTICES TO DEPOSIT ACCOUNT BANKS. Delivery to
Administrative Agent of notices to be delivered to each of the financial
institutions with which Borrower or any of its Subsidiaries maintains a
Deposit Account sufficient to perfect the security interests created in
such Collateral pursuant to the Collateral Documents;
N. ENVIRONMENTAL INDEMNITY. An environmental indemnity
agreement, satisfactory in form and substance to Administrative Agent and its
counsel, with respect to the indemnification of Administrative Agent and Lenders
for any liabilities that may be imposed on or incurred by any of them as a
result of any Hazardous Materials Activity.
O. MATTERS RELATING TO EXISTING INDEBTEDNESS OF BORROWER AND
ITS SUBSIDIARIES.
(i) TERMINATION OF RELATED LIENS; EXISTING LETTERS OF CREDIT.
On the Closing Date, Borrower and its Subsidiaries shall have (a)
terminated any commitments to lend or make other extensions of credit, (b)
delivered to Administrative Agent all documents or instruments necessary
to release all Liens securing Indebtedness or other obligations of
Borrower and its Subsidiaries thereunder, and (c) made arrangements
satisfactory to Administrative Agent with respect to the cancellation of
any letters of credit outstanding thereunder or the issuance of Letters of
Credit to support the obligations of Borrower and its Subsidiaries with
respect thereto.
(ii) EXISTING INDEBTEDNESS TO REMAIN OUTSTANDING. Administrative
Agent shall have received an Officer's Certificate of Borrower stating
that, after giving effect to the transactions described in this subsection
4.1O, the Indebtedness of Loan Parties (other
than Indebtedness under the Loan Documents and the Subordinated Notes)
shall consist of (a) the aggregate principal amount set forth on Part I of
SCHEDULE 7.1 of outstanding Indebtedness described in Part I of SCHEDULE
7.1 annexed hereto and (b) Indebtedness in an aggregate amount not to
exceed the amount set forth on Part II of SCHEDULE 7.1 in respect of
Capital Leases described in Part II of SCHEDULE 7.1 annexed hereto. The
terms and conditions of all such Indebtedness shall be in form and in
substance satisfactory to Administrative Agent.
P. COMPLETION OF PROCEEDINGS. All corporate and other
proceedings, including confirmatory due diligence as provided in the
commitment letter from the Lead Arranger and the Administrative Agent to
Veritas taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously
found acceptable by Administrative Agent, acting on behalf of Lenders, and
its counsel shall be satisfactory in form and substance to Administrative
Agent and such counsel, and Administrative Agent and such counsel shall
have received all such counterpart originals or certified copies of such
documents as Administrative Agent may reasonably request.
Q. SOLVENCY ASSURANCES. On the Closing Date, Administrative
Agent and Lenders shall have received (i) an Officer's Certificate of
Borrower dated the Closing Date, substantially in the form of EXHIBIT
XIII(A) annexed hereto and with appropriate attachments, in each case
demonstrating that, after giving effect to the consummation of the
Transactions and the transactions contemplated by the Loan Documents,
Holdings, Borrower and each guaranteeing Subsidiary will be Solvent and
(ii) an Officers' Certificate executed by the chief financial officer of
Holdings, dated the Closing Date, substantially in the form of EXHIBIT
XIII(B) and with appropriate attachments, demonstrating that, after giving
effect to the consummation of the Transactions and the transactions
contemplated by this Agreement, Holdings, individually, and Holdings and
its Subsidiaries, taken as a whole, will be Solvent.
R. NO DISRUPTION OF FINANCIAL MARKETS. There shall have not
occurred any material adverse change in the financial markets or in the
financial condition of Holdings, Borrower, and their respective
Subsidiaries after December 31, 2000, as determined by Administrative
Agent in its sole discretion.
S. MAXIMUM CONSOLIDATED TOTAL LEVERAGE RATIOS. On the Closing
Date, Administrative Agent shall have received an Officers' Certificate
executed by the chief financial officer of Borrower, dated the Closing
Date, with appropriate attachments, demonstrating that, after giving
effect to the consummation of the Transaction and the other transactions
contemplated by this Agreement, (i) the Consolidated Senior Leverage Ratio
does not exceed 2.50:1.00 and (ii) the Consolidated Total Leverage Ratio
does not exceed 4.30:1.00.
T. SPECIAL COLLATERAL ACCOUNT DEPOSIT. Borrower shall have
deposited $42,000,000 into the Special Collateral Account established
under the terms of the Collateral Account Control Agreement.
U. BORROWING BASE CERTIFICATE. On or before the Closing Date,
Borrower shall have delivered to Administrative Agent a Borrowing Base
Certificate, which shall be satisfactory to Administrative Agent, prepared
as of May 31, 2001.
4.2 CONDITIONS TO ALL LOANS.
The obligations of Lenders to make Loans on each Funding Date are
subject to the following further conditions precedent:
A. Administrative Agent shall have received before that
Funding Date, in accordance with the provisions of subsection 2.1B, an
originally executed Notice of Borrowing, in each case signed by a duly
authorized Officer of Borrower.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in
the other Loan Documents shall be true, correct and complete in all
material respects on and as of that Funding 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; PROVIDED, that where a representation and warranty is already
qualified as to materiality, such materiality qualifier shall be
disregarded for purposes of this condition.
(ii) No event shall have occurred and be continuing or would
result from the consummation of the borrowing contemplated by such Notice
of Borrowing that would constitute an Event of Default or a Potential
Event of Default;
(iii) 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 that Funding
Date;
(iv) No order, judgment or decree of any arbitrator or
Government Authority shall purport to enjoin or restrain any Lender from
making the Loans to be made by it on that Funding Date;
(v) Borrower shall have delivered such other certificates or
documents that Administrative Agent shall reasonably request, in form and
substance satisfactory to Administrative Agent;
(vi) The making of the Loans requested on such Funding Date
shall not violate any law including Regulation T, Regulation U or
Regulation X of the Board of Governors of the Federal Reserve System; and
(vii) There shall not be pending or, to the knowledge of
Borrower, threatened, any action, suit, proceeding, governmental
investigation or arbitration against or affecting Borrower or any of its
Subsidiaries or any property of Borrower or any of its Subsidiaries
that has not been disclosed by Borrower in writing pursuant to subsection
5.6 or 6.1(ix) prior to the making of the last preceding Loans (or, in the
case of the initial Loans, prior to the execution of this Agreement), and
there shall have occurred no development not so disclosed in any such
action, suit, proceeding, governmental investigation or arbitration so
disclosed, that, in either event, in the opinion of Administrative Agent
or of Requisite Lenders, could reasonably be expected to have a Material
Adverse Effect; and no injunction or other restraining order shall have
been issued and no hearing to cause an injunction or other restraining
order to be issued shall be pending or noticed with respect to any action,
suit or proceeding seeking to enjoin or otherwise prevent the consummation
of, or to recover any damages or obtain relief as a result of, the
transactions contemplated by this Agreement or the making of Loans
hereunder.
4.3 CONDITIONS TO LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder (whether or not the
applicable Issuing Lender is obligated to issue such Letter of Credit) and the
renewal of any Letter of Credit hereunder is subject to the following conditions
precedent:
A. On or before the date of issuance of the initial Letter of
Credit pursuant to this Agreement, the initial Loans shall have been made.
B. On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the provisions of
subsection 3.1B(i), a Notice of Issuance (or a facsimile copy thereof) in each
case signed by a duly authorized Officer of Borrower, together with all other
information specified in subsection 3.1B(i) and such other documents or
information as the applicable Issuing Lender may reasonably require in
connection with the issuance of such Letter of Credit.
C. On the date of issuance of such Letter of Credit, all
conditions precedent described in subsection 4.2B shall be satisfied to the same
extent as if the issuance of such Letter of Credit were the making of a Loan and
the date of issuance of such Letter of Credit were a Funding Date.
SECTION 5. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to
make the Loans, to induce Issuing Lenders to issue Letters of Credit and to
induce other Lenders to purchase participations therein, Borrower represents and
warrants to each Lender, on the date of this Agreement, on each Funding Date and
on the date of issuance of each Letter of Credit and the renewal of any Letter
of Credit hereunder, that the following statements are true, correct and
complete:
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES.
A. ORGANIZATION AND POWERS. Each Loan Party is a corporation,
partnership, trust or limited liability company duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization as
specified in SCHEDULE 5.1 annexed hereto. Each Loan Party has all requisite
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 and the Related Agreements to which it is a party and to carry out the
transactions contemplated thereby.
B. QUALIFICATION AND GOOD STANDING. Each Loan Party (or, in
the case of Borrower immediately before the Closing Date, RAC) 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 result in a Material Adverse
Effect.
C. CONDUCT OF BUSINESS. Holdings, Borrower and its
Subsidiaries are engaged only in the businesses permitted to be engaged in
pursuant to subsections 7.13 and 8.13.
D. SUBSIDIARIES. All of the Subsidiaries of Borrower and their
jurisdictions of organization are identified in SCHEDULE 5.1 annexed hereto, as
said SCHEDULE 5.1 may be supplemented from time to time pursuant to the
provisions of subsection 6.1(xv). The Capital Stock of Borrower and each of the
Subsidiaries of Borrower identified in SCHEDULE 5.1 annexed hereto (as so
supplemented) are duly authorized, validly issued, fully paid and nonassessable
and none of such Capital Stock constitutes Margin Stock. Each of the
Subsidiaries of Borrower identified in SCHEDULE 5.1 annexed hereto (as so
supplemented) is a corporation, partnership, trust or limited liability company
duly organized, validly existing and in good standing under the laws of its
respective jurisdiction of organization set forth therein, has all requisite
power and authority to own and operate its properties and 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, 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 power and authority has not had
and could not reasonably be expected to result in a Material Adverse Effect.
SCHEDULE 5.1 annexed hereto (as so supplemented) correctly sets forth the
ownership interest of Holdings, Borrower and each of the Subsidiaries of
Borrower identified therein.
5.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and
performance of the Loan Documents and the Related Agreements have been duly
authorized by all necessary 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 Related Agreements to which they are
parties and the consummation of the transactions contemplated by the Loan
Documents and such Related Agreements do not and will not (i) violate any
provision of any law or any governmental rule or regulation applicable to
Holdings, Borrower or any of its Subsidiaries, the Organizational Documents of
Holdings, Borrower or any of its Subsidiaries, or any order, judgment or decree
of any court or other Government Authority binding on Holdings, Borrower or any
of its Subsidiaries, (ii) conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under any Contractual
Obligation of Holdings, Borrower or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of Holdings, Borrower or any of its Subsidiaries (other than any Liens
created under any of the Loan Documents in favor of Administrative Agent on
behalf of Lenders), (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of Holdings, Borrower 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 or
(v) conflict with, result in a breach of or constitute (with due notice or lapse
of time or both) a default under any other contractual obligation of Holdings,
Borrower or any of its Subsidiaries, which conflicts, breaches or defaults,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect or which would impose any liability upon Administrative
Agent or any Lenders.
C. GOVERNMENTAL CONSENTS. Except as disclosed on SCHEDULE 5.2C
annexed hereto, the execution, delivery and performance by Loan Parties of the
Loan Documents and the Related Agreements to which they are parties and the
consummation of the transactions contemplated by the Loan Documents and such
Related Agreements do not and will not require registration with, consent or
approval of, or notice to, or other action to, with or by, any Governmental
Authority.
D. BINDING OBLIGATION. Each of the Loan Documents and the
Related Agreements has been duly executed and delivered by each Loan Party that
is a party thereto and is the legally valid and binding obligation of such Loan
Party, enforceable against such Loan Party in accordance with its respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability.
E. VALID ISSUANCE OF BORROWER MEMBERSHIP INTERESTS. The
issuance of all of the Capital Stock of Holdings to Parent and Veritas Sub in
accordance with the terms of the Combination Agreement and the other Related
Agreements has been duly authorized and the Capital Stock has been issued and is
free and clear of any Liens in respect of the issuance thereof. The issuance of
Borrower Membership Interests to Holdings in accordance with the terms of the
Combination Agreement and the other Related Agreements has been duly authorized
and Borrower Membership Interests have been issued and are free and clear of any
Liens in respect of the issuance thereof.
5.3 FINANCIAL CONDITION.
Borrower has heretofore delivered to Lenders, at Lenders' request,
the financial statements and information required to be delivered pursuant to
subsection 4.1E. All such statements, other than pro forma financial statements,
were prepared in conformity with GAAP and fairly present the financial position
(on a consolidated and, where applicable, consolidating basis) of the entities
described in such financial statements as at the respective dates thereof and
the results of operations and cash flows (on a consolidated and, where
applicable, consolidating basis) of the entities described therein for each of
the periods then ended, subject, in the case of any such unaudited financial
statements, to changes resulting from audit and normal year-end adjustments. No
Loan Party has (and will not have following the funding of the initial Loans)
any Contingent Obligation, contingent liability or liability for taxes,
long-term lease or unusual forward or long-term commitment that, as of the
Closing Date, is not reflected in the foregoing financial statements or the
notes thereto and, as of any Funding Date subsequent to the Closing Date, is not
reflected in the most recent financial statements delivered to Lenders pursuant
to subsection 6.1 or the notes thereto and that, in any such case, is material
in relation to the business, operations, properties, assets, condition
(financial or otherwise) or prospects of Borrower or any of its Subsidiaries.
5.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR PAYMENTS.
Since December 31, 2000, no event or change has occurred that has
resulted in or evidences, either in any case or in the aggregate, a Material
Adverse Effect. Neither Borrower nor any of its Subsidiaries has directly or
indirectly declared, ordered, paid or made, or set apart any sum or property
for, any Restricted Junior Payment or agreed to do so except as permitted by
subsection 7.5.
5.5 TITLE TO PROPERTIES; LIENS; REAL PROPERTY; INTELLECTUAL PROPERTY.
A. TITLE TO PROPERTIES; LIENS. Borrower and its Subsidiaries
have (i) good, sufficient and legal 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
reflected in the financial statements referred to in subsection 5.3 or in the
most recent financial statements delivered pursuant to subsection 6.1, in each
case except for assets disposed of since the date of such financial statements
in the ordinary course of business or as otherwise permitted under subsection
7.7. Except as permitted by this Agreement, all such properties and assets are
free and clear of Liens.
B. REAL PROPERTY. As of the Closing Date, SCHEDULE 5.5B
annexed hereto contains a true, accurate and complete list of (i) all fee
interests in any Real Property Assets and (ii) all leases, subleases or
assignments of leases (together with all amendments, modifications, supplements,
renewals or extensions of any thereof) affecting each Real Property Asset,
regardless of whether a Loan Party is the landlord or tenant (whether directly
or as an assignee or successor in interest) under such lease, sublease or
assignment. Except as specified in SCHEDULE 5.5B annexed hereto, each agreement
listed in clause (ii) of the immediately preceding
sentence is in full force and effect and Borrower does not have knowledge of any
default that has occurred and is continuing thereunder, and each such agreement
constitutes the legally valid and binding obligation of each applicable Loan
Party, enforceable against such Loan Party in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability. If Borrower or any of its
Subsidiaries acquires any additional Real Property Assets after the Closing
Date, Borrower shall deliver an updated Schedule 5.5.
C. INTELLECTUAL PROPERTY. As of the Closing Date, Borrower and
its Subsidiaries own or have the right to use, all Intellectual Property used in
the conduct of their business. The Trademark License Agreement is in full force
and effect and Borrower has a license to use the name "Raytheon" in accordance
with the terms thereof. No claim has been asserted and is pending by any Person
challenging or questioning the use of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property, nor does Borrower
know of any valid basis for any such claim except for such claims that
individually or in the aggregate could not reasonably be expected to result in a
Material Adverse Effect. The use of such Intellectual Property by Borrower and
its Subsidiaries does not infringe on the rights of any Person, except for such
claims and infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. All federal and
state and all foreign registrations of and applications for Intellectual
Property that are owned or licensed by Borrower or any of its Subsidiaries on
the Closing Date are described on SCHEDULE 5.5C annexed hereto.
5.6 LITIGATION; ADVERSE FACTS.
Except as disclosed on Schedule 5.6, there are no Proceedings
(whether or not purportedly on behalf of Borrower or any of its Subsidiaries) at
law or in equity, or before or by any court or other Government Authority
(including any Environmental Claims) that are pending or, to the knowledge of
Borrower, threatened against or affecting Borrower or any of its Subsidiaries or
any property of Borrower or any of its Subsidiaries and that, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse
Effect. Neither Borrower nor any of its Subsidiaries (i) is in violation of any
applicable laws (including 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 other Government
Authority, that, individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect.
5.7 PAYMENT OF TAXES.
Except to the extent permitted by subsection 6.3 and except as set
forth on SCHEDULE 5.7, all tax returns and reports of Holdings, Borrower and its
Subsidiaries required to be filed by any of them have been timely filed, and all
taxes shown on such tax returns to be due and payable and all assessments, fees
and other governmental charges upon Holdings, Borrower and its Subsidiaries and
upon their respective properties, assets, income, businesses and
franchises that are due and payable have been paid when due and payable, except
for such taxes (i) which are not yet delinquent or (ii) that are being contested
in good faith and by proper proceeds, and against which adequate reserves or
other appropriate provisions, if any, as shall be required in conformity with
GAAP shall have been made or provided therefor. Borrower knows of no proposed
tax assessment against Holdings, Borrower or any of its Subsidiaries that is not
being actively contested by Holdings, Borrower or such Subsidiary in good faith
and by appropriate proceedings.
5.8 PERFORMANCE OF AGREEMENTS; MATERIALLY ADVERSE AGREEMENTS; MATERIAL
CONTRACTS; GOVERNMENT CONTRACTS.
A. Neither Borrower 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, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
B. Neither Borrower 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 or any provision of any applicable law, rule or regulation
which, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect.
C. SCHEDULE 5.8C contains a true, correct and complete list of
all the Material Contracts in effect on the Closing Date. All such Material
Contracts are in full force and effect and no defaults currently exist
thereunder, except for defaults that, individually or in the aggregate, could
not reasonably be deemed to have a Material Adverse Effect.
D. SCHEDULE 5.8D contains a true, correct and complete list of
all Government Contracts. Except as otherwise set forth on SCHEDULE 5.8D, each
such Governmental Contract is assignable to Administrative Agent and Lenders
pursuant to the Assignment of Claims Act. No notice of suspension, debarment,
cure notice, show cause notice or notice of termination for default with respect
to any Government Contract with Borrower or any of its Subsidiaries, and neither
Borrower nor any of its Subsidiaries is party to any pending, or to Borrower's
or any Subsidiary's knowledge, threatened, suspension, debarment, or termination
for default issued by the U.S. government or other adverse U.S. government
action or proceeding in connection with any Government Contract.
5.9 GOVERNMENTAL REGULATION.
Neither Borrower nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act or the Investment Company Act of 1940 or
under any other federal or state statute or regulation which may limit its
ability to incur Indebtedness or which may otherwise render all or any portion
of the Obligations unenforceable.
5.10 SECURITIES ACTIVITIES.
A. Neither Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock.
B. Following application of the proceeds of each Loan, not
more than 25% of the value of the assets (either of Borrower only or of Borrower
and its Subsidiaries on a consolidated basis) subject to the provisions of
subsection 7.2 or 7.7 or subject to any restriction contained in any agreement
or instrument, between Borrower and any Lender or any Affiliate of any Lender,
relating to Indebtedness and within the scope of subsection 8.2, will be Margin
Stock.
5.11 EMPLOYEE BENEFIT PLANS.
A. Borrower, each of its Subsidiaries and each of their
respective ERISA Affiliates are in compliance in all material respects with all
applicable provisions and requirements of ERISA and the regulations and
published interpretations thereunder with respect to each Employee Benefit Plan,
and have performed all their obligations under each Employee Benefit Plan. Each
Employee Benefit Plan that is intended to qualify under Section 401(a) of the
Internal Revenue Code is so qualified.
B. No ERISA Event has occurred or is reasonably expected to
occur.
C. Except to the extent required under Section 4980B of the
Internal Revenue Code or except as set forth in SCHEDULE 5.11 annexed hereto, no
Employee Benefit Plan provides health or welfare benefits (through the purchase
of insurance or otherwise) for any retired or former employee of Borrower or,
any of its Subsidiaries.
D. Neither Borrower, its Subsidiaries or any of their
respective ERISA Affiliates maintain or contribute to any Pension Plan or
Multiemployer Plan, as to which the Borrower or any of Subsidiaries could have
any liability.
5.12 CERTAIN FEES.
No broker's or finder's fee or commission will be payable by any
Loan Party with respect to this Agreement or any of the transactions
contemplated by the Loan Documents or the Related Agreements, and Borrower
hereby indemnifies Lenders against, and agrees that it will hold Lenders
harmless from, any claim, demand or liability for any such broker's or finder's
fees alleged to have been incurred in connection herewith or therewith and any
expenses (including reasonable fees, expenses and disbursements of counsel)
arising in connection with any such claim, demand or liability.
5.13 ENVIRONMENTAL PROTECTION.
(i) Except as disclosed on Schedule 5.13, (x) neither Borrower
nor any of its Subsidiaries or operations are subject to any outstanding
written order, consent decree or
settlement agreement with any Person relating to any Environmental Law,
any Environmental Claim, or any Hazardous Materials Activity and (y) none
of Borrower's or its Subsidiaries' respective Facilities are subject to
any outstanding written order, consent decree or settlement agreement with
any Person relating to any Environmental Law, any Environmental Claim, or
any Hazardous Materials Activity arising from Borrower's or any of its
Subsidiaries' activities or operations;
(ii) neither Borrower nor any of its Subsidiaries has received
any letter or request for information under Section 104 of the
Comprehensive Environmental Response, Compensation, and Liability Act (42
U.S.C. Section 9604) or any comparable state law;
(iii) there are and, to Borrower's knowledge, have been no
conditions, occurrences, or Hazardous Materials Activities that could
reasonably be expected to form the basis of an Environmental Claim against
Borrower or any of its Subsidiaries;
(iv) Commencing at least 9 years prior to the Closing Date,
Borrower has maintained an environmental health and safety management
system for its and each of its Subsidiaries' operations that demonstrates
a commitment to environmental compliance and includes procedures for (a)
preparing and updating written compliance manuals covering pertinent
regulatory areas, (b) tracking changes in applicable Environmental Laws
and modifying operations to comply with new requirements thereunder, (c)
training employees to comply with applicable environmental requirements
and updating such training as necessary, (d) performing regular internal
compliance audits of each Facility and ensuring correction of any
incidents of non-compliance detected by means of such audits, and (e)
reviewing the compliance status of off-site waste disposal facilities;
(v) Compliance with all current or reasonably foreseeable
future requirements pursuant to or under Environmental Laws would not,
individually or in the aggregate, be reasonably expected to result in a
Material Adverse Effect. Nothing in this subsection 5.13 to the contrary,
no event or condition has occurred or is occurring with respect to
Borrower or any of its Subsidiaries relating to any Environmental Law, any
Release of Hazardous Materials, or any Hazardous Materials Activity, which
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect;
(vi) To Borrower's and each of its Subsidiary's knowledge, all
Real Property Assets and all operations of RAC, Borrower and its
Subsidiaries are in compliance, and have in the last five years been
compliance, with Environmental Laws, except where such failure to comply
could not reasonably be expected to have a Material Adverse Effect; and
(vii) No judicial proceeding or action by any Governmental
Authority is pending, or to the knowledge of Borrower and each of its
Subsidiaries, threatened, under any Environmental Law to which RAC,
Borrower or any of its Subsidiaries is or will be named as a party.
5.14 EMPLOYEE MATTERS.
There are no collective bargaining agreements covering the
employees of Borrower and its Subsidiaries except as set forth on Schedule 5.14.
There is no strike or work stoppage in existence or threatened involving
Borrower or any of its Subsidiaries that could reasonably be expected to result
in a Material Adverse Effect, and there are no strikes or walkouts in progress,
pending or to Borrower's knowledge contemplated relating to any labor contracts
to which Borrower or any of its Subsidiaries is a party, relating to any labor
contracts being negotiated, or otherwise.
5.15 SOLVENCY.
Each Loan Party is and, upon the incurrence of any Obligations by
such Loan Party on any date on which this representation is made, will be,
Solvent.
5.16 MATTERS RELATING TO COLLATERAL.
A. CREATION, PERFECTION AND PRIORITY OF LIENS. The execution
and delivery of the Collateral Documents by Loan Parties, together with (i) the
actions taken on or prior to the date hereof pursuant to subsections 4.1M, 6.8
and 6.9 and (ii) the delivery to Administrative Agent of any Pledged Collateral
not delivered to Administrative Agent at the time of execution and delivery of
the applicable Collateral Document (all of which Pledged Collateral has been so
delivered) are effective to create in favor of Administrative Agent for the
benefit of Lenders, as security for the respective Secured Obligations (as
defined in the applicable Collateral Document in respect of any Collateral), a
valid and perfected First Priority Lien (except for Liens permitted by
subsection 7.2A) on all of the Collateral, and all filings and other actions
necessary or desirable to perfect and maintain the perfection and First Priority
status of such Liens (except for Liens permitted by subsection 7.2A) have been
duly made or taken and remain in full force and effect, other than the filing of
any UCC financing statements delivered to Administrative Agent for filing (but
not yet filed) and the periodic filing of UCC continuation statements in respect
of UCC financing statements filed by or on behalf of Administrative Agent.
B. GOVERNMENTAL AUTHORIZATIONS. No authorization, approval or
other action by, and no notice to or filing with, any Government Authority is
required for either (i) the pledge or grant by any Loan Party of the Liens
purported to be created in favor of Administrative Agent for the benefit of
Lenders pursuant to any of the Collateral Documents or (ii) the exercise by
Administrative Agent of any rights or remedies in respect of any Collateral
(whether specifically granted or created pursuant to any of the Collateral
Documents or created or provided for by applicable law), except for (a) filings
or recordings contemplated by subsection 5.16A, (b) as may be required, in
connection with the disposition of any Pledged Collateral, by laws generally
affecting the offering and sale of securities, and (c) with respect to clause
(ii) above, for filings required under the Assignment of Claims Act.
C. ABSENCE OF THIRD-PARTY FILINGS. Except such as may have
been filed in favor of Administrative Agent for the benefit of Lenders as
contemplated by subsection 5.16A and to evidence permitted lease obligations and
other Liens permitted pursuant to subsection 7.2,
(i) no effective UCC financing statement, fixture filing or other instrument
similar in effect covering all or any part of the Collateral is on file in any
filing or recording office and (ii) no effective filing covering all or any part
of the IP Collateral is on file in the PTO.
D. MARGIN REGULATIONS. The pledge of the Pledged Collateral
pursuant to the Collateral Documents does not violate Regulation T, U or X of
the Board of Governors of the Federal Reserve System.
E. INFORMATION REGARDING COLLATERAL. All information supplied
to Administrative Agent by or on behalf of any Loan Party with respect to any of
the Collateral (in each case taken as a whole with respect to any particular
Collateral) is accurate and complete in all material respects.
5.17 RELATED AGREEMENTS; CONSUMMATION OF TRANSACTIONS.
A. DELIVERY OF RELATED AGREEMENTS. Borrower has delivered to
Lenders complete and correct copies of each Related Agreement and of all
exhibits and schedules thereto. As of the Closing Date, the Related Agreements
have not been altered, amended or otherwise modified or supplemented or any
condition thereof waived without the prior written consent of the Administrative
Agent.
B. REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties given by Borrower and the other parties to the Combination
Agreement and the other Related Agreements are true and correct in all material
respects as of the date hereof (or as of any earlier date to which such
representation and warranty specifically relates) and will be true and correct
in all material respects as of the Closing Date (or as of such earlier date, as
the case may be), in each case subject to the qualifications set forth in the
schedules to the Combination Agreement and the other Related Agreements.
C. SURVIVAL. Notwithstanding anything in the Combination
Agreement or the other Related Agreements to the contrary, the representations
and warranties set forth in subsection 5.17B shall, solely for purposes of the
Loan Documents, survive the Closing Date for the benefit of Lenders.
D. CONSUMMATION OF TRANSACTIONS. The Transactions have been
consummated in accordance with the terms of the Combination Agreement and the
other Related Agreements.
5.18 SUBORDINATED INDEBTEDNESS.
The Loans and all other Obligations constitute senior indebtedness
that is entitled to the benefits of the subordination provisions, if any, of all
Indebtedness of Borrower and its Subsidiaries, including, without limitation the
subordination provisions contained in the Subordination Agreement. Except as set
forth on SCHEDULE 5.18, Borrower and its Subsidiaries have no Indebtedness. The
Subordinated Notes have been issued in accordance with the Subordinated Note
Agreement. The subordination provisions of the Subordinated Notes and the
Subordinated Note Agreement are enforceable against the holders thereof. On the
Closing Date,
each of the representations and warranties made in the Subordinated Note
Agreement by Borrower is true and correct in all material respects, except for
representations or warranties therein that relate to a particular date, and with
regard to such representations and warranties, the same were true and correct as
of such date.
5.19 ACCOUNTS RECEIVABLE.
Each Account reflected in the computations included in any
Borrowing Base Certificate meets the criteria of the definition of Eligible
Account Receivable or Eligible Unbilled Accounts Receivable, except as disclosed
in such Borrowing Base Certificate or as disclosed in a timely manner in a
subsequent Borrowing Base Certificate or otherwise in writing to Administrative
Agent. Borrower has no knowledge of any fact or circumstance not disclosed to
Administrative Agent in a Borrowing Base Certificate or otherwise in writing
which would impair the validity or collectibility of any Eligible Account
Receivable of $50,000 or more or of Eligible Accounts Receivable which
(regardless of the individual amount thereof) aggregate $250,000 or more.
5.20 INVENTORY.
All Inventory included in any Borrowing Base Certificate delivered
to Administrative Agent meets the criteria of the definition of Eligible
Inventory, except as disclosed in such Borrowing Base Certificate or in a
subsequent Borrowing Base Certificate, or as otherwise specifically disclosed in
writing to the Administrative Agent.
5.21 DISCLOSURE.
No representation or warranty of Holdings, Borrower or any of its
Subsidiaries in any Loan Document or in any other document, certificate or
written statement furnished to Lenders by or on behalf of Holdings, Borrower 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 Borrower, in the case of any document not
furnished by it) necessary in order to make the statements contained herein or
therein not misleading in light of the circumstances in which the same were
made. Any projections and pro forma financial information contained in such
materials are based upon good faith estimates and assumptions believed by
Borrower 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 (or which should
upon the reasonable exercise of diligence be known) to Borrower (other than
matters of a general economic nature) that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect and that
have not been disclosed herein or in such other documents, certificates and
statements furnished to Lenders for use in connection with the transactions
contemplated hereby.
5.22 MORTGAGE TAXES, ETC.
All mortgage, note, transfer, documentary, stamp, intangible and
other similar taxes and impositions which may be required to be paid in
connection with the Loans, the Mortgages and the other Loan Documents have been
(or concurrently with the closing of the Loans and recording of the Mortgages,
will be) paid in full by Borrower.
5.23 PROCEEDS OF LOAN.
The proceeds of the Loans will be used solely by Borrower for the
purposes set forth in Section 2.5.
SECTION 6. BORROWER'S AFFIRMATIVE COVENANTS
Borrower 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 and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior written
consent, Borrower shall perform, and shall cause each of its Subsidiaries to
perform, all covenants in this Section 6.
6.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Borrower 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. Borrower will deliver to Administrative Agent and Lenders:
(i) MONTHLY FINANCIALS: as soon as available and in any event
within 30 days after the end of each month, (a) the consolidated and
consolidating balance sheet of Borrower and its Subsidiaries as at the end
of such fiscal period and the related consolidated and consolidating
statements of income, stockholders' equity and cash flows of Borrower and
its Subsidiaries for such fiscal period and for the period from the
beginning of the then current Fiscal Year to the end of such fiscal
period, setting forth in each case in comparative form the corresponding
figures for the corresponding periods of the previous Fiscal Year and the
corresponding figures from the Financial Plan for the current Fiscal Year,
to the extent prepared for such fiscal period, all in reasonable detail
and certified by the chief financial officer of Borrower that they fairly
present, in all material respects, the financial condition of Borrower 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, (b) a
narrative report describing the operations of Borrower and its
Subsidiaries in the form prepared for presentation to senior management
for such fiscal period and for the period from the beginning of the then
current Fiscal Year to the end of such fiscal period and (c) a Borrowing
Base Certificate (provided, however, that a Borrowing Base Certificate for
the last month of a Fiscal Quarter shall be delivered within 45 days after
the end of such month);
(ii) QUARTERLY FINANCIALS: as soon as available and in any event
within 45 days after the end of each Fiscal Quarter of each Fiscal Year,
(a) the consolidated and consolidating balance sheets of Borrower and its
Subsidiaries as at the end of such Fiscal Quarter and the related
consolidated and consolidating statements of income, stockholders' equity
and cash flows of Borrower 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 Borrower that they fairly present, in all
material respects, the financial condition of Borrower 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, (b) a narrative
report describing the operations of Borrower and its Subsidiaries in the
form prepared for presentation to senior management for such Fiscal
Quarter and for the period from the beginning of the then current Fiscal
Year to the end of such Fiscal Quarter and (c) a Borrowing Base
Certificate;
(iii) YEAR-END FINANCIALS: as soon as available and in any event
within 90 days after the end of each Fiscal Year, (a) the consolidated and
consolidating balance sheets of Borrower and its Subsidiaries as at the
end of such Fiscal Year and the related consolidated and consolidating
statements of income, stockholders' equity and cash flows of Borrower 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 Borrower that they fairly
present, in all material respects, the financial condition of Borrower and
its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, (b) a narrative
report describing the operations of Borrower and its Subsidiaries in the
form prepared for presentation to senior management for such Fiscal Year,
(c) in the case of such consolidated financial statements, a report
thereon of a nationally recognized "big 5" accounting firm or other
independent certified public accountants of recognized national standing
selected by Borrower and satisfactory to Administrative Agent, which
report shall be unqualified, shall express no doubts about the ability of
Borrower 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 Borrower and its
Subsidiaries as at the dates indicated and the results of their operations
and their cash flows for the periods indicated in conformity with GAAP
applied on a basis consistent with prior years (except as otherwise
disclosed in such financial statements) and that the examination by such
accountants in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards, and
(d) and an updated SCHEDULE 5.8 to this Agreement setting forth all of the
data required to be set forth in SCHEDULE 5.8 annexed hereto with respect
to any Material Contracts entered into during such Fiscal Year;
(iv) OFFICER AND COMPLIANCE CERTIFICATES: together with each
delivery of financial statements of Borrower and its Subsidiaries pursuant
to subdivisions (ii) and (iii) above, (a) an Officer's Certificate of
Borrower 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 Borrower
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 Officer's
Certificate, of any condition or event that constitutes an Event of
Default or Potential Event of Default, or, if any such condition or event
existed or exists, specifying the nature and period of existence thereof
and what action Borrower has taken, is taking and proposes to take with
respect thereto; and (b) a Compliance Certificate demonstrating in
reasonable detail compliance during and at the end of the applicable
accounting periods with the restrictions contained in Section 7;
(v) RECONCILIATION STATEMENTS: if, as a result of any change in
accounting principles and policies from those used in the preparation of
the audited financial statements referred to in subsection 5.3, the
consolidated financial statements of Borrower and its Subsidiaries
delivered pursuant to subdivisions (ii), (iii) 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
(a) together with the first delivery of financial statements pursuant to
subdivision (ii), (iii) or (xii) of this subsection 6.1 following such
change, consolidated financial statements of Borrower and its Subsidiaries
for (y) the current Fiscal Year to the effective date of such change and
(z) the two full Fiscal Years immediately preceding the Fiscal Year in
which such change is made, in each case prepared on a pro forma basis as
if such change had been in effect during such periods, and (b) together
with each delivery of financial statements pursuant to subdivision (ii),
(iii) or (xii) of this subsection 6.1 following such change, if required
pursuant to subsection 1.2, a written statement of the chief accounting
officer or chief financial officer of Borrower setting forth the
differences (including any differences that would affect any calculations
relating to the financial covenants set forth in subsection 7.6) which
would have resulted if such financial statements had been prepared without
giving effect to such change;
(vi) ACCOUNTANTS' CERTIFICATION: together with each delivery of
consolidated financial statements of Borrower and its Subsidiaries
pursuant to subdivision (iii) above, a written statement by the
independent certified public accountants giving the report thereon (a)
stating that their audit examination has included a review of the terms of
this Agreement and the other Loan Documents as they relate to accounting
matters, (b) stating whether, in connection with their audit examination,
any condition or event that constitutes an Event of Default or Potential
Event of Default 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 Event of Default or
Potential Event of
Default that would not be disclosed in the course of their audit
examination, and (c) stating that based on their audit examination nothing
has come to their attention that causes them to believe either or both
that the information contained in the certificates delivered therewith
pursuant to subdivision (iv) above is not correct or that the matters set
forth in the Compliance Certificates delivered therewith pursuant to
clause (b) of subdivision (iv) above for the applicable Fiscal Year are
not stated in accordance with the terms of this Agreement;
(vii) ACCOUNTANTS' REPORTS: promptly upon receipt thereof (unless
restricted by applicable professional standards), copies of all reports
submitted to Borrower by independent certified public accountants in
connection with each annual, interim or special audit of the financial
statements of Borrower and its Subsidiaries made by such accountants,
including any comment letter submitted by such accountants to management
in connection with their annual audit;
(viii) OTHER PUBLIC DISCLOSURES: promptly upon their becoming
available, copies of (a) all financial statements, reports, notices and
statements sent or made available generally by Borrower to its security
holders or by any Subsidiary of Borrower to its security holders other
than Borrower or another Subsidiary of Borrower, and (b) all press
releases and other statements made available generally by Borrower or any
of its Subsidiaries to the public concerning material developments in the
business of Borrower or any of its Subsidiaries;
(ix) LITIGATION OR OTHER PROCEEDINGS: (a) promptly upon, but in
any event within five Business Days after, any Officer of Borrower
obtaining knowledge of (1) the institution of, or non-frivolous threat of,
any Proceeding against or affecting Borrower or any of its Subsidiaries or
any property of Borrower or any of its Subsidiaries (including any
investigation or inquiry by any Government Authority with respect to any
Government Contract not previously disclosed in writing by Borrower to
Lenders or (2) any material development in any Proceeding that, in any
case:
(x) if adversely determined, has a reasonable
possibility of giving rise to a Material Adverse Effect; or
(y) 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 Borrower to enable Lenders and their counsel to
evaluate such matters; and (b) within twenty days after the end of each
Fiscal Quarter, a schedule of all Proceedings involving an alleged
liability of, or claims against or affecting, Borrower or any of its
Subsidiaries equal to or greater than $250,000, and promptly after request
by Administrative Agent such other information as may be reasonably
requested by Administrative Agent to enable Administrative Agent and its
counsel to evaluate any of such Proceedings;
(x) ERISA EVENTS: promptly upon becoming aware of the
occurrence of or forthcoming occurrence of any ERISA Event, a written
notice specifying the nature thereof, what action Borrower, 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)
each Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by Borrower, any of its Subsidiaries or any of their
respective ERISA Affiliates with the Internal Revenue Service with respect
to each Pension Plan; (b) all notices received by Borrower, any of its
Subsidiaries or any of their respective ERISA Affiliates from a
Multiemployer Plan sponsor concerning an ERISA Event; and (c) copies of
such other documents or governmental reports or filings relating to any
Employee Benefit Plan as Administrative Agent shall reasonably request;
(xii) FINANCIAL PLANS: as soon as practicable and in any event no
later than 30 days prior to the beginning of each Fiscal Year, a
consolidated and consolidating plan and financial forecast for such Fiscal
Year (the "FINANCIAL PLAN" for such Fiscal Year), including (a) forecasted
consolidated and consolidating balance sheets and forecasted consolidated
and consolidating statements of income and cash flows of Borrower and its
Subsidiaries for such Fiscal Year, together with a PRO FORMA Compliance
Certificate for such Fiscal Year and an explanation of the assumptions on
which such forecasts are based, (b) forecasted consolidated and
consolidating statements of income and cash flows of Borrower and its
Subsidiaries for each month of such Fiscal Year, together with an
explanation of the assumptions on which such forecasts are based, (c) the
amount of forecasted unallocated overhead for each such Fiscal Year, and
(d) such other information and projections as any Lender may reasonably
request;
(xiii) INSURANCE: (a) 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 required hereunder to be maintained as of the date of such report
by Borrower and its Subsidiaries and all material insurance coverage
planned to be maintained by Borrower and its Subsidiaries in the
immediately succeeding Fiscal Year as required hereunder and (b) as soon
as practicable after any material change in insurance coverage maintained
by Borrower and its Subsidiaries notice thereof to Administrative Agent
specifying the changes and reasons therefor;
(xiv) GOVERNING BODY: with reasonable promptness, written notice
of any change in the Governing Body of Borrower;
(xv) NEW SUBSIDIARIES: promptly upon any Person becoming a
Subsidiary of Borrower, a written notice setting forth with respect to
such Person (a) the date on which such Person became a Subsidiary of
Borrower and (b) all of the data required to be set forth in SCHEDULE 5.1
annexed hereto with respect to all Subsidiaries of Borrower (it
being understood that such written notice shall be deemed to supplement
SCHEDULE 5.1 annexed hereto for all purposes of this Agreement);
(xvi) MARGIN DETERMINATION CERTIFICATE: commencing with the
Fiscal Quarter ended December 31, 2001, together with each delivery of
financial statements for each Fiscal Quarter (other than each fourth
Fiscal Quarter) pursuant to subdivision (ii) above, and within 45 days of
the last day of each fourth Fiscal Quarter, a Margin Determination
Certificate demonstrating in reasonable detail the calculation of the
Consolidated Total Leverage Ratio for the four consecutive Fiscal Quarters
ending on the day of the accounting period covered by such financial
statements;
(xvii) DEPOSITS ACCOUNTS: promptly upon the opening of any Deposit
Account by Borrower or any of its Subsidiaries, a written notice setting
forth all of the data required to be set forth in SCHEDULE 6.11 annexed
hereto with respect to such Deposit Account;
(xviii) MATERIAL CONTRACTS; GOVERNMENT CONTRACTS OR
INVESTIGATIONS: promptly, and in any event within ten Business Days after
any Material Contract of Borrower or any of its Subsidiaries is terminated
or amended in a manner that is materially adverse to Borrower or such
Subsidiary, as the case may be, or any new Material Contract is entered
into, or any investigation or inquiry by any Governmental Authority with
respect to any Government Contract or any Loan Party, a written statement
describing such event with copies of such material amendments or new
contracts, and an explanation of any actions being taken with respect
thereto;
(xix) EVENTS OF DEFAULT, ETC.: promptly upon, and within five
Business Days after, Borrower obtaining knowledge (a) of any condition or
event that constitutes an Event of Default or Potential Event of Default,
or becoming aware that any Lender has given any notice (other than to
Administrative Agent) or taken any other action with respect to a claimed
Event of Default or Potential Event of Default, (b) that any Person has
given any notice to Borrower or any of its Subsidiaries or taken any other
action with respect to a claimed default or event or condition of the type
referred to in subsection 8.2, (c) of any resignation or dismissal of
Borrower's independent accountant, (d) of any Change of Control or other
event requiring a prepayment of principal on the Subordinated Notes or any
other Subordinated Indebtedness, (e) of any individual or series of
related Asset Sales, issuances of Capital Stock or receipt of Net
Insurance/Condemnation Proceeds aggregating in excess of $500,000, or (f)
of the occurrence of any event or change that has caused or evidences,
either in any case or in the aggregate, a Material Adverse Effect, an
Officer's Certificate specifying the nature and period of existence of
such condition, event or change, or specifying the notice given or action
taken by any such Person and the nature of such claimed Event of Default,
Potential Event of Default, default, event or condition, and what action
Borrower has taken, is taking and proposes to take with respect thereto;
(xx) CORPORATE MATTERS: with reasonable promptness, written
notice of (1) any amendment of the articles or certificate of
incorporation or by-laws or other constituent documents of Borrower or any
of its Subsidiaries, (2) any change in the composition of
the board of directors of Borrower or any of its Subsidiaries, and (3) any
change in the executive Officers of Borrower or any of its Subsidiaries;
(xxi) REVISIONS OR UPDATES TO SCHEDULES: should any of the
information or disclosures provided on any of the Schedules originally
attached to any of the Loan Documents become outdated or incorrect in any
material respect, as part of the next quarterly Officers' Certificate
required pursuant to subsection 6.1(iv), such revisions or updates to such
Schedules as may be necessary or appropriate to update or correct such
Schedules, PROVIDED that no such revisions or updates to any Schedules
shall be deemed to have amended, modified or superseded such Schedules
immediately prior to the submission of such revised or updated Schedules,
or to have cured any breach of warranty or representation resulting from
the inaccuracy or incompleteness of any such Schedules, unless and until
the Requisite Lenders in their sole and absolute discretion, shall have
accepted in writing such revisions or updates to such Schedules; and
(xxii) OTHER INFORMATION: with reasonable promptness, such other
information and data with respect to Borrower or any of its Subsidiaries
as from time to time may be reasonably requested by any Lender.
6.2 EXISTENCE, ETC.
Except as permitted under subsection 7.7, Borrower will, and will
cause each of its Subsidiaries to, at all times preserve and keep in full force
and effect its existence and all rights and franchises material to its business;
PROVIDED, HOWEVER that neither Borrower nor any of its Subsidiaries shall be
required to preserve any such right or franchise if the Governing Body of
Borrower or such Subsidiary shall determine that the preservation thereof is no
longer desirable in the conduct of the business of Borrower or such Subsidiary,
as the case may be, and that the loss thereof is not disadvantageous in any
material respect to Borrower, such Subsidiary or Lenders.
6.3 PAYMENT OF TAXES AND CLAIMS; TAX.
A. Borrower 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 (i) such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made therefor and (ii) in the case of a charge or claim which has or may become
a Lien against any of the Collateral, such proceedings conclusively operate to
stay the sale of any portion of the Collateral to satisfy such charge or claim.
B. Borrower will not, nor will it permit any of its
Subsidiaries to, file or consent to the filing of any consolidated income tax
return with any Person (other than Holdings, Borrower or any of its
Subsidiaries).
6.4 MAINTENANCE OF PROPERTIES; INSURANCE; APPLICATION OF NET
INSURANCE/CONDEMNATION PROCEEDS.
A. MAINTENANCE OF PROPERTIES. Borrower 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 Borrower and its Subsidiaries
(including all Intellectual Property) and from time to time will make or cause
to be made all appropriate repairs, renewals and replacements thereof.
B. INSURANCE. Borrower 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 Borrower 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, to
the extent companies of similar size and in similar businesses self-insure),
with such deductibles, covering such risks and otherwise on such terms and
conditions as shall be customary for corporations similarly situated in the
industry. Without limiting the generality of the foregoing, Borrower will
maintain or cause to be maintained (i) flood insurance with respect to each
Flood Hazard Property that is located in a community that participates in the
National Flood Insurance Program, in each case in compliance with any applicable
regulations of the Board of Governors of the Federal Reserve System, and (ii)
replacement value casualty insurance on the Collateral under such policies of
insurance, with such insurance companies, in such amounts, with such
deductibles, covering such risks and having other terms and conditions as are at
all times satisfactory to Administrative Agent in its commercially reasonable
judgment. Each such policy of insurance shall (a) name Administrative Agent for
the benefit of Lenders as an additional insured thereunder as its interests may
appear and (b) in the case of each business interruption and casualty insurance
policy, contain a loss payable clause or endorsement, satisfactory in form and
substance to Administrative Agent, that names Administrative Agent for the
benefit of Lenders as the loss payee thereunder for any covered loss in excess
of $500,000 and provides for at least 30 days prior written notice to
Administrative Agent of any modification or cancellation of such policy.
C. APPLICATION OF NET INSURANCE/CONDEMNATION PROCEEDS.
(i) BUSINESS INTERRUPTION INSURANCE. Upon receipt by Borrower
or any of its Subsidiaries of any business interruption insurance proceeds
constituting Net Insurance/Condemnation Proceeds, (a) so long as no Event
of Default or Potential Event of Default shall have occurred and be
continuing, Borrower or such Subsidiary may retain and apply such Net
Insurance/Condemnation Proceeds for working capital purposes, and (b) if
an Event of Default or Potential Event of Default shall have occurred and
be continuing, Borrower shall apply an amount equal to such Net
Insurance/Condemnation Proceeds to prepay the Loans (and/or the Revolving
Loan Commitments shall be reduced) as provided in subsection 2.4B.
(ii) NET INSURANCE/CONDEMNATION PROCEEDS RECEIVED BY BORROWER.
Upon receipt by Borrower or any of its Subsidiaries of any Net
Insurance/Condemnation Proceeds other than from business interruption
insurance, (a) so long as no Event of Default or Potential Event of
Default shall have occurred and be continuing, if the Net
Insurance/Condemnation Proceeds are less than $500,000, Borrower shall, or
shall cause one or more of its Subsidiaries to, promptly and diligently
apply such Net Insurance/Condemnation Proceeds to pay or reimburse the
costs of repairing, restoring or replacing the assets in respect of which
such Net Insurance/Condemnation Proceeds were received or, to the extent
not so applied, to prepay the Loans (and/or the Revolving Loan Commitments
shall be reduced) as provided in subsection 2.4B, and (b) if an Event of
Default or Potential Event of Default shall have occurred and be
continuing or the Net Insurance/Condemnation Proceeds are greater than or
equal to $500,000, Borrower shall apply an amount equal to such Net
Insurance/Condemnation Proceeds to prepay the Loans (and/or the Revolving
Loan Commitments shall be reduced) as provided in subsection 2.4B.
(iii) NET INSURANCE/CONDEMNATION PROCEEDS RECEIVED BY
ADMINISTRATIVE AGENT. Upon receipt by Administrative Agent of any Net
Insurance/Condemnation Proceeds as loss payee, (a) if the aggregate amount
of Net Insurance/Condemnation Proceeds received (and reasonably expected
to be received) by Administrative Agent in respect of any covered loss
exceeds $500,000, or if and to the extent Borrower would have been
required to apply such Net Insurance/Condemnation Proceeds (if it had
received them directly) to prepay the Loans and/or reduce the Revolving
Loan Commitments, Administrative Agent shall, and Borrower hereby
authorizes Administrative Agent to, apply such Net Insurance/Condemnation
Proceeds to prepay the Loans (and/or the Revolving Loan Commitments shall
be reduced) as provided in subsection 2.4B, and (b) to the extent the
foregoing clause (a) does not apply, Administrative Agent shall deliver
such Net Insurance/Condemnation Proceeds to Borrower, and Borrower shall,
or shall cause one or more of its Subsidiaries to, promptly apply such Net
Insurance/Condemnation Proceeds to the costs of repairing, restoring, or
replacing the assets in respect of which such Net Insurance/Condemnation
Proceeds were received; PROVIDED, HOWEVER, that if at any time
Administrative Agent reasonably determines (A) that Borrower or such
Subsidiary is not proceeding diligently with such repair, restoration or
replacement or (B) that such repair, restoration or replacement cannot be
completed with the Net Insurance/Condemnation Proceeds then held by
Administrative Agent for such purpose, together with funds otherwise
available to Borrower for such purpose, or that such repair, restoration
or replacement cannot be completed within 180 days after the receipt by
Administrative Agent of such Net Insurance/Condemnation Proceeds,
Administrative Agent shall, and Borrower hereby authorizes Administrative
Agent to, apply such Net Insurance/Condemnation Proceeds to prepay the
Loans (and/or the Revolving Loan Commitments shall be reduced) as provided
in subsection 2.4B(iii)(b).
6.5 INSPECTION RIGHTS; AUDITS OF INVENTORY AND ACCOUNTS RECEIVABLE;
LENDER MEETING.
A. INSPECTION RIGHTS. Borrower shall, and shall cause each of
its Subsidiaries to, permit any authorized representatives designated by
Administrative Agent to visit and inspect any of the properties of Borrower 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 Borrower 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. Any Lender, at such Lender's sole cost and expense, may accompany
Administrative Agent on such visits and inspections.
B. AUDITS OF INVENTORY AND ACCOUNTS RECEIVABLE. Borrower
shall, and shall cause each of its Subsidiaries to, permit any authorized
representatives designated by Administrative Agent to conduct one audit of all
Inventory and accounts receivable of Loan Parties during each twelve-month
period after the Closing Date, all upon reasonable notice and at such reasonable
times during normal business hours as may reasonably be requested; PROVIDED that
upon the occurrence and during the continuation of an Event of Default or a
Potential Event of Default, authorized representatives designated by
Administrative Agent shall be permitted to conduct additional audits of all such
Inventory and accounts receivable.
C. LENDER MEETING. Borrower will, upon the request of
Administrative Agent or Requisite Lenders, participate in a meeting of
Administrative Agent and Lenders once during each Fiscal Year to be held at
Borrower's principal offices (or at such other location as may be agreed to by
Borrower and Administrative Agent) at such time as may be agreed to by Borrower
and Administrative Agent.
6.6 COMPLIANCE WITH LAWS, ETC.
Borrower shall comply, and shall cause each of its Subsidiaries
and all other Persons on or occupying any Facilities to comply, with the
requirements of all applicable laws, rules, regulations and orders of any
Government Authority (including all Environmental Laws), noncompliance with
which could reasonably be expected to result in, individually or in the
aggregate, a Material Adverse Effect.
6.7 ENVIRONMENTAL MATTERS.
A. ENVIRONMENTAL DISCLOSURE. Borrower will deliver to
Administrative Agent and Lenders:
(i) ENVIRONMENTAL AUDITS AND REPORTS. As soon as practicable
following receipt thereof, copies of all environmental audits,
investigations, analyses and reports of any kind or character, whether
prepared by personnel of Borrower or any of its Subsidiaries or by
independent consultants, governmental authorities or any other Persons,
with respect to significant environmental matters at any Facility which,
individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect or with respect to any Environmental Claims
which, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect;
(ii) NOTICE OF CERTAIN RELEASES, REMEDIAL ACTIONS, ETC. Promptly
upon the occurrence thereof, written notice describing in reasonable
detail (a) any Release required to be reported to any federal, state or
local governmental or regulatory agency under any applicable Environmental
Laws, (b) any remedial action taken by Borrower or any other Person in
response to (1) any Hazardous Materials Activities the existence of which
could reasonably be expected to result in one or more Environmental Claims
having, individually or in the aggregate, a Material Adverse Effect, or
(2) any Environmental Claims that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, and (c)
Borrower's discovery of any occurrence or condition on any real property
adjoining or in the vicinity of any Facility that could cause such
Facility or any part thereof to be subject to any material restrictions on
the ownership, occupancy, transferability or use thereof under any
Environmental Laws.
(iii) WRITTEN COMMUNICATIONS REGARDING ENVIRONMENTAL CLAIMS,
RELEASES, ETC. As soon as practicable following the sending or receipt
thereof by Borrower or any of its Subsidiaries, a copy of any and all
written communications with respect to (a) any Environmental Claims that,
individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect, (b) any Release required to be reported to
any federal, state or local governmental or regulatory agency, and (c) any
request for information from any governmental agency that suggests such
agency is investigating whether Borrower or any of its Subsidiaries may be
potentially responsible for any Hazardous Materials Activity.
(iv) NOTICE OF CERTAIN PROPOSED ACTIONS HAVING ENVIRONMENTAL
IMPACT. Prompt written notice describing in reasonable detail (a) any
proposed acquisition of stock, assets, or property by Borrower or any of
its Subsidiaries that could reasonably be expected to (1) expose Borrower
or any of its Subsidiaries to, or result in, Environmental Claims that
could reasonably be expected to result in, individually or in the
aggregate, a Material Adverse Effect or (2) affect the ability of Borrower
or any of its Subsidiaries to maintain in full force and effect all
material Governmental Authorizations required under any Environmental Laws
for their respective operations and (b) any proposed action to be taken by
Borrower or any of its Subsidiaries to modify current operations in a
manner that could reasonably be expected to subject Borrower or any of its
Subsidiaries to any material additional obligations or requirements under
any Environmental Laws.
B. BORROWER'S ACTIONS REGARDING HAZARDOUS MATERIALS ACTIVITIES,
ENVIRONMENTAL CLAIMS AND VIOLATIONS OF ENVIRONMENTAL LAWS.
(i) REMEDIAL ACTIONS RELATING TO HAZARDOUS MATERIALS
ACTIVITIES. Borrower shall, in compliance with all applicable
Environmental Laws, promptly undertake, and shall cause each of its
Subsidiaries promptly to undertake, any and all investigations, studies,
sampling, testing, abatement, cleanup, removal, remediation or other
response
actions necessary to remove, remediate, clean up or ▇▇▇▇▇ any Hazardous
Materials Activity on, under or about any Facility that is in violation of
any Environmental Laws or that presents a material risk of giving rise to
an Environmental Claim. In the event Borrower or any of its Subsidiaries
undertakes any such action with respect to any Hazardous Materials,
Borrower or such Subsidiary shall conduct and complete such action in
compliance with all applicable Environmental Laws and in accordance with
the policies, orders and directives of all federal, state and local
governmental authorities except when, and only to the extent that,
Borrower's or such Subsidiary's liability with respect to such Hazardous
Materials Activity is being diligently contested in good faith and by
appropriate proceedings by Borrower or such Subsidiary.
(ii) ACTIONS WITH RESPECT TO ENVIRONMENTAL CLAIMS AND VIOLATIONS
OF ENVIRONMENTAL LAWS. Borrower shall promptly take, and shall cause each
of its Subsidiaries promptly to take, any and all actions necessary to (i)
cure any violation of applicable Environmental Laws by Borrower or its
Subsidiaries and (ii) make an appropriate response to any Environmental
Claim against Borrower or any of its Subsidiaries and discharge any
obligations it may have to any Person thereunder where failure to do so
could reasonably be expected to result in, individually or in the
aggregate, a Material Adverse Effect.
C. ENVIRONMENTAL INVESTIGATIONS. Company agrees that
Administrative Agent may, from time to time and in its reasonable discretion,
(i) retain, at Borrower's expense, an independent professional consultant to
review any environmental audits, investigations, analyses and reports relating
to Hazardous Materials prepared by or for Borrower and (ii) in the event (a)
Administrative Agent reasonably believes that Borrower has breached any
representation, warranty or covenant contained in subsection 5.6, 5.13, 6.6, 6.7
or that there has been a material violation of Environmental Laws at any
Facility or by Borrower or any of its Subsidiaries at any other location or (b)
an Event of Default has occurred and is continuing, conduct its own
investigation of any Facility; PROVIDED that, in the case of any Facility no
longer owned, leased, operated or used by Borrower or any of its Subsidiaries,
Borrower shall only be obligated to use its best efforts to obtain permission
for Administrative Agent's professional consultant to conduct an investigation
of such Facility. For purposes of conducting such a review and/or investigation,
Borrower hereby grants to Administrative Agent and its Administrative Agents,
employees, consultants and contractors the right, upon not less than two
Business Days' prior written notice, to enter into or onto any Facilities
currently owned, leased, operated or used by Borrower or any of its Subsidiaries
and to perform such tests on such property (including taking samples of soil,
groundwater and suspected asbestos-containing materials) as are reasonably
necessary in connection therewith. Any such investigation of any Facility shall
be conducted, unless otherwise agreed to by Borrower and Administrative Agent,
during normal business hours and, to the extent reasonably practicable, shall be
conducted so as not to interfere with the ongoing operations at such Facility or
to cause any damage or loss to any property at such Facility. Borrower and
Administrative Agent hereby acknowledge and agree that any report of any
investigation conducted at the request of Administrative Agent pursuant to this
subsection 6.7C will be obtained and shall be used by Administrative Agent and
Lenders for the purposes of Lenders' internal credit decisions, to monitor and
police the Loans and to protect Lenders'
security interests, if any, created by the Loan Documents. Administrative Agent
agrees to deliver a copy of any such report to Borrower with the understanding
that Borrower acknowledges and agrees that (x) it will indemnify and hold
harmless Administrative Agent and each Lender from any costs, losses or
liabilities relating to Borrower's use of or reliance on such report, (y)
neither Administrative Agent nor any Lender makes any representation or warranty
with respect to such report, and (z) by delivering such report to Borrower,
neither Administrative Agent nor any Lender is requiring or recommending the
implementation of any suggestions or recommendations contained in such report.
6.8 EXECUTION OF SUBSIDIARY GUARANTY AND PERSONAL PROPERTY COLLATERAL
DOCUMENTS AFTER THE CLOSING DATE.
A. EXECUTION OF SUBSIDIARY GUARANTY AND PERSONAL PROPERTY
COLLATERAL DOCUMENTS. If any Person organized under the laws of the United
States or any State thereof or the District of Columbia becomes a domestic
Subsidiary of Borrower after the date hereof, Borrower will promptly notify
Administrative Agent of that fact and cause such domestic Subsidiary to execute
and deliver to Administrative Agent a counterpart of the Subsidiary Guaranty and
Security Agreement and to take all such further actions and execute all such
further documents and instruments (including actions, documents and instruments
comparable to those described in subsection 4.1M) as may be necessary or, in the
opinion of Administrative Agent, desirable to create in favor of Administrative
Agent, for the benefit of Lenders, a valid and perfected First Priority Lien
(except for Liens permitted by subsection 7.2A) on all of the personal and mixed
property assets of such domestic Subsidiary described in the applicable forms of
Collateral Documents.
B. FOREIGN SUBSIDIARIES. If any Person becomes a foreign
Subsidiary of Borrower or any Subsidiary after the date hereof, Borrower will
promptly notify Administrative Agent of that fact and, if such Subsidiary is
directly or indirectly owned by Borrower or a domestic Subsidiary, cause such
Subsidiary and the owner of such Subsidiary to execute and deliver to
Administrative Agent such documents and instruments and take such further
actions (including actions, documents and instruments comparable to those
described in subsection 4.1M) as may be necessary, or in the reasonable opinion
of Administrative Agent, desirable to create in favor of Administrative Agent,
for the benefit of Lenders, a valid and perfected First Priority Lien on 65% of
the voting Capital Stock and all of the non-voting Capital Stock of such foreign
Subsidiary.
C. SUBSIDIARY ORGANIZATIONAL DOCUMENTS, LEGAL OPINIONS, ETC.
Borrower shall deliver to Administrative Agent, together with such Loan
Documents, (i) certified copies of such Subsidiary's Organizational Documents,
together with, if such Subsidiary is a domestic Subsidiary, a good standing
certificate from the Secretary of State of the jurisdiction of its organization
and each other state in which such Person is qualified to do business 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 each of such jurisdictions, each to be dated a recent date
prior to their delivery to Administrative Agent, (ii) a certificate executed by
the secretary or similar Officer of such Subsidiary as to (a) the fact that the
attached resolutions of the Governing Body 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
(iii) a favorable opinion of counsel to such Subsidiary addressed to
Administrative Agent and Lenders, 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 and (d) such other matters (including matters
relating to the creation and perfection of Liens in any Collateral pursuant to
such Loan Documents) as Administrative Agent may reasonably request, all of the
foregoing to be satisfactory in form and substance to Administrative Agent and
its counsel.
6.9 MATTERS RELATING TO ADDITIONAL REAL PROPERTY COLLATERAL.
A. ADDITIONAL MORTGAGES, ETC. From and after the Closing Date,
if (i) Borrower or any Subsidiary Guarantor acquires any fee interest in real
property or any Material Leasehold Property or (ii) at the time any Person
becomes a Subsidiary Guarantor, such Person owns or holds any fee interest in
real property or any Material Leasehold Property, in either case excluding any
such Real Property Asset the encumbrancing of which requires the consent of any
applicable lessor or then-existing senior lienholder, where Borrower and its
Subsidiaries have attempted in good faith, but are unable, to obtain such
lessor's or senior lienholder's consent after use of their best efforts (any
such non-excluded Real Property Asset described in the foregoing clause (i) or
(ii) being an "ADDITIONAL MORTGAGED PROPERTY"), Borrower or such Subsidiary
Guarantor shall deliver to Administrative Agent, as soon as practicable after
such Person acquires such Additional Mortgaged Property or becomes a Subsidiary
Guarantor, as the case may be, a fully executed and notarized Mortgage (an
"ADDITIONAL MORTGAGE"), in proper form for recording in all appropriate places
in all applicable jurisdictions, encumbering the interest of such Loan Party in
such Additional Mortgaged Property; and the following.
(i) OPINIONS OF LOCAL COUNSEL. An opinion of counsel (which
counsel shall be reasonably satisfactory to Administrative Agent) in each
state in which an Additional Mortgaged Property is located with respect to
the enforceability of the form(s) of Additional Mortgages to be recorded
in such state and such other matters as Administrative Agent may
reasonably request, in each case in form and substance reasonably
satisfactory to Administrative Agent;
(ii) LANDLORD CONSENTS AND ESTOPPELS; RECORDED LEASEHOLD
INTERESTS. In the case of each Additional Mortgaged Property consisting of
a Leasehold Property, (a) a Landlord Consent and Estoppel with respect
thereto and (b) evidence that such Leasehold Property is a Recorded
Leasehold Interest;
(iii) TITLE INSURANCE. (a) form 1970 ALTA extended coverage
mortgagee title insurance policies or unconditional commitments therefor
(the "ADDITIONAL MORTGAGE POLICIES") issued by the Title Company with
respect to the Additional Mortgaged Properties, in amounts not less than
the respective amounts designated therein with respect to any particular
Additional Mortgaged Properties, insuring fee simple title to, or
a valid leasehold interest in, each such Additional Mortgaged Property
vested in such Loan Party and assuring Administrative Agent that the
applicable Additional Mortgages create valid and enforceable First
Priority mortgage Liens on the respective Additional Mortgaged Properties
encumbered thereby, which Additional Mortgage Policies (1) shall include
the following endorsements to the extent available in the states where the
Additional Mortgaged Properties are located: comprehensive, mechanics'
lien, variable rate, street address, separate tax lot, survey, contiguity,
zoning (ALTA 3.1), street access, usury, subdivision map act, revolving
credit, tie-in, creditors' rights, doing business, first loss and last
dollar and any other matters reasonably requested by Administrative Agent
and (2) shall provide for affirmative insurance and such reinsurance as
Administrative Agent may reasonably request, all of the foregoing in form
and substance reasonably satisfactory to Administrative Agent; and (b)
evidence satisfactory to Administrative Agent that such Loan Party has (i)
delivered to the Title Company all certificates and affidavits required by
the Title Company in connection with the issuance of the Additional
Mortgage Policies and (ii) paid to the Title Company or to the appropriate
governmental authorities all expenses and premiums of the Title Company in
connection with the issuance of the Additional Mortgage Policies and all
recording and stamp taxes (including mortgage recording and intangible
taxes) payable in connection with recording the Additional Mortgages in
the appropriate real estate records;
(iv) TITLE REPORTS. With respect to each Additional Mortgaged
Property, a title report issued by the Title Company with respect thereto,
dated not more than 30 days prior to the Closing Date and satisfactory in
form and substance to Administrative Agent;
(v) COPIES OF DOCUMENTS RELATING TO TITLE EXCEPTIONS. Copies of
all recorded documents listed as exceptions to title or otherwise referred
to in the Additional Mortgage Policies or in the title reports delivered
pursuant to subsection 6.9A(iv);
(vi) SURVEYS. A current as-built survey for each of the
Additional Mortgaged Properties prepared by a surveyor licensed or
registered in the state where such Additional Mortgaged Property is
located, which surveys must contain a certification from the surveyor in
the form of EXHIBIT XIX attached hereto, which surveys must be sufficient
to delete any standard printed survey exception contained in the
applicable Title Policy and otherwise be in form and substance
satisfactory to Administrative Agent; and
(vii) MATTERS RELATING TO FLOOD HAZARD PROPERTIES. (a) Evidence,
which may be in the form of a letter from an insurance broker or a
municipal engineer, as to whether (1) any Additional Mortgaged Property is
a Flood Hazard Property and (2) the community in which any such Flood
Hazard Property is located is participating in the National Flood
Insurance Program, (b) if there are any such Flood Hazard Properties, such
Loan Party's written acknowledgement of receipt of written notification
from Administrative Agent (1) as to the existence of each such Flood
Hazard Property and (2) as to whether the community in which each such
Flood Hazard Property is located is participating in the National Flood
Insurance Program, and (c) if any such Flood Hazard Property is located in
a community that participates in the National Flood Insurance
Program, evidence that Borrower has obtained flood insurance in respect of
such Flood Hazard Property to the extent required under the applicable
regulations of the Board of Governors of the Federal Reserve System.
B. REAL ESTATE APPRAISALS. Borrower shall, and shall cause
each of its Subsidiaries to, permit an independent real estate appraiser
satisfactory to Administrative Agent, upon reasonable notice, to visit and
inspect any Additional Mortgaged Property for the purpose of preparing an
appraisal of such Additional Mortgaged Property satisfying the requirements of
any applicable laws and regulations (in each case to the extent required under
such laws and regulations as determined by Administrative Agent in its
discretion).
C. CONFORMING LEASEHOLD INTERESTS. If Borrower or any of its
Subsidiaries acquires any Material Leasehold Property, Borrower shall use its
commercially reasonable efforts to, or shall use its commercially reasonable
efforts to cause such Subsidiary to, cause such Material Leasehold Property to
be a Conforming Leasehold Interest.
D. POST-CLOSING DATE COLLATERAL ACCESS AGREEMENTS. On or
before the date that is 60 days after the Closing Date, Borrower shall use its
best efforts to obtain a Collateral Access Agreement from each of the landlords
at the Real Property Assets described on Schedule 6.9D attached hereto,
provided, however, Borrower shall not be required to make any additional
payments to such landlords other than reasonable and customary processing fees
and reimbursement of attorneys' fees, costs and expenses (the "POST-CLOSING DATE
COLLATERAL ACCESS PROPERTIES").
6.10 INTEREST RATE PROTECTION.
At all times after the date that is 90 days after the Closing
Date, Borrower shall maintain in effect one or more Interest Rate Agreements
with respect to the Term Loans, each such Interest Rate Agreement to be for a
term of at least 3 years and in form and substance reasonably satisfactory to
Administrative Agent, which Interest Rate Agreements shall effectively limit
that component of the interest costs to Borrower in respect of a LIBOR Loan that
is based upon the rate obtained pursuant to clause (i) of the definition of
Adjusted LIBOR with respect to an aggregate notional principal amount of not
less than 50% of the aggregate principal amount of the Term Loans outstanding
from time to time (based on the assumption that such notional principal amount
was a LIBOR Loan with an Interest Period of three months) to a rate equal to not
more than 12.0% per annum.
6.11 DEPOSIT ACCOUNTS AND CASH MANAGEMENT SYSTEMS.
Borrower shall, and shall cause each of its Subsidiaries to, use
and maintain its Deposit Accounts and cash management systems in a manner
reasonably satisfactory to Administrative Agent. Information regarding these
Deposit Accounts, including (a) the name and address of the financial
institutions maintaining the Deposit Accounts, and (b) the Deposit Account
numbers, shall be set forth on SCHEDULE 6.11 annexed hereto. Borrower shall not
permit any of such Deposit Accounts at any time to have a principal balance in
excess of $250,000 unless Borrower or such Subsidiary, as the case may be, has
(i) delivered to
Administrative Agent an agreement, satisfactory in form and substance to
Administrative Agent and executed by the financial institution at which such
Deposit Account is maintained, pursuant to which such financial institution
confirms and acknowledges Administrative Agent's security interest in, and sole
dominion and control over, such Deposit Account and waives its rights to set-off
with respect to amounts in such Deposit Account and (ii) taken all other steps
necessary or, in the opinion of Administrative Agent, desirable to ensure that
Administrative Agent will have sole dominion and control over such Deposit
Account at all times while such agreement is in effect; PROVIDED that if
Borrower or such Subsidiary is unable to obtain such agreement from such
financial institution Borrower shall, or shall cause such Subsidiary to, within
30 days after receiving a written request by Administrative Agent to do so,
transfer all amounts in the applicable Deposit Account to a Deposit Account
maintained at a financial institution from which Borrower or such Subsidiary has
obtained such an agreement. Borrower shall not permit the aggregate amount on
deposit in all Deposit Accounts of Borrower and of its Subsidiaries (other than
Deposit Accounts maintained with Administrative Agent or Deposit Accounts for
which a deposit account control agreement described above has been executed and
delivered) at any time to exceed $500,000.
6.12 ASSIGNMENT OF CLAIMS ACT.
Borrower shall, and shall cause each applicable Subsidiary to, execute any
documents or instruments and take such steps or actions reasonably required by
Administrative Agent so that all monies due or to become due under any
Government Contract will be assigned to Administrative Agent, for the benefit of
itself and Lenders, and notice given thereof in accordance with the requirements
of the Assignment of Claims Act of 1940, as amended, or any other laws, rules or
regulations relating to the assignment of any such contract and monies due or to
become due. From and after the Closing Date, within five Business Days after
Borrower enters into any Government Contract not listed on Schedule 5.8,
Borrower shall deliver written to Administrative Agent written notice of such
entry, together with a copy of the Government Contract (to the extent that
Borrower is permitted under the terms thereof and applicable law to deliver a
copy thereof), and an Instrument of Assignment, duly executed by Borrower. If
and to the extent that any Government Contract is required by applicable laws to
be novated, Borrower shall promptly submit all documents and information
required by the applicable Government Authority in connection with such novation
and thereafter use its commercially reasonable efforts to promptly cause any
such Government Contract to be novated in accordance with applicable laws.
6.13 QUALIFICATION OF BORROWER.
On or before the date that is 180 days after the Closing Date, Borrower
shall be qualified to do business and be 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 could not reasonably be expected to have a Material Adverse
Effect.
6.14 CONSENTS TO COLLATERAL ASSIGNMENTS.
On or before the date that is 90 days after the Closing Date, Borrower
shall use its commercially reasonable efforts to obtain consents to the
collateral assignment of the contracts identified on part II of Schedule 5.8C,
in form and substance reasonably satisfactory to Administrative Agent.
6.15 SOLVENCY.
Borrower shall at all times be Solvent and Borrower shall cause Borrower
and its Subsidiaries, taken as a whole, to be at all times Solvent.
SECTION 7. BORROWER'S NEGATIVE COVENANTS
Borrower 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 and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior written
consent, Borrower shall perform, and shall cause each of its Subsidiaries to
perform, all covenants in this Section 7.
7.1 INDEBTEDNESS.
Borrower shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or guaranty, or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) Borrower may become and remain liable with respect to the
Obligations;
(ii) Borrower and its Subsidiaries may become and remain liable
with respect to Contingent Obligations permitted by subsection 7.4 and,
upon any matured obligations actually arising pursuant thereto, the
Indebtedness corresponding to the Contingent Obligations so extinguished;
(iii) Borrower and its Subsidiaries may become and remain liable
with respect to Indebtedness (including in respect of Capital Leases)
incurred to provide all or a portion of the purchase price or cost of
construction of an asset in an aggregate amount not to exceed $7,500,000
at any one time so long as (i) the principal amount of such Indebtedness
when incurred shall not exceed the purchase price or the cost of
construction of such asset, and (ii) no such Indebtedness shall be
refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing;
(iv) Borrower may become and remain liable with respect to
unsecured Indebtedness to any of its wholly-owned domestic Subsidiaries,
and any wholly-owned domestic Subsidiary of Borrower may become and remain
liable with respect to unsecured Indebtedness to Borrower or any other
wholly-owned domestic Subsidiary of Borrower; PROVIDED that (a) to the
extent the principal amount of such Indebtedness in
the aggregate is equal to or greater than $250,000, all such intercompany
Indebtedness shall be evidenced by promissory notes, (b) all such
intercompany Indebtedness owed by Borrower to any of its Subsidiaries
shall be subordinated in right of payment to the payment in full of the
Obligations pursuant to the terms of the applicable promissory notes or an
intercompany subordination agreement, (c) any payment by any Subsidiary of
Borrower under any guaranty of the Obligations shall result in a PRO TANTO
reduction of the amount of any intercompany Indebtedness owed by such
Subsidiary to Borrower or to any of its Subsidiaries for whose benefit
such payment is made;
(v) Borrower may remain liable with respect to the Subordinated
Notes;
(vi) Borrower and its Subsidiaries may remain liable with
respect to Indebtedness outstanding as of the Closing Date as referenced
in the financial statements delivered pursuant to subsection 4.1E (and set
out more specifically in SCHEDULE 7.1 annexed hereto) and renewals,
refinancings or extensions thereof in a principal amount not in excess of
that outstanding as of the date of such renewal, refinancing or
extensions;
(vii) Borrower and its Subsidiaries may become and remain liable
with respect to other Indebtedness in an aggregate principal amount not to
exceed $500,000 at any time outstanding; and
(viii) Borrower and its Subsidiaries may become and remain liable
with respect to Indebtedness incurred in the ordinary course of business
under documentary letters of credit for the purpose of goods or other
merchandise (but not under standby, direct pay or other letters of credit)
generally in an aggregate face amount not to exceed $500,000.
7.2 LIENS AND RELATED MATTERS.
A. PROHIBITION ON LIENS. Borrower shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, create, incur, assume
or permit to exist any Lien on or with respect to any property or asset of any
kind (including any document or instrument in respect of goods or accounts
receivable) of Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom or proceeds thereof, or
file or permit the filing of, or permit to remain in effect, any financing
statement or other similar notice of any Lien with respect to any such property,
asset, income or profits or proceeds under the UCC or under any similar
recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents;
(iii) Liens existing on the Closing Date and set forth on
SCHEDULE 7.2A; provided that (a) no such Lien shall at any time be
extended to cover property or assets other than the property or assets
subject thereto on the Closing Date and (b) the principal amount of the
Indebtedness secured by such Liens shall not be extended, renewed,
refunded or refinanced; and
(iv) Other Liens on assets acquired with the proceeds of
Indebtedness permitted under subsection 7.1(iii) securing such
Indebtedness; provided such Liens attach concurrently with or within ten
days after the acquisition thereof and only to the asset acquired with the
proceeds of such Indebtedness.
B. EQUITABLE LIEN IN FAVOR OF LENDERS. If Borrower or any of
its Subsidiaries shall create or assume any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, other than Liens excepted by
the provisions of subsection 7.2A, Borrower or its Subsidiary shall make or
cause to be made effective provision whereby the Obligations will be secured by
such Lien equally and ratably with any and all other Indebtedness secured
thereby as long as any such Indebtedness shall be so secured which provision
shall not cure any default that may have occurred and which provision shall be
made without prejudice to any rights of Administrative Agent or Lenders with
respect to such default; PROVIDED that, notwithstanding the foregoing, this
covenant shall not be construed as a consent by Requisite Lenders to the
creation or assumption of any such Lien not permitted by the provisions of
subsection 7.2A.
C. NO FURTHER NEGATIVE PLEDGES. Neither Borrower nor any of
its Subsidiaries shall enter into any agreement prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether now owned
or hereafter acquired, except (i) with respect to specific property encumbered
to secure payment of particular Indebtedness or to be sold pursuant to an
executed agreement with respect to an Asset Sale permitted by the terms hereof
and (ii) the prohibition contained in Section 6(C) of the Subordinated Note
Agreement.
D. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO BORROWER OR
OTHER SUBSIDIARIES. Borrower will not, and will not permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any such Subsidiary to (i) pay dividends or make any other distributions on
any of such Subsidiary's Capital Stock owned by Borrower or any other Subsidiary
of Borrower, (ii) repay or prepay any Indebtedness owed by such Subsidiary to
Borrower or any other Subsidiary of Borrower (except as set forth in Sections 6B
and 6M of the Subordinated Note Agreement as in effect on the date hereof),
(iii) make loans or advances to Borrower or any other Subsidiary of Borrower
(except as set forth in Sections 6B and 6N of the Subordinated Note Agreement as
in effect on the date hereof), or (iv) transfer any of its property or assets to
Borrower or any other Subsidiary of Borrower, except as provided in this
Agreement (except as set forth in Section 6D of the Subordinated Note Agreement
as in effect on the date hereof).
7.3 INVESTMENTS; JOINT VENTURES.
Borrower shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, make or own any Investment in any Person, including
any Joint Venture, or acquire, by purchase or otherwise, all or substantially
all the business, property or fixed assets of, or Capital Stock or other
ownership interest of any Person, or any division or line of business of any
Person except:
(i) Borrower and its Subsidiaries may make and own Investments
in Cash Equivalents;
(ii) Borrower and its Subsidiaries may continue to own the
Investments owned by them as of the Closing Date in any Subsidiaries of
Borrower and Borrower and its wholly-owned Subsidiaries may make and own
additional equity Investments in their respective wholly-owned
Subsidiaries;
(iii) Borrower and its Subsidiaries may make intercompany loans
to the extent permitted under subsection 7.1(iv);
(iv) Borrower and its Subsidiaries may make Consolidated Capital
Expenditures permitted by subsection 7.8;
(v) Borrower and its Subsidiaries may make Investments in
Accounts owing to Borrower or any of its Subsidiaries or any advances to
suppliers, in each case if created, acquired or made in the ordinary
course of business and payable or dischargeable in accordance with
customary trade terms;
(vi) Borrower and its Subsidiaries may make Investments
consisting of loans and advances to Officers, directors, employees of
Borrower and its Affiliates in an aggregate amount not to exceed $100,000
at any time outstanding;
(vii) Borrower and its Subsidiaries may make Investments
(including debt obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising
in the ordinary course of business;
(viii) Borrower and its Subsidiaries may make Investments
permitted under subsection 7.7; and
(ix) Borrower and its Subsidiaries may make and own other
Investments in an aggregate amount not to exceed at any time $100,000.
7.4 CONTINGENT OBLIGATIONS.
Borrower shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create or become or remain liable with respect to
any Contingent Obligation, except:
(i) Subsidiaries of Borrower may become and remain liable with
respect to Contingent Obligations in respect of the Subsidiary Guaranty;
(ii) Borrower may become and remain liable with respect to
Contingent Obligations under Hedge Agreements required under subsection
6.10 and under other Hedge Agreements with respect to Indebtedness entered
into in the ordinary course of business in order to manage existing or
anticipated interest rate, exchange rate or
commodity price risks and not for speculative purposes in an aggregate
notional amount not to exceed at any time $1,000,000;
(iii) Borrower and its Subsidiaries may become and remain liable
with respect to Contingent Obligations in respect of customary
indemnification and purchase price adjustment obligations incurred in
connection with Asset Sales or other sales of assets;
(iv) Borrower and its Subsidiaries may become and remain liable
with respect to Contingent Obligations in respect of any Indebtedness of
Borrower or any of its Subsidiaries permitted by subsection 7.1;
(v) Borrower and its Subsidiaries, as applicable, may remain
liable with respect to Contingent Obligations described in SCHEDULE 7.4
annexed hereto;
(vi) Subsidiary Guarantors may become and remain liable with
respect to Contingent Obligations arising under their subordinated
guaranties of the Subordinated Indebtedness; and
(vii) Borrower and its Subsidiaries may become and remain liable
with respect to other Contingent Obligations; PROVIDED that the maximum
aggregate liability, contingent or otherwise, of Borrower and its
Subsidiaries in respect of all such Contingent Obligations shall at no
time exceed $500,000.
7.5 RESTRICTED JUNIOR PAYMENTS.
Borrower shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, declare, order, pay, make or set apart any sum for
any Restricted Junior Payment; PROVIDED that Borrower may (i) make regularly
scheduled payments of scheduled cash interest in an aggregate amount not to
exceed in any Fiscal Year the amount set forth on SCHEDULE 7.5, PART A attached
hereto in respect of any Subordinated Notes in accordance with the terms of, and
only to the extent required by, and subject to the subordination provisions
contained in, the indenture or other agreement pursuant to which such
Subordinated Indebtedness was issued, as such indenture or other agreement may
be amended from time to time to the extent permitted under subsection 7.14B,
(ii) PIK Interest in an aggregate amount not to exceed in any Fiscal Year the
amount set forth on SCHEDULE 7.5, PART B in respect of any Subordinated Notes in
accordance with the terms of, and only to the extent required by, and subject to
the subordination provisions contained in, the indenture or other agreement
pursuant to which such Subordinated Notes was issued, as such indenture or other
agreement may be amended from time to time to the extent permitted under
subsection 7.14B, (iii) so long as no Event of Default or Potential Event of
Default shall have occurred and be continuing or would arise as a result of such
Restricted Junior Payment, Borrower may make Restricted Junior Payments to
Holdings to the extent necessary to permit Holdings to make tax advance payments
as provided in Section 5.3 in the Amended and Restated Limited Liability Company
Agreement of Holdings, as in effect on the date hereof, or (iv) purchases of any
employee stock options from employees who have terminated their employment with
Borrower or a Subsidiary or of Capital Stock in Holdings at fair market value in
the ordinary course of business in an aggregate amount not to exceed $750,000 in
any Fiscal
Year. For the avoidance of doubt, any increase in the "Preferred Redemption
Value", as such term is defined in the Amended and Restated Limited Liability
Company Operating Agreement of Holdings, shall not be considered a Restricted
Junior Payment.
7.6 FINANCIAL COVENANTS.
A. MINIMUM INTEREST COVERAGE RATIO. Borrower shall not permit
the ratio of (i) Consolidated EBITDA to (ii) Consolidated Interest Expense for
any four consecutive Fiscal Quarter period ending during any of the periods set
forth below to be less than the correlative ratio indicated:
MINIMUM INTEREST
PERIOD COVERAGE RATIO
------ --------------
3rd Fiscal Quarter, Fiscal Year 2001 2.00:1.00
4th Fiscal Quarter, Fiscal Year 2001 2.00:1.00
1st Fiscal Quarter, Fiscal Year 2002 2.00:1.00
2nd Fiscal Quarter, Fiscal Year 2002 2.00:1.00
3rd Fiscal Quarter, Fiscal Year 2002 2.00:1.00
4th Fiscal Quarter, Fiscal Year 2002 2.00:1.00
1st Fiscal Quarter, Fiscal Year 2003 2.00:1.00
2nd Fiscal Quarter, Fiscal Year 2003 2.00:1.00
3rd Fiscal Quarter, Fiscal Year 2003 2.15:1.00
4th Fiscal Quarter, Fiscal Year 2003 2.25:1.00
1st Fiscal Quarter, Fiscal Year 2004 2.25:1.00
2nd Fiscal Quarter, Fiscal Year 2004 2.25:1.00
3rd Fiscal Quarter, Fiscal Year 2004 2.50:1.00
4th Fiscal Quarter, Fiscal Year 2004 2.50:1.00
1st Fiscal Quarter, Fiscal Year 2005 2.50:1.00
2nd Fiscal Quarter, Fiscal Year 2005 2.50:1.00
3rd Fiscal Quarter, Fiscal Year 2005 2.50:1.00
4th Fiscal Quarter, Fiscal Year 2005 2.50:1.00
1st Fiscal Quarter, Fiscal Year 2006 2.50:1.00
2nd Fiscal Quarter, Fiscal Year 2006 2.50:1.00
3rd Fiscal Quarter, Fiscal Year 2006 2.50:1.00
4th Fiscal Quarter, Fiscal Year 2006 2.75:1:00
and each Fiscal Quarter thereafter
B. MINIMUM FIXED CHARGE COVERAGE RATIO. Borrower shall not
permit the ratio of (i) Consolidated EBITDA minus Maintenance Capital
Expenditures to (ii) Consolidated Fixed Charges for any four consecutive Fiscal
Quarter period ending during any of the periods set forth below to be less than
the correlative ratio indicated:
MINIMUM FIXED
PERIOD CHARGE COVERAGE RATIO
------ ---------------------
3rd Fiscal Quarter, Fiscal Year 2001 1.15:1.00
4th Fiscal Quarter, Fiscal Year 2001 1.15:1.00
1st Fiscal Quarter, Fiscal Year 2002 1.15:1.00
2nd Fiscal Quarter, Fiscal Year 2002 1.15:1.00
3rd Fiscal Quarter, Fiscal Year 2002 1.15:1.00
4th Fiscal Quarter, Fiscal Year 2002 1.15:1.00
1st Fiscal Quarter, Fiscal Year 2003 1.15:1.00
2nd Fiscal Quarter, Fiscal Year 2003 1.15:1.00
3rd Fiscal Quarter, Fiscal Year 2003 1.15:1.00
4th Fiscal Quarter, Fiscal Year 2003 1.15:1.00
1st Fiscal Quarter, Fiscal Year 2004 1.20:1.00
and each Fiscal Quarter thereafter
C. MAXIMUM CONSOLIDATED TOTAL LEVERAGE RATIO. Borrower shall
not permit the Consolidated Total Leverage Ratio as of the last day of the most
recently ended Fiscal Quarter ending during any of the periods set forth below
to exceed the correlative ratio indicated:
MAXIMUM CONSOLIDATED TOTAL LEVERAGE
PERIOD RATIO
------ -----
3rd Fiscal Quarter, Fiscal Year 2001 4.90:1.00
4th Fiscal Quarter, Fiscal Year 2001 4.90:1.00
1st Fiscal Quarter, Fiscal Year 2002 4.90:1.00
2nd Fiscal Quarter, Fiscal Year 2002 4.85:1.00
3rd Fiscal Quarter, Fiscal Year 2002 4.85:1.00
4th Fiscal Quarter, Fiscal Year 2002 4.85:1.00
1st Fiscal Quarter, Fiscal Year 2003 4.75:1.00
2nd Fiscal Quarter, Fiscal Year 2003 4.70:1.00
3rd Fiscal Quarter, Fiscal Year 2003 4.50:1.00
4th Fiscal Quarter, Fiscal Year 2003 4.25:1.00
1st Fiscal Quarter, Fiscal Year 2004 4.25:1.00
2nd Fiscal Quarter, Fiscal Year 2004 4.00:1.00
3rd Fiscal Quarter, Fiscal Year 2004 4.00:1.00
4th Fiscal Quarter, Fiscal Year 2004 3.75:1.00
1st Fiscal Quarter, Fiscal Year 2005 3.75:1.00
2nd Fiscal Quarter, Fiscal Year 2005 3.50:1.00
3rd Fiscal Quarter, Fiscal Year 2005 3.50:1.00
4th Fiscal Quarter, Fiscal Year 2005 3.25:1.00
1st Fiscal Quarter, Fiscal Year 2006 3.25:1.00
2nd Fiscal Quarter, Fiscal Year 2006 3.00:1.00
3rd Fiscal Quarter, Fiscal Year 2006 3.00:1.00
4th Fiscal Quarter, Fiscal Year 2006 2.75:1.00
1st Fiscal Quarter, Fiscal Year 2007 2.75:1.00
2nd Fiscal Quarter, Fiscal Year 2007 2.75:1.00
D. MAXIMUM CONSOLIDATED SENIOR LEVERAGE RATIO. Borrower shall
not permit the Consolidated Senior Leverage Ratio as of the last day of the most
recently ended Fiscal Quarter ending during any of the periods set forth below
to exceed the correlative ratio indicated:
MAXIMUM CONSOLIDATED SENIOR LEVERAGE
PERIOD RATIO
------ -----
3rd Fiscal Quarter, Fiscal Year 2001 3.00:1.00
4th Fiscal Quarter, Fiscal Year 2001 3.00:1.00
1st Fiscal Quarter, Fiscal Year 2002 3.00:1.00
2nd Fiscal Quarter, Fiscal Year 2002 3.00:1.00
3rd Fiscal Quarter, Fiscal Year 2002 3.00:1.00
4th Fiscal Quarter, Fiscal Year 2002 3.00:1.00
1st Fiscal Quarter, Fiscal Year 2003 2.85:1.00
2nd Fiscal Quarter, Fiscal Year 2003 2.80:1.00
3rd Fiscal Quarter, Fiscal Year 2003 2.50:1.00
4th Fiscal Quarter, Fiscal Year 2003 2.25:1.00
1st Fiscal Quarter, Fiscal Year 2004 2.25:1.00
2nd Fiscal Quarter, Fiscal Year 2004 2.00:1.00
3rd Fiscal Quarter, Fiscal Year 2004 2.00:1.00
4th Fiscal Quarter, Fiscal Year 2004 1.75:1.00
1st Fiscal Quarter, Fiscal Year 2005 1.75:1.00
and each Fiscal Quarter thereafter
E. MINIMUM CONSOLIDATED EBITDA. Borrower shall not permit
Consolidated EBITDA for any period set forth below to be less than the
correlative amount indicated:
PERIOD MINIMUM CONSOLIDATED EBITDA
------ ---------------------------
3rd Fiscal Quarter, Fiscal Year 2001 $36,250,000
4th Fiscal Quarter, Fiscal Year 2001 $36,250,000
1st Fiscal Quarter, Fiscal Year 2002 $36,250,000
2nd Fiscal Quarter, Fiscal Year 2002 $36,250,000
3rd Fiscal Quarter, Fiscal Year 2002 $36,250,000
4th Fiscal Quarter, Fiscal Year 2002 $36,250,000
1st Fiscal Quarter, Fiscal Year 2003 $36,250,000
2nd Fiscal Quarter, Fiscal Year 2003 $38,000,000
3rd Fiscal Quarter, Fiscal Year 2003 $38,000,000
4th Fiscal Quarter, Fiscal Year 2003 $40,000,000
1st Fiscal Quarter, Fiscal Year 2004 $40,000,000
2nd Fiscal Quarter, Fiscal Year 2004 $42,500,000
3rd Fiscal Quarter, Fiscal Year 2004 $42,500,000
4th Fiscal Quarter, Fiscal Year 2004 $43,500,000
1st Fiscal Quarter, Fiscal Year 2005 $43,500,000
2nd Fiscal Quarter, Fiscal Year 2005 $45,000,000
3rd Fiscal Quarter, Fiscal Year 2005 $45,000,000
4th Fiscal Quarter, Fiscal Year 2005 $45,000,000
1st Fiscal Quarter, Fiscal Year 2006 $45,000,000
2nd Fiscal Quarter, Fiscal Year 2006 $45,000,000
3rd Fiscal Quarter, Fiscal Year 2006 $45,000,000
4th Fiscal Quarter, Fiscal Year 2006 $45,000,000
1st Fiscal Quarter, Fiscal Year 2007 $45,000,000
2nd Fiscal Quarter, Fiscal Year 2007 $45,000,000
F. MINIMUM CONSOLIDATED NET WORTH. Borrower shall not permit
Consolidated Net Worth at any time to be less than the sum of (i) 90% of
Consolidated Net
Worth on the Closing Date PLUS (ii) 80% of positive Consolidated Net Income on a
cumulative basis since the Closing Date.
7.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES.
Borrower shall not, and shall not permit any of its Subsidiaries
to, alter the corporate, capital or legal structure of Borrower or any of its
Subsidiaries, or enter into any transaction of merger or consolidation, or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor),
transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, property or assets (including its
notes or receivables and Capital Stock of a Subsidiary, whether newly issued or
outstanding), whether now owned or hereafter acquired, or acquire by purchase or
otherwise all or substantially all the business, property or fixed assets of, or
stock or other evidence of beneficial ownership of, any Person or any division
or line of business of any Person (other than purchases or other acquisitions of
Inventory, materials and equipment in the ordinary course of Borrower's, or any
of its Subsidiary's, business) except:
(i) any Subsidiary of Borrower may be merged with or into
Borrower or any wholly-owned Subsidiary Guarantor, or be liquidated, wound
up or dissolved, or all or any part of its business, property or assets
may be conveyed, sold, leased, transferred or otherwise disposed of, in
one transaction or a series of transactions, to Borrower or any
wholly-owned Subsidiary Guarantor; PROVIDED that, (i) in the case of such
a merger, Borrower or such wholly-owned Subsidiary Guarantor shall be the
continuing or surviving Person and (ii) in the case of such a liquidation,
winding up or dissolution, all of the assets of such wholly-owned
Subsidiary Guarantor are transferred to Borrower or a Subsidiary Guarantor
that is wholly owned, directly or indirectly, by Borrower or as otherwise
expressly permitted under this Agreement;
(ii) Borrower and its Subsidiaries may sell or otherwise dispose
of assets in transactions that do not constitute Asset Sales; PROVIDED
that the consideration received for such assets shall be in an amount at
least equal to the fair market value thereof;
(iii) Borrower and its Subsidiaries may dispose of obsolete, worn
out or surplus property in the ordinary course of business;
(iv) Borrower and its Subsidiaries may make Asset Sales to
Persons who are not Affiliates of Borrower and its Subsidiaries of assets
having a fair market value not in excess of $1,000,000 in any Fiscal Year;
PROVIDED that (a) the consideration received for such assets shall be in
an amount at least equal to the fair market value thereof; (b) the sole
consideration received shall be Cash; and (c) the proceeds of such Asset
Sales shall be applied as required by subsection 2.4B(iii) or subsection
2.4D;
(v) in order to resolve disputes that occur in the ordinary
course of business, Borrower and its Subsidiaries may discount or
otherwise compromise for less than the face value thereof, notes or
accounts receivable;
(vi) Borrower or a Subsidiary may sell or dispose of shares of
Capital Stock of any of its Subsidiaries in order to qualify members of
the Governing Body of the Subsidiary if required by applicable law; and
(vii) Any Person may be merged with or into Borrower or any of
its Subsidiaries if the acquisition of the Capital Stock of such Person by
Borrower or such Subsidiary would have been permitted pursuant to
subsection 7.3(ii) and 7.8; PROVIDED that (a) in the case of Borrower,
Borrower shall be the continuing or surviving Person, (b) if a Subsidiary
of Borrower is not the surviving or continuing Person, the surviving
Person becomes a Subsidiary of Borrower and complies with the provisions
of subsection 6.8 and 6.9 and (c) no Potential Event of Default or Event
of Default shall have occurred or be continuing after giving effect
thereto.
7.8 CONSOLIDATED CAPITAL EXPENDITURES.
Borrower shall not, and shall not permit its Subsidiaries to, make
or incur Consolidated Capital Expenditures in an aggregate amount to exceed
$21,000,000 (and in any calendar year, in an aggregate amount in excess of
$7,500,000) prior to the date that the Loans are indefeasibly paid in full. Upon
Administrative Agent's prior written request, Borrower shall provide any
information reasonably requested by Administrative Agent regarding any such
material capital expenditure.
7.9 SALE OR DISCOUNT OF RECEIVABLES.
Except as otherwise permitted in subsection 7.7(v), Borrower shall
not, and shall not permit any of its Subsidiaries to, directly or indirectly,
sell with recourse, or discount or otherwise sell for less than the face value
thereof, any of its notes or accounts receivable.
7.10 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
A. Borrower shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, enter into or permit to exist any transaction
(including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any holder of 5% or more of any class of equity
Securities of Borrower or with any Affiliate of Borrower or of any such holder,
on terms that are less favorable to Borrower or that Subsidiary, as the case may
be, than those that might be obtained at the time from Persons who are not such
a holder or Affiliate; PROVIDED that the foregoing restriction shall not apply
to (i) any transaction between Borrower and any of its wholly-owned domestic
Subsidiaries that are Subsidiary Guarantors or between any of its wholly-owned
domestic Subsidiaries that are Subsidiary Guarantors, (ii) reasonable and
customary fees paid to members of the Governing Bodies of Borrower and its
Subsidiaries, (iii) so long as no Potential Event of Default or Event of Default
shall have occurred and be continuing or would arise as a result thereof, a
monitoring fee paid by Borrower to Affiliates of
Veritas in an aggregate amount not to exceed $300,000 per year, (iv) payments
made to Parent pursuant to Sections 2.5. 5.14(b) and 9.3 of the Combination
Agreement and as otherwise provided in subsection 7.10B, or (v) payments made to
Parent and certain Affiliates of Parent pursuant to the Ancillary Agreements (as
such term is defined in the Combination Agreement).
B. If any payments on account of Excluded A/R are received by
Borrower, Borrower shall be permitted to make a payment to Parent in an amount
up to the amount so received, in satisfaction of Borrower's obligations under
Section 5.14 of the Combination Agreement. All amounts received by Borrower on
account of Excluded A/R shall not be applied against any of the Obligations and
Borrower shall be permitted to make such payments to Parent notwithstanding the
occurrence of an Event of Default or Potential Default and notwithstanding any
covenant or agreement in any of the Loan Documents that might otherwise prevent,
condition or limit such payments.
7.11 SALES AND LEASE-BACKS
Borrower shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, become or remain liable as lessee or as a guarantor
or other surety with respect to any lease, whether an Operating Lease or a
Capital Lease, of any property (whether real, personal or mixed), whether now
owned or hereafter acquired in an aggregate amount in excess of $500,000, (i)
that Borrower or any of its Subsidiaries has sold or transferred or is to sell
or transfer to any other Person (other than Borrower or any of its Subsidiaries)
or (ii) that Borrower or any of its Subsidiaries intends to use for
substantially the same purpose as any other property that has been or is to be
sold or transferred by Borrower or any of its Subsidiaries to any Person (other
than Borrower or any of its Subsidiaries) in connection with such lease;
PROVIDED that Borrower and its Subsidiaries may become and remain liable as
lessee, guarantor or other surety with respect to any such lease if and to the
extent that Borrower or any of its Subsidiaries would be permitted to enter
into, and remain liable under, such lease to the extent that the transaction
would be permitted under clauses (iii) and (vii) of subsection 7.1, assuming the
sale and lease back transaction constituted Indebtedness in a principal amount
equal to the gross proceeds of the sale.
7.12 DISPOSAL OF SUBSIDIARY STOCK.
Except for any sale of 100% of the Capital Stock of any of its
Subsidiaries in compliance with the provisions of clauses (i), (iv), (vi) and
(vii) of subsection 7.7, Borrower shall not:
(i) directly or indirectly sell, assign, pledge or otherwise encumber
or dispose of any shares of Capital Stock of any of its Subsidiaries,
except to qualify directors if required by applicable law; or
(ii) permit any of its Subsidiaries directly or indirectly to sell,
assign, pledge or otherwise encumber or dispose of any shares of Capital
Stock of any of its Subsidiaries
(including such Subsidiary), except to Borrower, another wholly-owned
domestic Subsidiary of Borrower, or to qualify directors if required by
applicable law.
7.13 CONDUCT OF BUSINESS.
From and after the Closing Date, Borrower shall not, and shall not
permit any of its Subsidiaries to, engage in any business other than (i) the
businesses engaged in by Borrower 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 Requisite Lenders.
7.14 AMENDMENTS OR WAIVERS OF CERTAIN AGREEMENTS; AMENDMENTS OF
DOCUMENTS RELATING TO SUBORDINATED INDEBTEDNESS.
A. AMENDMENTS OR WAIVERS OF CERTAIN AGREEMENTS. Neither
Borrower nor any of its Subsidiaries will agree to any material amendment to, or
waive any of its material rights under, the Related Agreements or any other
agreement executed in connection therewith after the Closing Date without in
each case obtaining the prior written consent of Requisite Lenders to such
amendment or waiver.
B. AMENDMENTS OF DOCUMENTS RELATING TO SUBORDINATED
INDEBTEDNESS. Borrower shall not, and shall not permit any of its Subsidiaries
to, amend or otherwise change the terms of any Subordinated Indebtedness, or
make any payment consistent with an amendment thereof or change thereto, if the
effect of such amendment or change is to increase the interest rate on such
Subordinated Indebtedness, change (to earlier dates) any dates upon which
payments of principal or interest are due thereon, change any event of default
or condition to an event of default with respect thereto (other than to
eliminate any such event of default or increase any grace period related
thereto), change the redemption, prepayment or defeasance provisions thereof,
change the subordination provisions thereof (or of any guaranty thereof), or
change any collateral therefor (other than to release such collateral), or if
the effect of such amendment or change, together with all other amendments or
changes made, is to increase materially the obligations of the obligor
thereunder or to confer any additional rights on the holders of such
Subordinated Indebtedness (or a trustee or other representative on their behalf)
which would be adverse to Borrower or Lenders.
7.15 FISCAL YEAR; TAX ELECTION.
Borrower shall not change its Fiscal Year-end from December 31
unless Administrative Agent and Borrower have agreed to such amendments to the
computation of any financial ratio or requirement set forth in any Loan Document
that would be affected by such change in Fiscal Year-end that are necessary to
preserve the original intent of such financial ratios and requirements (subject
to the approval of Requisite Lenders); provided, however, that Borrower shall
have the one-time right prior to the date that the Loans are indefeasibly paid
in full to change its Fiscal Year-end to the last day of a calendar quarter
without the consent of Administrative Agent and without the need for agreement
to any such amendments. Borrower shall not make an election to be characterized
as a corporation for U.S. federal income tax purposes.
SECTION 8. EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF DEFAULT")
shall occur:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by Borrower to pay any installment of principal of any
Loan when due, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; failure by Borrower
to pay when due any amount payable to an Issuing Lender in reimbursement of any
drawing under a Letter of Credit; or failure by Borrower to pay any interest on
any Loan or any fee or any other amount due under this Agreement within three
Business Days after the date due; or
8.2 DEFAULT IN OTHER INDEBTEDNESS.
(i) Failure of Holdings, Borrower or any of its Subsidiaries to
pay when due any principal of or interest on or any other amount payable
in respect of one or more items of Indebtedness (other than Indebtedness
referred to in subsection 8.1) or Contingent Obligations with an aggregate
principal amount of $250,000 or more, in each case beyond the end of any
grace period provided therefor (not to exceed 30 days); or
(ii) breach or default by Holdings, Borrower or any of its
Subsidiaries with respect to any other material term of (a) one or more
items of Indebtedness or Contingent Obligations in the individual or
aggregate principal amount referred to in clause (i) above or (b) any loan
agreement, mortgage, indenture or other agreement relating to such item(s)
of Indebtedness or Contingent Obligation(s), if the effect of such breach
or default is to cause, or to permit the holder or holders of that
Indebtedness or Contingent Obligation(s) (or a trustee on behalf of such
holder or holders) to cause, that Indebtedness or Contingent Obligation(s)
to become or be declared due and payable prior to its stated maturity or
the stated maturity of any underlying obligation, as the case may be (upon
the giving or receiving of notice, lapse of time, both, or otherwise); or
8.3 BREACH OF CERTAIN COVENANTS.
Failure of Borrower to perform or comply with any term or
condition contained in subsections 2.5 or 6.1(xix) or 6.2 or Section 7 of this
Agreement; or
8.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement
made by Holdings, Borrower or any of its Subsidiaries in any Loan Document or in
any statement or certificate at any time given by Holdings, Borrower 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
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Any Loan Party shall default in the performance of or compliance
with any term contained in this Agreement or any of the other Loan Documents,
other than any such term referred to in any other subsection of this Section 8,
and such default shall not have been remedied or waived within 30 days after the
earlier of (i) an Officer of Borrower or such Loan Party becoming aware of such
default or (ii) receipt by Borrower and such Loan Party of notice from
Administrative Agent or any Lender of such default; or
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of Holdings, Borrower or any of its
Subsidiaries in an involuntary case under the Bankruptcy Code or under any
other applicable bankruptcy, insolvency or similar law now or hereafter in
effect, which decree or order is not stayed; or any other similar relief
shall be granted under any applicable federal or state law; or
(ii) an involuntary case shall be commenced against Holdings,
Borrower or any of its Subsidiaries under the Bankruptcy Code or under any
other applicable bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over Holdings,
Borrower or any of its Subsidiaries, or over all or a substantial part of
its property, shall have been entered; or there shall have occurred the
involuntary appointment of an interim receiver, trustee or other custodian
of Holdings, Borrower or any of its Subsidiaries for all or a substantial
part of its property; or a warrant of attachment, execution or similar
process shall have been issued against any substantial part of the
property of Holdings, Borrower or any of its Subsidiaries, and any such
event described in this clause (ii) shall continue for 60 days unless
dismissed, bonded or discharged; or
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Holdings, Borrower or any of its Subsidiaries shall have an
order for relief entered with respect to it or commence a voluntary case
under the Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect, or shall consent to
the entry of an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such law,
or shall consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property;
or Holdings, Borrower or any of its Subsidiaries shall make any assignment
for the benefit of creditors; or
(ii) Holdings, Borrower 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 Governing Body of
Holdings, Borrower or any of its Subsidiaries (or any committee thereof)
shall adopt any resolution or otherwise authorize any action to approve
any of the actions referred to in clause (i) above or this clause (ii); or
8.8 JUDGMENTS AND ATTACHMENTS.
Any money judgment, writ or warrant of attachment or similar
process involving in the aggregate at any time an amount in excess of $500,000
(in a case not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) shall be entered or
filed against Holdings, Borrower or any of its Subsidiaries or any of their
respective assets and shall remain undischarged, unvacated, unbonded or unstayed
for a period of 30 days (or in any event later than five days prior to the date
of any proposed sale thereunder); or
8.9 DISSOLUTION.
Any order, judgment or decree shall be entered against Holdings,
Borrower or any of its Subsidiaries decreeing the dissolution or split up of
Holdings, Borrower or that Subsidiary and such order shall remain undischarged
or unstayed for a period in excess of 30 days; or
8.10 EMPLOYEE BENEFIT PLANS.
There shall occur one or more ERISA Events which individually or
in the aggregate results in or might reasonably be expected to result in
liability of Borrower, any of its Subsidiaries or any of their respective ERISA
Affiliates in excess of $5,000,000 during the term of this Agreement; or there
shall exist an 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 exceeds $5,000,000; or
8.11 CHANGE IN CONTROL.
A Change in Control shall have occurred; or
8.12 INVALIDITY OF GUARANTIES; FAILURE OF SECURITY; REPUDIATION OF
OBLIGATIONS.
At any time after the execution and delivery thereof, (i) any
Guaranty for any reason, other than the satisfaction in full of all Obligations,
shall cease to be in full force and effect (other than in accordance with its
terms) or shall be declared to be null and void, (ii) any Collateral Document
shall cease to be in full force and effect (other than by reason of a release of
Collateral thereunder in accordance with the terms hereof or thereof, the
satisfaction in full of the Obligations or any other termination of such
Collateral Document in accordance with the terms hereof or thereof) or shall be
declared null and void, or Administrative Agent shall not have or shall cease to
have a valid and perfected First Priority Lien (except for Liens permitted by
subsection 7.2A) in any Collateral purported to be covered thereby, in each case
for any reason other than the failure of Administrative Agent or any Lender to
take any commercially reasonable action solely within its control, or (iii) any
Loan Party shall contest the validity or enforceability of any Loan Document in
writing or deny in writing that it has any further liability, including with
respect to future advances by Lenders, under any Loan Document to which it is a
party; or
8.13 CONDUCT OF BUSINESS BY HOLDINGS.
Holdings shall (i) engage in any business other than entering into
and performing its obligations under and in accordance with the Loan Documents
and Related Agreements to which it is a party or (ii) own any assets other than
Borrower Membership Interests; or
8.14 GOVERNMENT CONTRACTS AND MATERIAL CONTRACTS.
A. (i) There shall be a material default under any material
Government Contract or other Material Contract; (ii) a notice of termination
shall have been issued under any material Government Contract or other Material
Contract; or (iii) a cure notice issued under any material Government Contract
or other Material Contract shall remain uncured beyond (x) the expiration of the
time period available to Borrower or other Loan Party, as applicable, pursuant
to such material Government Contract or other Material Contract and/or such cure
notice (as the case may be), to cure the noticed default, or (y) the date on
which the other contracting party is entitled to exercise its rights and
remedies under the material Government Contract or other Material Contract as a
consequence of such default; or
B. (i) Borrower or any of its Subsidiaries is disbarred or suspended
from contracting with any Governmental Authority; (ii) a notice of debarment or
suspension has been issued to or received by Borrower or any of its
Subsidiaries; or (iii) an investigation or inquiry by any Governmental Authority
relating to any Loan Party and involving fraud, deception or willful misconduct
shall have been commenced in connection with any material Government Contract or
other Material Contract or any Loan Party's activities which, if adversely
determined, could reasonable be expected to result in the termination of such
material Government Contract or other Material Contract or, with respect to any
Loan Party's activities, could reasonably be expected to have a Material Adverse
Effect; or
8.15 UNINSURED DAMAGE.
Any uninsured damage to or losses, theft or destruction of any of
the assets of Borrower or any of its Subsidiaries occurs in excess of $750,000
in the aggregate; or
8.16 FAILURE TO CONSUMMATE THE TRANSACTIONS.
The Transactions shall not be consummated in accordance with this
Agreement and the applicable Related Agreements prior to or concurrently with
the making of the initial Loans, or the Transactions shall be unwound, reversed
or otherwise rescinded in whole or in part for any reason; or
8.17 SUBORDINATED INDEBTEDNESS.
There shall occur any default under any Subordinated Indebtedness, or
there shall occur any event that requires Holdings or any of its Subsidiaries to
purchase, redeem or otherwise acquire or offer to purchase, redeem or otherwise
acquire all or any portion of any Subordinated Indebtedness; or Holdings or any
of its Subsidiaries shall for any reasons purchase, redeem or
otherwise acquire or offer to purchase, redeem or otherwise acquire, or make any
other payments in respect of, all or any portion of any Subordinated
Indebtedness, except to the extent expressly permitted by subsection 7.5;
THEN (i) upon the occurrence of any Event of Default described in subsection 8.6
or 8.7, each of (a) the unpaid principal amount of and accrued interest on the
Loans, (b) an amount equal to the maximum amount that may at any time be drawn
under all Letters of Credit then outstanding (whether or not any beneficiary
under any such Letter of Credit shall have presented, or shall be entitled at
such time to present, the drafts or other documents or certificates required to
draw under such Letter of Credit), and (c) all other Obligations shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by Borrower, and the obligation of each Lender to make any Loan, the
obligation of Administrative Agent to issue any Letter of Credit and the right
of any Lender to issue any Letter of Credit hereunder shall thereupon terminate,
and (ii) upon the occurrence and during the continuation of any other Event of
Default, Administrative Agent shall, upon the written request or with the
written consent of Requisite Lenders, by written notice to Borrower, declare all
or any portion of the amounts described in clauses (a) through (c) above to be,
and the same shall forthwith become, immediately due and payable, and the
obligation of each Lender to make any Loan, the obligation of Administrative
Agent to issue any Letter of Credit and the right of any Lender to issue any
Letter of Credit hereunder shall thereupon terminate; PROVIDED that the
foregoing shall not affect in any way the obligations of Lenders under
subsection 3.3C(i) or the obligations of Lenders to purchase assignments of any
unpaid Swing Line Loans as provided in subsection 2.1A(iv).
Any amounts described in clause (b) above, when received by
Administrative Agent, shall be held by Administrative Agent pursuant to the
terms of the Security Agreement and shall be applied as therein provided.
Notwithstanding anything contained in the second preceding
paragraph, if at any time within 60 days after an acceleration of the Loans
pursuant to clause (ii) of such paragraph Borrower shall pay all arrears of
interest and all payments on account of principal which shall have become due
otherwise than as a result of such acceleration (with interest on principal and,
to the extent permitted by law, on overdue interest, at the rates specified in
this Agreement) and all Events of Default and Potential Events of Default (other
than non-payment of the principal of and accrued interest on the Loans, in each
case which is due and payable solely by virtue of acceleration) shall be
remedied or waived pursuant to subsection 10.6, then Requisite Lenders, by
written notice to Borrower, may at their option rescind and annul such
acceleration and its consequences; but such action shall not affect any
subsequent Event of Default or Potential Event of Default or impair any right
consequent thereon. The provisions of this paragraph are intended merely to bind
Lenders to a decision which may be made at the election of Requisite Lenders and
are not intended, directly or indirectly, to benefit Borrower, and such
provisions shall not at any time be construed so as to grant Borrower the right
to require Lenders to rescind or annul any acceleration hereunder or to preclude
Administrative Agent or Lenders from exercising any of the rights or remedies
available to them under any of the Loan Documents, even if the conditions set
forth in this paragraph are met.
SECTION 9. ADMINISTRATIVE AGENT
9.1 APPOINTMENT.
A. APPOINTMENT OF ADMINISTRATIVE AGENT. CIBC is hereby appointed
Administrative Agent hereunder and under the other Loan Documents and each
Lender hereby authorizes Administrative Agent to act as its administrative agent
in accordance with the terms of this Agreement and the other Loan Documents.
Administrative 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 Administrative Agent and Lenders and no
Loan Party shall have any rights as a third party beneficiary of any of the
provisions thereof. In performing its functions and duties under this Agreement,
Administrative Agent shall act solely as an Administrative Agent of Lenders and
does not assume and shall not be deemed to have assumed any obligation towards
or relationship of agency or trust with or for Holdings, Borrower or any of its
Subsidiaries.
B. APPOINTMENT OF SUPPLEMENTAL COLLATERAL AGENTS. It is the purpose
of this Agreement and the other Loan Documents that there shall be no violation
of any law of any jurisdiction denying or restricting the right of banking
corporations or associations to transact business as Administrative Agent or
trustee in such jurisdiction. It is recognized that in case of litigation under
this Agreement or any of the other Loan Documents, and in particular in case of
the enforcement of any of the Loan Documents, or in case Administrative Agent
deems that by reason of any present or future law of any jurisdiction it may not
exercise any of the rights, powers or remedies granted herein or in any of the
other Loan Documents or take any other action which may be desirable or
necessary in connection therewith, it may be necessary that Administrative Agent
appoint an additional individual or institution as a separate trustee,
co-trustee, collateral agent or collateral co-administrative agent (any such
additional individual or institution being referred to herein individually as a
"SUPPLEMENTAL COLLATERAL AGENT" and collectively as "SUPPLEMENTAL COLLATERAL
AGENTS").
If Administrative Agent appoints a Supplemental Collateral Agent
with respect to any Collateral, (i) each and every right, power, privilege or
duty expressed or intended by this Agreement or any of the other Loan Documents
to be exercised by or vested in or conveyed to Administrative Agent with respect
to such Collateral shall be exercisable by and vest in such Supplemental
Collateral Agent to the extent, and only to the extent, necessary to enable such
Supplemental Collateral Agent to exercise such rights, powers and privileges
with respect to such Collateral and to perform such duties with respect to such
Collateral, and every covenant and obligation contained in the Loan Documents
and necessary to the exercise or performance thereof by such Supplemental
Collateral Agent shall run to and be enforceable by either Administrative Agent
or such Supplemental Collateral Agent, and (ii) the provisions of this Section 9
and of subsections 10.2 and 10.3 that refer to Administrative Agent shall inure
to the benefit of such Supplemental Collateral Agent and all references therein
to Administrative Agent shall be deemed to be references to Administrative Agent
and/or such Supplemental Collateral Agent, as the context may require.
Should any instrument in writing from Borrower or any other Loan
Party be required by any Supplemental Collateral Agent so appointed by
Administrative Agent for more fully and certainly vesting in and confirming to
him or it such rights, powers, privileges and duties, Borrower shall, or shall
cause such Loan Party to, execute, acknowledge and deliver any and all such
instruments promptly upon request by Administrative Agent. In case any
Supplemental Collateral Agent, or a successor thereto, shall die, become
incapable of acting, resign or be removed, all the rights, powers, privileges
and duties of such Supplemental Collateral Agent, to the extent permitted by
law, shall vest in and be exercised by Administrative Agent until the
appointment of a new Supplemental Collateral Agent.
9.2 POWERS AND DUTIES; GENERAL IMMUNITY.
▇. ▇▇▇▇▇▇; DUTIES SPECIFIED. Each Lender irrevocably authorizes
Administrative 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 Administrative Agent by the terms
hereof and thereof, together with such powers, rights and remedies as are
reasonably incidental thereto. Administrative Agent shall have only those duties
and responsibilities that are expressly specified in this Agreement and the
other Loan Documents. Administrative Agent may exercise such powers, rights and
remedies and perform such duties by or through its agents or employees.
Administrative 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
Administrative 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. Administrative 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 Administrative Agent to Lenders or by
or on behalf of Borrower to Administrative Agent or any Lender in connection
with the Loan Documents and the transactions contemplated thereby or for the
financial condition or business affairs of Borrower or any other Person liable
for the payment of any Obligations, nor shall Administrative 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 the use of the Letters
of Credit or as to the existence or possible existence of any Event of Default
or Potential Event of Default. Anything contained in this Agreement to the
contrary notwithstanding, Administrative Agent shall not have any liability
arising from confirmations of the amount of outstanding Loans or the Letter of
Credit Usage or the component amounts thereof.
C. EXCULPATORY PROVISIONS. Neither Administrative Agent nor any of
its officers, directors, employees or agents shall be liable to Lenders for any
action taken or omitted by Administrative Agent under or in connection with any
of the Loan Documents except to the
extent caused by Administrative Agent's gross negligence or willful misconduct.
Administrative 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
Administrative Agent shall have received instructions in respect thereof from
Requisite Lenders (or such other Lenders as may be required to give such
instructions under subsection 10.6) and, upon receipt of such instructions from
Requisite Lenders (or such other Lenders, as the case may be), Administrative
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)
Administrative 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 Borrower and its
Subsidiaries), accountants, experts and other professional advisors selected by
it; and (ii) no Lender shall have any right of action whatsoever against
Administrative Agent as a result of Administrative 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. ADMINISTRATIVE AGENT ENTITLED TO ACT AS LENDER. The agency hereby
created shall in no way impair or affect any of the rights and powers of, or
impose any duties or obligations upon, Administrative Agent in its individual
capacity as a Lender hereunder. With respect to its participation in the Loans
and the Letters of Credit, Administrative 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 Administrative Agent in its individual capacity.
Administrative 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 Borrower or any of its Affiliates as if it were not performing the
duties specified herein, and may accept fees and other consideration from
Borrower 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 Borrower 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 Borrower and its Subsidiaries. Administrative Agent 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 Administrative Agent 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 Administrative Agent, to the extent that Administrative Agent shall
not have been reimbursed by Borrower, 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
Administrative 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 Administrative 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
Administrative Agent's gross negligence or willful misconduct. If any indemnity
furnished to Administrative Agent for any purpose shall, in the opinion of
Administrative Agent, be insufficient or become impaired, Administrative 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 ADMINISTRATIVE AGENT AND SUCCESSOR SWING LINE LENDER.
A. SUCCESSOR ADMINISTRATIVE AGENT. Administrative Agent may resign at
any time by giving 30 days' prior written notice thereof to Lenders and
Borrower, and Administrative Agent may be removed at any time with or without
cause by an instrument or concurrent instruments in writing delivered to
Borrower and Administrative Agent and signed by Requisite Lenders. Upon any such
notice of resignation or any such removal, Requisite Lenders shall have the
right, upon five Business Days' notice to Borrower, to appoint a successor
Administrative Agent. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, that successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring or removed Administrative
Agent and the retiring or removed Administrative Agent shall be discharged from
its duties and obligations under this Agreement. After any retiring or removed
Administrative Agent's resignation or removal hereunder as Administrative Agent,
the provisions of this Section 9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement.
B. SUCCESSOR SWING LINE LENDER. Swing Line Lender may resign at any
time by giving 30 days' prior written notice thereof to Administrative Agent,
Lenders and Borrower, and Swing Line Lender may be removed at any time with or
without cause by an instrument or concurrent instruments in writing delivered to
Borrower and Administrative Agent and signed by Requisite Lenders. In such event
(i) Borrower shall prepay any outstanding Swing Line Loans made by the retiring
or removed Swing Line Lender in its capacity as Swing Line Lender, (ii) upon
such prepayment, the retiring or removed Swing Line Lender shall surrender the
Swing Line Note held by it to Borrower for cancellation, and (iii) Borrower
shall issue a new Swing
Line Note to the successor Swing Line Lender substantially in the form of
EXHIBIT VIII annexed hereto, in the principal amount of the Swing Line Loan
Commitment then in effect and with other appropriate insertions.
9.6 COLLATERAL DOCUMENTS AND GUARANTIES.
Each Lender hereby further authorizes Administrative Agent, on
behalf of and for the benefit of Lenders, to enter into each Collateral Document
as secured party and to be Administrative Agent for and representative of
Lenders under each of the Guaranties, and each Lender agrees to be bound by the
terms of each Collateral Document and each of the Guaranties; PROVIDED that
Administrative Agent shall not (i) enter into or consent to any material
amendment, modification, termination or waiver of any provision contained in any
Collateral Document or any of the Guaranties or (ii) release any Collateral or
Subsidiary Guarantor (except as otherwise expressly permitted or required
pursuant to the terms of this Agreement or the applicable Collateral Document),
in each case without the prior consent of Requisite Lenders (or, if required
pursuant to subsection 10.6, all Lenders); PROVIDED FURTHER, HOWEVER, that,
without further written consent or authorization from Lenders, Administrative
Agent may execute any documents or instruments necessary to (a) release any Lien
encumbering any item of Collateral that is the subject of a sale or other
disposition of assets permitted by this Agreement or to which Requisite Lenders
have otherwise consented, or (b) release any Subsidiary Guarantor from the
Subsidiary Guaranty if all of the Capital Stock of such Subsidiary Guarantor is
sold to any Person (other than an Affiliate of Borrower) pursuant to a sale or
other disposition permitted hereunder or to which Requisite Lenders have
otherwise consented. Anything contained in any of the Loan Documents to the
contrary notwithstanding, Borrower, Administrative Agent and each Lender hereby
agree that (X) no Lender shall have any right individually to realize upon any
of the Collateral under any Collateral Document or to enforce any Guaranty, it
being understood and agreed that all powers, rights and remedies under the
Collateral Documents and the Guaranties may be exercised solely by
Administrative Agent for the benefit of Lenders in accordance with the terms
thereof, and (Y) in the event of a foreclosure by Administrative Agent on any of
the Collateral pursuant to a public or private sale, Administrative Agent or any
Lender may be the purchaser of any or all of such Collateral at any such sale
and Administrative Agent, as Administrative Agent for and representative of
Lenders (but not any Lender or Lenders in its or their respective individual
capacities unless Requisite Lenders shall otherwise agree in writing) shall be
entitled, for the purpose of bidding and making settlement or payment of the
purchase price for all or any portion of the Collateral sold at any such public
sale, to use and apply any of the Obligations as a credit on account of the
purchase price for any Collateral payable by Administrative Agent at such sale.
9.7 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to Holdings, Borrower or any of the
Subsidiaries of Holdings or Borrower, Administrative Agent (irrespective of
whether the principal of any Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether
Administrative Agent shall
have made any demand on Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise
(i) to file and prove a claim for the whole amount of principal
and interest owing and unpaid in respect of the Loans and any other
Obligations that are owing and unpaid and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
Lenders and Agents (including any claim for the reasonable compensation,
expenses, disbursements and advances of Lenders and Agents and their
agents and counsel and all other amounts due Lenders and Agents under
subsections 2.3 and 10.2) allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to Administrative Agent and, if Administrative
Agent shall consent to the making of such payments directly to Lenders, to pay
to Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of Agents and their agents and counsel, and
any other amounts due Agents under subsections 2.3 and 10.2.
Nothing herein contained shall be deemed to authorize
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lenders or to authorize
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
SECTION 10. MISCELLANEOUS
10.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS AND LETTERS OF CREDIT.
A. GENERAL. Subject to subsections 10.1B and 10.1C, each Lender shall
have the right at any time to (i) sell, assign or transfer to any Eligible
Assignee, or (ii) sell participations to any Person in, all or any part of its
Commitments or any Loan or Loans made by it or its Letters of Credit or
participations therein or any other interest herein or in any other Obligations
owed to it; PROVIDED that no such sale, assignment, transfer or participation
shall, without the consent of Borrower, require Borrower to file a registration
statement with the Securities and Exchange Commission or apply to qualify such
sale, assignment, transfer or participation under the securities laws of any
state; PROVIDED, FURTHER, that no such sale, assignment or transfer described in
clause (i) above shall be effective unless and until an Assignment Agreement
effecting such sale, assignment or transfer shall have been accepted by
Administrative Agent and recorded in the Register as provided in subsection
10.1B(ii); PROVIDED, FURTHER, that no such sale, assignment or transfer of any
Letter of Credit or any participation therein may be made separately from a
sale, assignment, transfer or participation of a corresponding interest in the
Revolving Loan Commitment and the Revolving Loans of the Lender effecting such
sale, assignment, transfer or participation; and PROVIDED, FURTHER, that,
anything contained herein to the
contrary notwithstanding, the Swing Line Loan Commitment and the Swing Line
Loans of Swing Line Lender may not be sold, assigned or transferred as described
in clause (i) above to any Person other than a successor Swing Line Lender to
the extent contemplated by subsection 9.5. Except as otherwise provided in this
subsection 10.1, no Lender shall, as between Borrower 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 participations therein, or the other Obligations
owed to such Lender, and such Lender shall remain solely responsible for the
performance of such Obligations, and Borrower shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
B. ASSIGNMENTS.
(i) AMOUNTS AND TERMS OF ASSIGNMENTS. Each Commitment or Loan
may (a) be assigned in any amount to another Lender, or to an Affiliate or
Approved Fund of the assigning Lender or another Lender, with the giving
of notice to Borrower and Administrative Agent or (b) be assigned in an
aggregate amount of not less than $1,000,000 (or such lesser amount as
shall constitute the aggregate amount of the Commitments or Loans of the
assigning Lender) to any other Eligible Assignee treating any two or more
Approved Funds with the same investment advisor as a single Eligible
Assignee with the consent of Borrower (unless a Potential Event of Default
or an Event of Default has occurred and is continuing) and Administrative
Agent (which consent of Borrower and Administrative Agent shall not be
unreasonably withheld or delayed); provided that each partial assignment
shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement. 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 or Loans 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 (provided that (i) no such processing and recordation fee shall be
payable if the assignee is an Affiliate of the assignor or a Person under
common management with the assignor, and (ii) only one such fee shall be
required in connection with a simultaneous assignment to a group of
Approved Funds with the same investment advisor) and such forms (including
an administrative questionnaire if the Eligible Assignee is not a Lender),
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; PROVIDED that, anything contained in any of the Loan
Documents to the contrary notwithstanding, if such Lender is the Issuing
Lender with respect to any outstanding Letters of Credit such Lender shall
continue to have all rights and obligations of an Issuing Lender with
respect to such Letters of Credit until the cancellation or expiration of
such Letters of Credit and the reimbursement of any amounts drawn
thereunder). The Commitments hereunder shall be modified to reflect the
Commitment of such assignee and any remaining Commitment of such assigning
Lender and, if any such assignment occurs after the issuance of any Notes
hereunder, the assigning Lender shall, upon the effectiveness of such
assignment or as promptly thereafter as practicable, surrender its
applicable Notes, if any, to Administrative Agent for cancellation, and
thereupon new Notes shall, if so requested by the assignee and/or the
assigning Lender in accordance with subsection 2.1D, be issued to the
assignee and/or to the assigning Lender, substantially in the form of
EXHIBIT V, EXHIBIT VI or EXHIBIT VII annexed hereto, as the case may be,
with appropriate insertions, to reflect the new Commitments and/or
outstanding Revolving Loans and/or outstanding Term Loans, as the case may
be, of the assignee and/or the assigning Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection 10.1B shall be treated for purposes
of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection 10.1C.
(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 (if so
required) 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 if necessary, Borrower) has
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
Borrower. 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. Any Lender may, without the consent of, or notice
to, Borrower or Administrative Agent, sell participations to one or more banks
or other entities (a "PARTICIPANT") in all or a portion of such Lender's rights
and/or obligations under this Agreement (including all or a portion of its
Commitment and/or the Loans owing to it); PROVIDED that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, and (iii) Borrower, Administrative Agent and the other Lenders
shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of the Loan Documents;
PROVIDED that such agreement or instrument may provide that such Lender will
not, without the consent of such Participant, agree to any amendment,
modification or waiver that affects such Participant if such amendment,
modification or waiver requires the unanimous written consent of all Lenders
pursuant to subsection 10.6. Subject to subsection 10.1D, Borrower agrees that
each Participant shall be entitled to the benefits of subsections 2.6D, 2.7, and
3.6 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection 10.1B; PROVIDED, HOWEVER, that in no event
shall Borrower be obligated to make any payment with respect to such subsections
which is greater than the amount that Borrower would have paid to the Lender had
no such participation been sold. To the extent permitted by law, if any amounts
outstanding under this Agreement are due and unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default,
each participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement.
D. NO GREATER PAYMENTS TO PARTICIPANTS. A Participant shall not be
entitled to receive any greater payment under subsections 2.6D, 2.7, and 3.6
than the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant, unless the sale of the participation
to such Participant is made with Borrower's prior written consent. A Participant
that would be a Non-US Lender if it were a Lender shall not be entitled to the
benefits of subsection 2.7 unless Borrower is notified of the participation sold
to such Participant and such Participant agrees, for the benefit of Borrower, to
comply with subsection 2.7B(iii) as though it were a Lender.
E. ASSIGNMENTS TO SECURED PARTIES AND TRUSTEES. In addition to the
assignments and participations permitted under the foregoing provisions of this
subsection 10.1, (a) 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 creditor,
including 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 Borrower 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 creditor be considered to be a "Lender" or be entitled to
require the assigning Lender to take or omit to take any action hereunder, (b)
any Lender which is a Fund may pledge its Notes to its trustee for the benefit
of its investors.
F. INFORMATION. Each Lender may furnish any information concerning
Borrower and its Subsidiaries in the possession of that Lender from time to time
to assignees and participants (including prospective assignees and
participants), subject to subsection 10.19.
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
loans such as the Loans; and (iii) that it will make its Loans for its own
account in the ordinary course of its business and without a present 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 such Assignment Agreement are incorporated herein by this reference.
10.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, Borrower agrees to pay promptly (i) all the actual and reasonable
costs and expenses of preparation of the Loan Documents and any consents,
amendments, waivers or other modifications thereto; (ii) all the costs of
furnishing all opinions by counsel for Borrower (including any opinions
requested by Lenders as to any legal matters arising hereunder) and of
Borrower'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 Administrative Agent 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 Borrower; (iv) all the actual costs and
reasonable expenses of creating and perfecting Liens in favor of Administrative
Agent on behalf of Lenders pursuant to any Collateral Document, including filing
and recording fees, expenses and taxes, stamp or documentary taxes, search fees,
title insurance premiums, and reasonable fees, expenses and disbursements of
counsel to Administrative Agent and of counsel providing any opinions that
Administrative Agent or Requisite Lenders may request in respect of the
Collateral Documents or the Liens created pursuant thereto; (v) all the actual
costs and reasonable expenses (including the reasonable fees, expenses and
disbursements of any auditors, accountants or appraisers and any environmental
or other consultants, advisors and agents employed or retained by Administrative
Agent or its counsel) of obtaining and reviewing any environmental audits or
reports provided for as a result of its due diligence or 6.7B and any audits or
reports provided for under subsection 4.1M or 6.5B with respect to Inventory and
accounts receivable of Borrower and its Subsidiaries; (vi) the custody or
preservation of any of the Collateral; (vii) all other actual and reasonable
costs and expenses incurred by Administrative Agent 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 (viii) 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 Administrative Agent and each Lender in enforcing any
Obligations of or in collecting any payments due from any Loan Party hereunder
or under the other Loan Documents by reason of such Event of Default (including
in connection with the sale of, collection from, or other realization upon any
of the Collateral or the enforcement of the
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,
Borrower agrees to defend (subject to Indemnitees' selection of counsel),
indemnify, pay and hold harmless Administrative Agent and Lenders, and the
officers, directors, employees, counsel, agents, representatives, advisors and
affiliates of Administrative Agent and Lenders (collectively called the
"INDEMNITEES"), from and against any and all Indemnified Liabilities (as
hereinafter defined); PROVIDED that Borrower 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 (including the costs of any investigation, study, sampling,
testing, abatement, cleanup, removal, remediation or other response action
necessary to remove, remediate, clean up or ▇▇▇▇▇ any Hazardous Materials
Activity), expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto, and any fees or expenses
incurred by Indemnitees in enforcing this indemnity), whether direct, indirect
or consequential and whether based on any federal, state or foreign laws,
statutes, rules or regulations (including securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of (i) this Agreement or the other Loan Documents or the Related
Agreements 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 the issuance of Letters of Credit hereunder or the use or
intended use of any thereof, or any enforcement of any of the Loan Documents
(including any sale of, collection from, or other realization upon any of the
Collateral or the enforcement of the Subsidiary Guaranty), (ii) the statements
contained in the commitment letter delivered by any Lender to Borrower or
Administrative Agent with respect thereto, or (iii) any Environmental Claim or
any Hazardous Materials Activity relating to or arising from, directly or
indirectly, any past or present activity, operation, land ownership, or practice
of Borrower or any of its Subsidiaries.
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, Borrower 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; SECURITY INTEREST IN DEPOSIT ACCOUNTS.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Lender is hereby authorized by Borrower
at any time or from time to time, without notice to Borrower 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 or other amounts held by any
Lender for the credit or account of Borrower (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 Borrower against and
on account of the obligations and liabilities of Borrower to that Lender under
this Agreement, the Letters of Credit and participations therein and the other
Loan Documents, including all claims of any nature or description arising out of
or connected with this Agreement, the Letters of Credit and participations
therein or any other Loan Document, irrespective of whether or not (i) that
Lender shall have made any demand hereunder or (ii) the principal of or the
interest on the Loans or any amounts in respect of the Letters of Credit or any
other amounts due hereunder or under any of the other Loan Documents 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. Borrower hereby
further grants to Administrative Agent and each Lender a security interest in
all deposits and accounts maintained with Administrative Agent or such Lender as
security for the Obligations.
10.5 RATABLE SHARING.
Lenders hereby agree among themselves that if any of them shall,
whether by voluntary payment (other than a voluntary prepayment of Loans made
and applied in accordance with the terms of this Agreement), by realization upon
security, through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the Loan
Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and owing to that
Lender hereunder or under the other Loan Documents (collectively, the "AGGREGATE
AMOUNTS DUE" to such Lender) that 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 hereunder; 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 Borrower or
otherwise (and whether by litigation, demand, settlement 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. Borrower 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 Borrower 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 or of any of the other Loan Documents, and no
consent to any departure by Borrower herefrom or therefrom, shall in any event
be effective without the written concurrence of Requisite Lenders; unless
otherwise provided elsewhere in this Agreement; provided that in addition:
(a) any such amendment, modification, termination, waiver or
consent which:
(i) postpones the date or reduces the amount of any scheduled
payment of principal of any of the Loans;
(ii) postpones the date on which any interest or any fees are
payable or reduces the amount of any interest or any fees payable hereunder;
(iii) changes in any manner the definition of "Pro Rata Share",
the definition of "Requisite Lenders";
(iv) changes in any manner any provision of this Agreement
which, by its terms, expressly requires the approval or concurrence of all
Lenders;
(v) releases any Lien granted in favor of Administrative Agent
with respect to all or substantially all of the Collateral;
(vi) releases all or substantially all of the Subsidiary
Guarantors from their obligations under the Subsidiary Guaranty, in each case
other than in accordance with the terms of the Loan Documents;
(vii) changes in any manner the provisions contained in
subsection 8.1 or this subsection 10.6; or
(viii) releases Holdings from its obligations under the Holdings
Guaranty or the Security Agreement other than in accordance with the terms of
the Loan Documents;
shall be effective only if evidenced by the written concurrence of
all Lenders.
In addition,
(b) no amendment, modification, termination or waiver of any
provision of any Note shall be effective without the written concurrence of the
Lender that is the holder of that Note;
(c) no amendment, modification, termination or waiver of any
provision of subsection 2.1A(i)-2.1A(iii) or of any other provision of this
Agreement relating to the Term Loan Commitments or the Revolving Loan
Commitments shall increase the Commitments of any Lender over the amount thereof
then in effect without the consent of Requisite Lenders and such Lender (it
being understood that amendments, modifications or waivers of conditions
precedent, representations and warranties, covenants or Events of Default or of
a mandatory reduction in the Commitments shall not constitute an increase of the
Commitment of any Lender, and that an increase in the available portion of any
Commitment of any Lender shall not constitute an increase in the Commitment of
such Lender);
(d) no amendment, modification, termination or waiver of any
provision of subsection 2.1A(iv) or of any other provision of this Agreement
relating to the Swing Line Loan Commitment or the Swing Line Loans shall be
effective without the written concurrence of Swing Line Lender; and
(e) no amendment, modification, termination or waiver of any
provision of Section 9 or of any other provision of this Agreement that, by its
terms, expressly requires the approval or concurrence of Administrative Agent
shall be effective without the written concurrence of Administrative Agent.
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 Borrower in any case shall entitle Borrower 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 Borrower, on Borrower. Notwithstanding anything
contained herein to the contrary, as among Lenders and Administrative Agent in
connection with the exercise of remedies under any of Loan Documents, the
written concurrence of Requisite Lenders shall be required for Administrative
Agent to execute proxy rights in the election of the board of directors of any
Loan Party owning real property or to acquire any ownership interest in real
property of any Loan Party.
10.7 INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so that
if a particular action or condition is not permitted by any of such covenants,
the fact that it would be permitted by an exception to, or would otherwise be
within the limitations of, another covenant shall not avoid the occurrence of an
Event of Default or Potential Event of Default if such action is taken or
condition exists.
10.8 NOTICES; EFFECTIVENESS OF SIGNATURES.
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 Administrative Agent shall not
be effective until received. For the purposes hereof, the address of each party
hereto shall be as set forth under such party's name on the signature pages
hereof or (i) as to Borrower and Administrative Agent, such other address as
shall be designated by such Person in a written notice delivered to the other
parties hereto and (ii) as to each other party, such other address as shall be
designated by such party in a written notice delivered to Administrative Agent.
A courtesy copy of any notice delivered to Borrower or any other Loan Party will
be delivered to Winston & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇ and Wachtell
Lipton ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇; provided, however,
Administrative Agent and Lenders shall no liability for any failure to deliver a
courtesy copy to ▇▇. ▇▇▇▇ or ▇▇. ▇▇▇▇▇▇▇▇ and any failure to deliver such notice
to ▇▇. ▇▇▇▇ or ▇▇. ▇▇▇▇▇▇▇▇ shall not affect the validity or effectiveness of
any notice delivered to Borrower or any other Loan Party in accordance with the
terms of this Agreement.
10.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
A. All representations, warranties and agreements made herein
shall survive the execution and delivery of this Agreement and the making of the
Loans and the issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by
law to the contrary, the agreements of Borrower set forth in subsections 2.6D,
2.7, 3.5A, 3.6, 10.2, 10.3, 10.4, 10.17, and 10.18 and the agreements of Lenders
set forth in subsections 9.2C, 9.4, 10.5 and 10.18 shall survive the payment of
the Loans, the cancellation or expiration of the Letters of Credit and the
reimbursement of any amounts drawn thereunder, and the termination of this
Agreement.
10.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of Administrative Agent or 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 Borrower or any other party or
against or in payment of any or all of the Obligations. To the extent that
Borrower 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 (whether by litigation, demand, settlement or
otherwise), then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies therefor
or related thereto, shall be revived and continued in full force and effect as
if such payment or payments had not been made or such enforcement or setoff had
not occurred.
10.12 SEVERABILITY.
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, or Lenders and Borrower, 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.
The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that Borrower may not assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by Borrower without such
consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, Affiliates of Administrative Agent and
Affiliates of Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
10.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST BORROWER 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, BORROWER, 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;
(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 BORROWER 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 BORROWER 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 BORROWER
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 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 that has been identified in
writing as confidential by Borrower in accordance with such Lender's customary
procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices, it being understood and agreed
by Borrower that in any event a Lender may make disclosures (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
information and instructed to keep such information confidential), (b) to the
extent requested by any Government Authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this subsection 10.19, to (i) any
Eligible Assignee of or participant in, or any prospective Eligible Assignee of
or
Participant in, any of its rights or obligations under this Agreement or (ii)
any direct or indirect contractual counterparty or prospective counterparty (or
such contractual counterparty's or prospective counterparty's professional
advisor) to any credit derivative transaction relating to obligations of
Borrower, (g) with the consent of Borrower, (h) to the extent such information
(i) becomes publicly available other than as a result of a breach of this
subsection 10.19, or (ii) becomes available to Administrative Agent or any
Lender on a nonconfidential basis from a source other than Borrower, or (i) to
the National Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's or its Affiliates' investment portfolio in
connection with ratings issued with respect to such Lender or its Affiliates;
PROVIDED that, unless specifically prohibited by applicable law or court order,
each Lender shall notify Borrower of any request by any Government Authority or
representative thereof (other than any such request in connection with any
examination of the financial condition of such Lender by such Government
Authority) 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 Borrower or any of
its Subsidiaries. Notwithstanding anything contained herein to the contrary,
Borrower understands and agrees that Administrative Agent and each of the
institutions identified as "Lead Arranger," "Co-Lead Arranger," "Documentation
Agent" or "Co-Syndication Agent" on the title page to this Agreement may make
customary disclosures for advertising and "league table" purposes.
10.20 LEAD ARRANGER, BOOKRUNNER, DOCUMENTATION AGENT AND SYNDICATION
AGENT.
None of the institutions identified as "Lead Arranger," "Co-Lead
Arranger," "Documentation Agent" or "Co-Syndication Agent" on the title page to
this Agreement shall have any obligations, liabilities or duties under this
Agreement other than those applicable to a Lender (but only if such institution
is a Lender) as such, and no such institution shall have or be deemed to have
any fiduciary relationship with any Lender. Each Lender acknowledges that it has
not relied, and will not rely, on any such institution in deciding to enter into
this Agreement or in taking or not taking any action hereunder.
10.21 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 Borrower and
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
[Remainder of page intentionally left blank]
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.
BORROWER:
RAYTHEON AEROSPACE LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Authorized Signatory
Notice Address:
Raytheon Aerospace LLC
c/o The Veritas Capital Fund, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a courtesy copy to:
Winston & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
and
Wachtell Lipton ▇▇▇▇▇ and ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
ADMINISTRATIVE AGENT:
CANADIAN IMPERIAL BANK OF COMMERCE, as
Administrative Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
CIBC World Markets Corp., AS AGENT
Notice Address:
CANADIAN IMPERIAL BANK OF COMMERCE
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: Agency Services Dept.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to:
CIBC WORLD MARKETS CORP.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
LEAD ARRANGER:
CIBC WORLD MARKETS CORP., as
Lead Arranger
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
Notice Address:
CIBC WORLD MARKETS CORP.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to:
CANADIAN IMPERIAL BANK OF COMMERCE
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: Agency Services Dept.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
LENDERS:
CIBC INC., as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
CIBC World Markets Corp., AS AGENT
Notice Address:
CIBC INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: Agency Services Dept.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to:
CIBC WORLD MARKETS CORP.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
TRUSTMARK NATIONAL BANK, as a Swing Line
Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
Notice Address:
Trustmark National Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ FINANCIAL, INC., as Co-Syndication Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
▇▇▇▇▇▇ Financial, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
GENERAL ELECTRIC CAPITAL CORPORATION,
as Documentation Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Duly Authorized Signatory
Notice Address:
General Electric Capital Corporation
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Raytheon Aerospace Account Manager
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
CREDIT LYONNAIS NEW YORK BRANCH, as Co-
Syndication Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Notice Address:
Credit Lyonnais New York Branch 1301
Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
Bank of Tokyo-Mitsubishi
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Droussitis
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇