Exhibit 10.18
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
August 28, 2008
among
▇-▇▇▇-▇▇▇▇▇▇▇.▇▇▇, INC.,
The SUBSIDIARY BORROWERS Party Hereto,
The GUARANTORS Party Hereto,
The LENDERS Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
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$293,000,000
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Sole Lead Arranger and Sole Bookrunner
BANK OF AMERICA, N.A.
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agents
CAPITAL ONE, N.A.,
as Documentation Agent
TABLE OF CONTENTS
Page
ARTICLE I.................................................................1
DEFINITIONS...............................................................1
SECTION 1.01. Defined Terms.................................................1
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SECTION 1.02. Terms Generally..............................................23
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SECTION 1.03. Accounting Terms; GAAP.......................................23
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ARTICLE II...............................................................23
THE CREDITS..............................................................23
SECTION 2.01. The Commitments..............................................23
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SECTION 2.02. Loans and Borrowings.........................................24
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SECTION 2.03. Requests for Borrowings......................................25
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SECTION 2.04. Swingline Loans..............................................26
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SECTION 2.05. Letters of Credit............................................27
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SECTION 2.06. Funding of Borrowings........................................31
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SECTION 2.07. Interest Elections...........................................31
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SECTION 2.08. Termination, Reduction and Increase of the Commitments.......33
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SECTION 2.09. Repayment of Loans; Evidence of Debt.........................36
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SECTION 2.10. Prepayment of Loans..........................................39
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SECTION 2.11. Fees.........................................................40
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SECTION 2.12. Interest.....................................................41
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SECTION 2.13. Alternate Rate of Interest...................................42
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SECTION 2.14. Increased Costs..............................................42
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SECTION 2.15. Break Funding Payments.......................................43
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SECTION 2.16. Taxes........................................................44
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SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs..47
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SECTION 2.18. Mitigation Obligations; Replacement of Lenders...............49
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SECTION 2.19. Designation of Subsidiary Borrowers..........................49
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ARTICLE III..............................................................50
GUARANTEE................................................................50
SECTION 3.01. The Guarantee................................................50
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SECTION 3.02. Obligations Unconditional....................................51
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SECTION 3.03. Reinstatement................................................52
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SECTION 3.04. Subrogation..................................................52
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SECTION 3.05. Remedies.....................................................52
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SECTION 3.06. Instrument for the Payment of Money..........................52
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SECTION 3.07. Continuing Guarantee.........................................52
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SECTION 3.08. Rights of Contribution.......................................52
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SECTION 3.09. General Limitation on Guarantee Obligations..................53
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ARTICLE IV...............................................................54
REPRESENTATIONS AND WARRANTIES...........................................54
SECTION 4.01. Organization; Powers.........................................54
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SECTION 4.02. Authorization; Enforceability................................54
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SECTION 4.03. Governmental Approvals; No Conflicts.........................54
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SECTION 4.04. Financial Condition; No Material Adverse Change..............54
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SECTION 4.05. Properties...................................................55
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SECTION 4.06. Litigation and Environmental Matters.........................55
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SECTION 4.07. Compliance with Laws and Contractual Obligations.............56
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SECTION 4.08. Investment Company Act Status................................56
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SECTION 4.09. Taxes........................................................56
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SECTION 4.10. ERISA........................................................56
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SECTION 4.11. Disclosure...................................................56
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SECTION 4.12. Use of Credit................................................57
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SECTION 4.13. Labor Matters................................................57
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SECTION 4.15. Indebtedness.................................................57
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SECTION 4.16. Liens 57
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SECTION 4.17. Subsidiaries.................................................57
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ARTICLE V................................................................58
CONDITIONS...............................................................58
SECTION 5.01. Conditions to Effective Date.................................58
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SECTION 5.02. Each Credit Event............................................60
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ARTICLE VI...............................................................60
AFFIRMATIVE COVENANTS....................................................60
SECTION 6.01. Financial Statements and Other Information...................60
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SECTION 6.02. Notices of Material Events...................................62
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SECTION 6.03. Existence; Conduct of Business...............................62
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SECTION 6.04. Payment of Taxes and Other Obligations.......................62
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SECTION 6.05. Maintenance of Properties....................................63
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SECTION 6.06. Maintenance of Insurance.....................................63
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SECTION 6.07. Books and Records............................................63
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SECTION 6.08. Inspection Rights............................................63
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SECTION 6.09. Compliance with Laws and Contractual Obligations.............63
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SECTION 6.10. Use of Proceeds and Letters of Credit........................63
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SECTION 6.11. Additional Subsidiary Guarantors; Further Assurances.........63
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ARTICLE VII..............................................................64
NEGATIVE COVENANTS.......................................................64
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SECTION 7.01. Indebtedness.................................................64
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SECTION 7.02. Liens........................................................65
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SECTION 7.03. Mergers, Consolidations, Etc.................................66
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SECTION 7.04. Dispositions.................................................67
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SECTION 7.05. Lines of Business............................................67
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SECTION 7.06. Investments and Acquisitions.................................68
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SECTION 7.07. Restricted Payments..........................................69
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SECTION 7.08. Transactions with Affiliates.................................69
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SECTION 7.09. Restrictive Agreements.......................................70
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SECTION 7.10. Swap Agreements..............................................70
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SECTION 7.11. Financial Covenants..........................................71
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SECTION 7.12. Sale-Leasebacks..............................................71
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SECTION 7.13. Modifications of Organizational Documents....................71
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ARTICLE VIII.............................................................71
EVENTS OF DEFAULT........................................................71
ARTICLE IX...............................................................74
THE ADMINISTRATIVE AGENT.................................................74
ARTICLE X................................................................76
MISCELLANEOUS............................................................76
SECTION 10.01. Notices.....................................................76
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SECTION 10.02. Waivers; Amendments.........................................76
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SECTION 10.03. Expenses; Indemnity; Damage Waiver..........................78
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SECTION 10.04. Successors and Assigns......................................79
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SECTION 10.05. Survival....................................................82
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SECTION 10.06. Counterparts; Integration; Effectiveness....................82
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SECTION 10.07. Severability................................................83
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SECTION 10.08. Right of Setoff.............................................83
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SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process..83
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SECTION 10.10. WAIVER OF JURY TRIAL........................................84
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SECTION 10.11. Headings....................................................84
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SECTION 10.12. Confidentiality.............................................84
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SECTION 10.13. USA PATRIOT Act.............................................85
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SECTION 10.14. Authorization of Company....................................86
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SCHEDULE 1.01 - Commitments
SCHEDULE 4.06(a) - Litigation
SCHEDULE 4.06(b) - Environmental Matters
SCHEDULE 4.17 - Subsidiaries
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SCHEDULE 7.01 - Existing Indebtedness
SCHEDULE 7.02 - Existing Liens
SCHEDULE 7.06 - Existing Investments
SCHEDULE 7.09 - Restrictive Agreements
SCHEDULE 10.01 - Addresses for Notices
EXHIBIT A - Form of Assignment and Assumption
EXHIBIT B-1 - Form of Revolving Credit Note
EXHIBIT B-2 - Form of [A][A-1]Term Loan Note
EXHIBIT B-3 - Form of Swingline Loan Note
EXHIBIT C - Form of Amended and Restated Security Agreement
EXHIBIT D - Form of Subsidiary Joinder Agreement
EXHIBIT E-1 - Form of Subsidiary Borrower Designation Letter
EXHIBIT E-2 - Form of Termination Letter
EXHIBIT F - Form of Opinion of Counsel to the Loan Parties
EXHIBIT G - Form of Opinion of Special New York Counsel to JPMCB
EXHIBIT H - Form of U.S. Tax Compliance Certificate
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 28, 2008 (this
"Agreement"), among ▇-▇▇▇-▇▇▇▇▇▇▇.▇▇▇, INC., the SUBSIDIARY BORROWERS party
hereto, the GUARANTORS party hereto, the LENDERS party hereto, and JPMORGAN
CHASE BANK, N.A., as Administrative Agent.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company (as hereinafter defined) entered into that certain
Credit Agreement, dated as of May 1, 2006 (as amended, the "Existing Credit
Agreement"), among the Company, the several lenders party thereto (the "Existing
Lenders") and JPMorgan Chase Bank, N.A., as administrative agent, pursuant to
which the Existing Lenders made available a senior secured credit facility in
the initial aggregate principal amount of $135,000,000;
WHEREAS, the Company has requested that the Existing Lenders agree to amend
and restate the Existing Credit Agreement to, among other things, provide for
(x) an additional tranche of terms loans in the amount of $60,000,000 (the "A-1
Term Loans") and (y) an increase to the Revolving Credit Commitment (as
hereinafter defined) in the amount of $90,000,000, to be used for working
capital and other general corporate purposes (including, without limitation, the
consummation of any Acquisitions permitted under this Agreement) of the Company
and its Subsidiaries; and
WHEREAS, the parties to the Existing Credit Agreement wish to amend and
restate the Existing Credit Agreement in its entirety upon the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein set forth, the parties hereto agree that the Existing Credit Agreement is
hereby amended and restated as of the Effective Date (as hereinafter defined) to
read in its entirety as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"A Term Loans" means the term loans made by the Lenders to the Company
pursuant to Section 2.01(b) of the Existing Credit Agreement. The outstanding
aggregate amount of A Term Loans is $68,000,000 as of the Effective Date.
"A Term Loan Commitment" means, with respect to each A Term Loan Lender,
the commitment, if any, of such A Term Loan Lender to make an A Term Loan on the
Closing Date pursuant to the Existing Credit Agreement (which commitment was
funded on the Closing Date).
"A Term Loan Lender" means a Lender with an outstanding A Term Loan.
"A Term Loan Maturity Date" means May 1, 2012.
"A-1 Term Loans" means the term loans made by the Lenders to the Company
pursuant to Section 2.01(c).
"A-1 Term Loan Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make an A-1 Term Loan hereunder on the
Effective Date in the amount of such Lender's A-1 Term Loan Commitment as set
forth on Schedule 1.01 under the caption "A-1 Term Loan Commitment", or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
A-1 Term Loan Commitment, as applicable. The aggregate amount of the Lenders'
A-1 Term Loan Commitments is $60,000,000 as of the Effective Date.
"A-1 Term Loan Lender" means a Lender with an A-1 Term Loan Commitment or,
following the Effective Date, an outstanding A-1 Term Loan.
"A-1 Term Loan Maturity Date" means August 28, 2013.
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Acquisition" mean the acquisition by the Company or any other Loan Party
of (a) Capital Stock of any other Person if, after giving effect thereto, (i) at
least 80% of the Capital Stock of such other Person is owned by the Company or
any other Loan Party, (ii) such other Person is consolidated with the Company in
accordance with GAAP and (iii) such other Person is a Subsidiary Guarantor, (b)
all or substantially all of the assets of any other Person or (c) assets
constituting one or more business units of any other Person.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMCB, in its capacity as administrative agent
for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 0.50%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
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"Applicable Percentage" means (a) with respect to any Revolving Credit
Lender for purposes of Sections 2.04 or 2.05 or in respect of any indemnity
claim under Section 10.03(c) arising out of an action or omission of the
Swingline Lender or any Issuing Lender under this Agreement, the percentage of
the total Revolving Credit Commitments represented by such Revolving Credit
Lender's Revolving Credit Commitment, and (b) with respect to any Lender in
respect of any indemnity claim under Section 10.03(c) arising out of an action
or omission of the Administrative Agent under this Agreement, the percentage of
the total Commitments or Loans of all Classes hereunder represented by the
aggregate amount of such Lender's Commitments or Loans of all Classes hereunder.
With respect to the Revolving Credit Lenders, if the Revolving Credit
Commitments have terminated or expired, the Applicable Percentages shall be
determined on the basis of the percentage of the total Revolving Credit
Exposures represented by such Revolving Credit Lender's Revolving Credit
Exposure.
"Applicable Rate" means, for any day, with respect to any ABR Loan or
Eurodollar Loan, or with respect to the commitment fees payable hereunder, as
the case may be, the applicable rate per annum set forth below under the caption
"ABR Spread", "Eurodollar Spread" or "Commitment Fee Rate", respectively, based
upon the Consolidated Leverage Ratio as of the most recent determination date
provided that from the Effective Date until the delivery of the Company's
consolidated financial statements for the fiscal quarter ending on or nearest to
December 31, 2008, the "Applicable Rate" shall be the applicable rate per annum
set forth below in Category 3:
============================ ================ ===================== ================== ================== ==================
Consolidated Leverage ABR Spread for Eurodollar Spread ABR Spread for Eurodollar Commitment Fee
Ratio: A Term Loans for A Terms Loans A-1 Term Loans Spread for A-1 Rate
and Revolving and Revolving Terms Loans
Credit Loans Credit Loans
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Category 1
1.50% 2.50% 2.00% 3.00% 0.50%
Greater than or equal to
3.00:1.00
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Category 2 1.25% 2.25% 1.75% 2.75% 0.45%
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Greater than or equal to
2.50:1.00 but less than
3.00:1.00
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Category 3 1.00% 2.00% 1.50% 2.50% 0.40%
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Greater than or equal to
2.00:1.00 but less than
2.50:1.00
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Category 4 0.75% 1.75% 1.25% 2.25% 0.35%
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Greater than or equal to
1.50:1.00 but less than
2.00:1.00
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Category 5 0.50% 1.50% 1.00% 2.00% 0.30%
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Less than 1.50:1.00
============================ ================ ===================== ================== ================== ==================
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For purposes of the foregoing, (i) the Consolidated Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Company based upon the
Company's consolidated financial statements delivered pursuant to Section
6.01(a) or (b) (and the related compliance certificate delivered pursuant to
Section 6.01(c)) and (ii) each change in the Applicable Rate resulting from a
change in the Consolidated Leverage Ratio shall be effective during the period
commencing on and including the date three Business Days after delivery to the
Administrative Agent of such consolidated financial statements and compliance
certificate indicating such change and ending on the date immediately preceding
the effective date of the next such change; provided that the Consolidated
Leverage Ratio shall be deemed to be in Category 1 (A) at any time that an Event
of Default has occurred and is continuing or (B) if the Company fails to deliver
the consolidated financial statements (and related compliance certificate)
required to be delivered by it pursuant to Section 6.01(a), (b) and/or (c),
during the period from the expiration of the time for delivery thereof specified
in such sections until such financial statements and compliance certificate are
delivered.
"Approved Fund" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
"Asset Sale" means any Disposition of property or series of related
Dispositions of property (excluding any such Disposition permitted by clauses
(a), (b), (c), (d) and (e) of Section 7.04) which yields gross proceeds to the
Company or any of its Subsidiaries (valued at the initial principal amount
thereof in the case of non-cash proceeds consisting of notes or other debt
securities and valued at fair market value in the case of other non-cash
proceeds) in excess of $500,000.
"Assignment and Assumption" means an assignment and assumption entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form approved by the Administrative Agent.
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"Assuming Revolving Credit Lender" has the meaning set forth in Section
2.08(c).
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means the Company or any Subsidiary Borrower, as applicable.
"Borrower Guaranteed Obligations" has the meaning set forth in Section
3.01(b).
"Borrower Obligations" means, with respect to any Borrower, all of the
Obligations of such Borrower.
"Borrowing" means (a) all ABR Loans (other than Swingline Loans) of the
same Class made, converted or continued on the same date, (b) all Eurodollar
Loans of the same Class that have the same Interest Period or (c) a Swingline
Loan.
"Borrowing Request" means a request by a Borrower for a Borrowing in
accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capital Expenditures" means, for any period, expenditures (including the
aggregate amount of Capital Lease Obligations incurred during such period) made
by the Company or any of its Subsidiaries to acquire or construct fixed assets,
plant and equipment (including renewals, improvements and replacements, but
excluding repairs) during such period computed in accordance with GAAP.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalent" means:
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(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
▇▇▇▇▇'▇;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) of this
definition and entered into with a financial institution satisfying the
criteria described in clause (c) of this definition; and
(e) money market funds that (i) comply with the criteria set
forth in SEC Rule 2a-7 under the Investment Company Act of 1940, (ii)
are rated AAA by S&P and Aaa by ▇▇▇▇▇'▇ and (iii) have portfolio assets
of at least $5,000,000,000.
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Exchange Act and the rules of the SEC thereunder as in effect on
the date hereof) (other than ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and their
respective descendants and/or trusts for their benefit and any other Person
Controlled by any of the foregoing (collectively, the "▇▇▇▇▇▇ Group")), of
shares representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding Capital Stock of the Company; or (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Company by Persons who were neither (i) nominated by the board
of directors of the Company nor (ii) appointed by directors so nominated or (c)
the ▇▇▇▇▇▇ Group (as defined above) shall cease to own a majority of the
aggregate ordinary voting power represented by the issued and outstanding
Capital Stock of the Company.
"Change in Law" means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by any Lender or any Issuing Lender
(or, for purposes of Section 2.14(b), by any lending office of such Lender or by
such Lender's or such Issuing Lender's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Credit Loans, A
Term Loans, A-1 Term Loans or Swingline Loans and, when used in reference to any
Commitment, refers to whether such Commitment is a Revolving Credit Commitment
or A-1 Term Loan Commitment.
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"Cleanup Period" has the meaning set forth in Section 2.10(c).
"Closing Date" means May 1, 2006.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means a Revolving Credit Commitment, an A-1 Term Loan
Commitment or any combination thereof (as the context requires).
"Company" means ▇-▇▇▇-▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation.
"Consolidated EBITDA" means, for any period, Consolidated Net Income for
such period plus, without duplication and to the extent reflected as a charge in
the statement of such Consolidated Net Income for such period, the sum of (a)
income tax expense, (b) Consolidated Interest Expense, amortization or writeoff
of debt discount and debt issuance costs and commissions, discounts and other
fees and charges associated with Indebtedness (including the Loans), (c)
depreciation and amortization expense, (d) amortization of intangibles
(including, but not limited to, goodwill) and organization costs, (e) any
extraordinary, unusual or non-recurring non-cash expenses or losses (including,
whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, non-cash losses on sales of assets
outside of the ordinary course of business), (f) any non-cash stock-based
compensation expense relating to stock options and restricted stock granted to
employees or directors and (g) any non-cash charges resulting from writeoffs or
write-downs of inventory during such period directly or indirectly attributable
to Acquisitions permitted under this Agreement, and minus, (a) to the extent
included in the statement of such Consolidated Net Income for such period, the
sum of (i) any extraordinary, unusual or non-recurring income or gains
(including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, gains on the sales of
assets outside of the ordinary course of business) and (ii) any other non-cash
income and (b) any cash payments made during such period in respect of items
described in clause (e) above subsequent to the fiscal quarter in which the
relevant non-cash expenses or losses were reflected as a charge in the statement
of Consolidated Net Income, all as determined on a consolidated basis. For the
purposes of calculating Consolidated EBITDA for any period of four consecutive
fiscal quarters (each, a "Reference Period") pursuant to any determination of
the Consolidated Leverage Ratio, (x) if at any time during such Reference Period
the Company or any Subsidiary shall have made any Material Disposition, the
Consolidated EBITDA for such Reference Period shall be reduced by an amount
equal to the Consolidated EBITDA (if positive) attributable to the property that
is the subject of such Material Disposition for such Reference Period or
increased by an amount equal to the Consolidated EBITDA (if negative)
attributable thereto for such Reference Period and (y) if during such Reference
Period the Company or any Subsidiary shall have made an Acquisition,
Consolidated EBITDA for such Reference Period shall be calculated after giving
pro forma effect thereto as if such Acquisition occurred on the first day of
such Reference Period. As used in this definition, "Material Disposition" means
any Disposition of property or series of related Dispositions of property that
yields gross proceeds to the Company or any of its Subsidiaries in excess of
$5,000,000.
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"Consolidated Fixed Charge Coverage Ratio" means, at any date, the ratio of
(a) Consolidated EBITDA for the period of four consecutive fiscal quarters of
the Company ended on or most recently ended prior to such date, plus, without
duplication and to the extent reflected as a charge in the statement of
Consolidated Net Income for such period, Consolidated Lease Expenses for such
period, minus Capital Expenditures for such period (other than to the extent
such Capital Expenditures are financed with Indebtedness other than with the
Loans) to (b) the sum of (i) Consolidated Interest Expense for such period plus
(ii) Consolidated Lease Expenses for such period plus (iii) Restricted Payments
made under Section 7.07(c) during such period plus (iv) all regularly scheduled
payments of principal of Indebtedness for such period.
"Consolidated Funded Debt" means, at any date, all Indebtedness of the
Company and its Subsidiaries that matures more than one year from the date of
its creation or matures within one year from such date but is renewable or
extendible, at the option of such Person, to a date more than one year from such
date or arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year from
such date, including all current maturities and current sinking fund payments in
respect of such Indebtedness whether or not required to be paid within one year
from the date of its creation and, in the case of the Borrowers, Indebtedness in
respect of the Loans, determined on a consolidated basis in accordance with
GAAP.
"Consolidated Interest Expense" means, for any period, total interest
expense (including that attributable to Capital Lease Obligations) of the
Company and its Subsidiaries for such period with respect to all outstanding
Indebtedness of the Company and its Subsidiaries (including all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and net costs under Swap Agreements in respect of
interest rates to the extent such net costs are allocable to such period in
accordance with GAAP), minus interest income of the Company and its Subsidiaries
for such period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Lease Expenses" means, for any period, the aggregate amount
of fixed and contingent rentals payable by the Company or any Subsidiary for
such period with respect to operating leases of real and personal property,
minus the aggregate amount of cash rentals received by the Company or any
Subsidiary in respect of subleases of any such property for such period,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Leverage Ratio" means, at any date, the ratio of (a) the
aggregate principal amount of all Consolidated Funded Debt on such date to (b)
Consolidated EBITDA for the period of four consecutive fiscal quarters of the
Company ended on or most recently ended prior to such date.
"Consolidated Net Income" means, for any period, the consolidated net
income (or loss) of the Company and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or loss) of any Person (other than a Subsidiary of the
Company) in which the Company or any of its Subsidiaries has an ownership
interest, except to the extent that any such income is actually received by the
Company or such Subsidiary in the form of dividends or similar distributions and
(b) the undistributed earnings of any Subsidiary of the Company (other than a
Loan Party) to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary is not at the time permitted by the
terms of any Contractual Obligation (other than under any Loan Document) or
Requirement of Law applicable to such Subsidiary.
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"Consolidated Net Worth" means, at any date, the sum of (a) all amounts
that would, in conformity with GAAP, be included on a consolidated balance sheet
of the Company and its Subsidiaries under stockholders' equity at such date plus
(b) (without duplication) the liquidation value of all preferred Capital Stock
of the Company (other than such preferred stock that is mandatorily redeemable
on or prior to the date that is six months after the A-1 Term Loan Maturity
Date).
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"DesignPac Acquisition" means the acquisition of the membership interests
of DesignPac Gifts LLC, an Illinois limited liability company, pursuant to the
Interest Purchase Agreement, dated as of April 30, 2008, by and among DPAC
Holdings Inc., a Delaware corporation, DesignPac Gifts LLC, the Company and the
founders named therein.
"Disclosed Matters" means the actions, suits and proceedings disclosed in
Schedule 4.06(a) and the environmental matters disclosed in Schedule 4.06(b).
"Disposition" means, with respect to any property, any sale, lease, sale
and leaseback, assignment, conveyance, transfer or other disposition thereof
(excluding the sale by the Company of its own Capital Stock).
"Dollars" or "$" refers to lawful money of the United States of America.
"Domestic Subsidiary" means any Subsidiary of the Company organized or
incorporated under the laws of any jurisdiction within the United States of
America.
"Effective Date" means the date (which shall be a Business Day not later
than September 30, 2008) on which the conditions specified in Section 5.01 are
satisfied (or waived in accordance with Section 10.02).
"Environmental Laws" means all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating to pollution
or protection of the environment and public health (to the extent relating to
exposure to Hazardous Material), preservation or reclamation of natural
resources, including those relating to the management, release or threatened
release of any Hazardous Material.
-9-
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company or any Subsidiary arising under any
Environmental Law and resulting from (a) violation of any Environmental Law, (b)
the generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the environment or
(e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.
"Equity Issuance" means (a) any issuance or sale by the Company or any of
its Subsidiaries after the date hereof of (i) any of its Capital Stock, (ii) any
warrants or options exercisable in respect of its Capital Stock (other than any
warrants or options issued to directors, officers, employees or consultants of
the Company or any of its Subsidiaries pursuant to benefit plans established in
the ordinary course of business and any Capital Stock of the Company issued upon
the exercise of such warrants or options) or (iii) any other security or
instrument representing an equity interest (or the right to obtain any equity
interest) in the Company or any of its Subsidiaries or (b) the receipt by the
Company or any of its Subsidiaries after the date hereof of any capital
contribution (whether or not evidenced by any equity security issued by the
recipient of such contribution); provided that Equity Issuance shall not include
(x) any such issuance or sale by any Subsidiary of the Company to the Company or
any Subsidiary of the Company or (y) any capital contribution by the Company or
any Subsidiary of the Company to any Subsidiary of the Company.
"Equity Rights" means, with respect to any Person, any subscriptions,
options, warrants, commitments, preemptive rights or agreements of any kind
(including any shareholders' or voting trust agreements) for the issuance, sale,
registration or voting of, or securities convertible into, any additional shares
of Capital Stock of any class or type of such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that, together with any Borrower, is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414(m) of
the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Pension Plan
(other than an event for which the 30-day notice period is waived); (b) with
respect to plan years prior to 2008, the existence with respect to any Plan of
an "accumulated funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (c) any failure by any Pension
Plan to satisfy the minimum funding standards (within the meaning of Sections
412 or 430 of the Code or Section 302 of ERISA) applicable to such Pension Plan,
whether or not waived; (d) the filing pursuant to Section 412 of the Code or
Section 302(c) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Pension Plan, or the failure to make by its due
date a required installment under Section 430(j) of the Code with respect to any
Pension Plan; (e) the incurrence by any Borrower or any of their ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Pension Plan; (f) a determination that any Pension Plan is,
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or is expected to be, in "at risk" status (within the meaning of Section 430 of
the Code or Title IV of ERISA); (g) the receipt by any Borrower or any of their
ERISA Affiliates from the PBGC or a plan administrator of any notice relating to
an intention to terminate any Pension Plan or to appoint a trustee to administer
any Pension Plan under Section 4042 of ERISA; (h) the incurrence by any Borrower
or any of their ERISA Affiliates of any liability with respect to the withdrawal
or partial withdrawal from any Pension Plan or Multiemployer Plan; or (i) the
receipt by any Borrower or any of their ERISA Affiliates of any notice from any
plan administrator of any Multiemployer Plan concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent, in reorganization or in endangered or critical status
(within the meaning of Section 432 of the Code or Section 305 or Title IV of
ERISA).
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article VIII.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, any Issuing Lender or any other recipient of any payment to be made by
or on account of any obligation of any Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed on any Lender by the United States of America and (c) in
the case of a Non-U.S. Lender (other than an assignee pursuant to a request by
the Company under Section 2.18(b)), any withholding tax that is imposed on
amounts payable to such Non-U.S. Lender at the time such Non-U.S. Lender becomes
a party to this Agreement (or designates a new lending office) or is
attributable to such Non-U.S. Lender's failure to comply with Section 2.16(e),
except to the extent that such Non-U.S. Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from the applicable Borrower with respect to such
withholding tax pursuant to Section 2.16(a).
"Existing Credit Agreement" has the meaning set forth in the recitals
hereto.
"Existing Lenders" has the meaning set forth in the recitals hereto.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
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"Foreign Lender" means any Lender or Issuing Lender that is not a "US
person" as defined by Section 7701(a)(30) of the Code.
"Foreign Subsidiary" means any Subsidiary of the Company that is not a
Domestic Subsidiary.
"GAAP" means generally accepted accounting principles in the United States
of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Guaranteed Obligations" means, collectively, the Borrower Guaranteed
Obligations and the Subsidiary Borrower Guaranteed Obligations.
"Guarantors" means the Company and the Subsidiary Guarantors, in each case
with respect to its respective Guaranteed Obligations.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Increasing Revolving Credit Lender" has the meaning set forth in Section
2.08(c).
"Increasing Term Loan Lender" has the meaning set forth in Section 2.08(d).
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"Incremental Term Loan" has the meaning set forth in Section 2.08(d).
"Incremental Term Loan Effective Date" has the meaning set forth in Section
2.08(d).
"Incremental Term Loan Lender" has the meaning set forth in Section
2.08(d).
"Incremental Term Loan Supplement" has the meaning set forth in Section
2.08(d).
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (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
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty, (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances and
(k) the liquidation value of all preferred Capital Stock of such Person that is
mandatorily redeemable on or prior to the date that is six months after the A-1
Term Loan Maturity Date. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Election Request" means a request by a Borrower to convert or
continue a Borrowing in accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan (other than
a Swingline Loan), each Quarterly Date, (b) with respect to any Eurodollar Loan,
the last day of the Interest Period applicable thereto and, in the case of any
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three-months' duration
after the first day of such Interest Period and (c) with respect to any
Swingline Loan, the day that such Loan is required to be repaid.
"Interest Period" means, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months or
(if agreed to by all the Lenders of the applicable Class of Loans) nine or
twelve months thereafter, as the applicable Borrower may elect; provided that
(i) if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
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such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day and
(ii) any Interest Period that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made
and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing, and the date of a Borrowing comprising Loans of
any Class that have been converted or continued shall be the effective date of
the most recent conversion or continuation of such Borrowing.
"Investment" means, by any Person, (a) the amount paid or committed to be
paid, or the value of property or services contributed or committed to be
contributed, by such Person for or in connection with the acquisition by such
Person of any stock, bonds, notes, debentures, partnership or other ownership
interests or other securities of any other Person and (b) the amount of any
advance, loan or extension of credit by such Person, to any other Person, or
guaranty or other similar obligation of such Person with respect to any
Indebtedness of such other Person (other than Indebtedness constituting trade
payables in the ordinary course of business), and (without duplication) any
amount committed to be advanced, loaned, or extended by such Person to any other
Person, or any amount the payment of which is committed to be assured by a
guaranty or similar obligation by such Person for the benefit of, such other
Person.
"Issuing Lender" means each of JPMCB and Wachovia Bank, National
Association, each in its capacity as the issuer of Letters of Credit hereunder,
and in each case its successors in such capacity as provided in Section 2.05(j).
Each Issuing Lender may, in its discretion, arrange for one or more Letters of
Credit to be issued by Affiliates of such Issuing Lender, in which case the term
"Issuing Lender" shall include any such Affiliate with respect to Letters of
Credit issued by such Affiliate.
"JPMCB" means JPMorgan Chase Bank, N.A.
"LC Disbursement" means a payment made by an Issuing Lender pursuant to a
Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrowers at such time. The LC Exposure of any Revolving Credit Lender at
any time shall be its Applicable Percentage of the total LC Exposures at such
time.
"Lenders" means the Persons listed on Schedule 1.01 and any other Person
that shall have become a party hereto pursuant to an Assignment and Assumption
or an instrument entered into pursuant to Section 2.08(c), other than any such
Person that ceases to be a party hereto pursuant to an Assignment and
Assumption. Unless the context otherwise requires, the term "Lenders" includes
the Swingline Lender.
"Letter of Credit" means any standby or commercial letter of credit issued
pursuant to this Agreement.
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"Letter of Credit Documents" means, with respect to any Letter of Credit,
collectively, any application therefor and any other agreements, instruments,
guarantees or other documents (whether general in application or applicable only
to such Letter of Credit) governing or providing for (a) the rights and
obligations of the parties concerned or at risk with respect to such Letter of
Credit or (b) any collateral security for any of such obligations, each as the
same may be modified and supplemented and in effect from time to time.
"Letter of Credit Sublimit Amount" means $25,000,000.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on the Reuters Screen LIBOR 01 Page (or on
any successor or substitute page of such service, or any successor to or
substitute for such service, providing rate quotations comparable to those
currently provided on such page of such service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"Loan Documents" means, collectively, this Agreement, the Letter of Credit
Documents, the promissory notes (if any) executed and delivered pursuant to
Section 2.09(g) and the Security Documents.
"Loan Parties" means the Borrowers and the Guarantors.
"Loans" means the loans made by the Lenders to any or all the Borrowers
pursuant to this Agreement.
"Margin Stock" means "margin stock" within the meaning of Regulations T, U
and X of the Board.
"Material Adverse Effect" means a material adverse effect on (a) the
business, property, operation or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole, or (b) the ability of the Loan
Parties to perform their respective obligations hereunder and under the other
Loan Documents or (c) the validity or enforceability of this Agreement or any
other Loan Document or the rights or remedies of the Administrative Agent and
the Lenders hereunder or thereunder.
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"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Swap Agreements, of
any one or more of the Company and its Subsidiaries in an aggregate outstanding
principal amount exceeding $7,500,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of the Company or any
Subsidiary in respect of any Swap Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that the Company or
any Subsidiary would be required to pay if such Swap Agreement were terminated
at such time.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Napco Acquisition" means the acquisition of the assets of Napco Marketing
Corp, a Florida corporation, pursuant to the Asset Purchase Agreement, dated as
of July 21, 2008, by and among the Company, Napco Marketing Corp., a Delaware
corporation and Napco Marketing Corp, a Florida corporation.
"Net Cash Proceeds" means (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents
(including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or the sale or disposition of any non-cash consideration or
otherwise, but only as and when received and excluding the portion of such
deferred payment constituting interest) of such Asset Sale or Recovery Event,
net of attorneys' fees, accountants' fees, investment banking fees, amounts
required to be applied to the repayment of Indebtedness secured by a Lien
expressly permitted hereunder on any asset which is the subject of such Asset
Sale or Recovery Event (other than any Lien pursuant to a Security Document) and
other customary costs, fees and expenses actually incurred in connection
therewith and net of taxes paid or reasonably estimated to be payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements) and net of amounts deposited in
escrow in connection therewith or reasonably expected to be paid as a result of
any purchase price adjustment, indemnities or reserves related thereto (such
amounts shall be Net Cash Proceeds to the extent and at the time released or not
required to be so used) and (b) in connection with any issuance or sale of
equity securities or debt securities or instruments or the incurrence of loans
or capital contribution, the cash proceeds received from such issuance,
incurrence or capital contribution, net of attorneys' fees, investment banking
fees, accountants' fees, underwriting discounts and commissions and other
customary fees and expenses actually incurred in connection therewith.
"Non-U.S. Lender" means any Lender that is organized under the laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia.
"Obligations" means, collectively, (a) all of the Indebtedness, liabilities
and obligations of any Loan Party to the Administrative Agent, the Lenders, the
Swingline Lender and/or the Issuing Lenders arising under the Loan Documents
(including all reimbursement obligations in respect of Letters of Credit), in
each case whether fixed, contingent (including without limitation those
-16-
Obligations incurred as a Guarantor pursuant to Article III), now existing or
hereafter arising, created, assumed, incurred or acquired, and whether before or
after the occurrence of any Event of Default under clause (h) or (i) of Article
VIII and including any obligation or liability in respect of any breach of any
representation or warranty and all post-petition interest and funding losses,
whether or not allowed as a claim in any proceeding arising in connection with
such an event, (b) all obligations of any Loan Party owing to any Lender or any
Affiliate of any Lender under any treasury management services agreement, any
service terms or any service agreements, including electronic payments service
terms and/or automated clearing house agreements, and all overdrafts on any
account which any Loan Party maintains with any Lender or any Affiliate of any
Lender and (c) all obligations of any Loan Party owing to any Lender or any
Affiliate of any Lender under (i) interest rate swap agreements (whether from
fixed to floating or from floating to fixed), interest rate cap agreements and
interest rate collar agreements, (ii) other agreements or arrangements designed
to manage interest rates or interest rate risk and (iii) other agreements or
arrangements designed to protect such Person against fluctuations in currency
exchange rates or commodity prices. The term `Obligations" shall include
Borrower Obligations and Subsidiary Borrower Obligations.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under this Agreement or any other Loan Document or from
the execution, delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Loan Document.
"Participant" has the meaning set forth in Section 10.04(c).
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Pension Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which any Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Permitted Liens" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 6.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's and
other like Liens imposed by law, arising in the ordinary course of business
and securing obligations that are not overdue by more than 30 days or are
being contested in compliance with Section 6.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
-17-
(d) deposits to secure the performance of bids, trade contracts, leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature, in each case in the ordinary course of
business;
(e) judgment liens in respect of judgments that do not constitute an Event
of Default under clause (k) of Article VIII; and
(f) easements, zoning restrictions, rights-of-way and similar encumbrances
on real property imposed by law or arising in the ordinary course of
business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the
ordinary conduct of business of the Company or any Subsidiary;
provided that the term "Permitted Liens" shall not include any Lien securing
Indebtedness.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by JPMCB as its prime rate in effect at its principal office in New
York City; each change in the Prime Rate shall be effective from and including
the date such change is publicly announced as being effective.
"Principal Payment Dates" means (a) the Quarterly Dates of each year,
commencing with the Quarterly Date falling on or nearest to September 30, 2008,
in the case of A Term Loans, and December 31, 2008, in the case of A-1 Term
Loans, and (b) the A Term Loan Maturity Date, in the case of A Term Loans, and
the A-1 Term Loan Maturity Date, in the case of A-1 Term Loans.
"Pro Forma Financial Statements" has the meaning set forth in Section
5.01(h).
"Quarterly Dates" means the last Business Day of September, December, March
and June in each year, the first of which shall be the first such day after the
date hereof.
"Recovery Event" means any settlement of or payment in respect of any
property or casualty insurance claim (but not to the extent such claim
compensates for any loss of revenues or interruption of business or operations
caused thereby) or any condemnation proceeding relating to any asset of the
Company or any of its Subsidiaries with a value in excess of $500,000.
"Register" has the meaning set forth in Section 10.04.
"Reinvestment Deferred Amount" means, with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by the Company or any of its
Subsidiaries in connection therewith which are not applied to prepay the Term
Loans pursuant to Section 2.10(b)(iii) as a result of the delivery of a
Reinvestment Notice.
"Reinvestment Event" means any Asset Sale or Recovery Event in respect of
which the Company has delivered a Reinvestment Notice.
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"Reinvestment Notice" means a written notice executed by a Responsible
Officer stating that no Default has occurred and is continuing and that the
Company or any Subsidiary intends and expects to use all or a specified portion
of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire assets
useful in its business.
"Reinvestment Prepayment Amount" means, with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to the relevant Reinvestment Prepayment Date to acquire assets
useful in the Company's or any Subsidiary's business.
"Reinvestment Prepayment Date" means, with respect to any Reinvestment
Event, the earlier of (a) the date occurring twelve months after such
Reinvestment Event (or in the case of any Reinvestment Event arising out of a
casualty insurance claim where the Company or any of its Subsidiaries is
rebuilding or restoring the property subject to such casualty, the date
occurring twelve months after such Reinvestment Event) and (b) the date on which
the Company shall have determined not to, or shall have otherwise ceased to,
acquire assets useful in the Company's or any Subsidiary's business with all or
any portion of the relevant Reinvestment Deferred Amount.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures, outstanding Term Loans and unused Commitments representing more than
50% of the sum of the total Revolving Credit Exposures, outstanding Term Loans
and unused Revolving Credit Commitments at such time. The "Required Lenders" of
a particular Class of Loans means Lenders having Revolving Credit Exposures,
outstanding Term Loans and/or unused Commitments of such Class, as applicable,
representing more than 50% of the total Revolving Credit Exposures, outstanding
Term Loans and/or unused Commitments of such Class, as applicable, at such time.
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer" means the chief executive officer, president or chief
financial officer of the Company, but in any event, with respect to financial
matters, the chief financial officer of the Company.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any Capital Stock of the
Company or any of its Subsidiaries, or any payment (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or termination
of any such Capital Stock of the Company or any option, warrant or other right
to acquire any such Capital Stock of the Company.
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"Revolving Credit", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans constituting such Borrowing, are made
pursuant to Section 2.01(a).
"Revolving Credit Availability Period" means the period from and including
the Effective Date to but excluding the earlier of the Revolving Credit
Commitment Termination Date and the date of termination of the Revolving Credit
Commitments.
"Revolving Credit Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Credit Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum aggregate amount of such Lender's Revolving
Credit Exposure hereunder, as such commitment may be (a) reduced or increased
from time to time pursuant to Section 2.08 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
10.04. The initial amount of each Lender's Revolving Credit Commitment is set
forth on Schedule 1.01 under the caption "Revolving Credit Commitment", or in
the Assignment and Acceptance or other instrument pursuant to which such Lender
shall have assumed its Revolving Credit Commitment, as applicable. The initial
aggregate amount of the Revolving Credit Commitments is $165,000,000.
"Revolving Credit Commitment Increase" has the meaning set forth in Section
2.08(c).
"Revolving Credit Commitment Increase Date" has the meaning set forth in
Section 2.08(c).
"Revolving Credit Commitment Termination Date" means April 29, 2011.
"Revolving Credit Exposure" means, with respect to any Revolving Credit
Lender at any time, the sum of (a) the outstanding principal amount of such
Lender's Revolving Credit Loans, (b) the LC Exposure of such Lender and (c) the
Swingline Exposure of such Lender at such time.
"Revolving Credit Lender" means a Lender with a Revolving Credit Commitment
or, if the Revolving Credit Commitments have terminated or expired, a Lender
with Revolving Credit Exposure.
"Revolving Credit Loans" means the loans made by the Lenders to the
Borrowers pursuant to Section 2.01(a).
"S&P" means Standard & Poor's Ratings Services.
"SEC" means the Securities and Exchange Commission, or any regulatory body
that succeeds to the functions thereof.
"Security Agreement" means an Amended and Restated Security Agreement
substantially in the form of Exhibit C between the Loan Parties and the
Administrative Agent.
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"Security Documents" means, collectively, the Security Agreement, each
Subsidiary Joinder Agreement, any security or similar agreement entered into
pursuant to Section 6.11 in favor of the Administrative Agent, and all Uniform
Commercial Code financing statements required by the terms of any such agreement
to be filed with respect to the security interests created pursuant thereto.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"Subsidiary" means, with respect to any Person (the "parent") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent. Unless otherwise specified,
"Subsidiary" means a Subsidiary of the Company.
"Subsidiary Borrower" means (a) each Domestic Subsidiary of the Company (if
any) that is listed under the caption "Subsidiary Borrowers" on the signature
pages hereof and (b) each other Domestic Subsidiary of the Company that shall
become a Subsidiary Borrower pursuant to Section 2.19, in each case so long as
such Subsidiary shall remain a Subsidiary Borrower hereunder.
"Subsidiary Borrower Designation Letter" means the Subsidiary Borrower
Designation Letter entered into by the Company and a wholly-owned Domestic
Subsidiary of the Company pursuant to Section 2.19, pursuant to which such
Subsidiary shall (subject to the terms and conditions of Section 2.19(b)) be
designated as a Subsidiary Borrower, substantially in the form of Exhibit E-1 or
any other form approved by the Administrative Agent.
"Subsidiary Borrower Guaranteed Obligations" has the meaning set forth in
Section 3.01.
"Subsidiary Borrower Obligations" means, with respect to any Subsidiary
Borrower, all of the Obligations of such Subsidiary Borrower.
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"Subsidiary Guarantors" means (a) each Subsidiary of the Company that is
listed under the caption "Subsidiary Guarantors" on the signature pages hereof
and (b) each other Subsidiary of the Company that shall become a Subsidiary
Guarantor pursuant to Section 6.11.
"Subsidiary Joinder Agreement" means a Subsidiary Joinder Assumption
Agreement substantially in the form of Exhibit D executed and delivered by a
Domestic Subsidiary that, pursuant to Section 6.11(a), is required to become a
"Subsidiary Guarantor" hereunder and a "Securing Party" under the Security
Agreement in favor of the Administrative Agent.
"Swap Agreement" means any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of
the Company or any Subsidiary shall be a Swap Agreement.
"Swingline Exposure" means, at any time, the aggregate principal amount of
all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposure at such time.
"Swingline Lender" means JPMCB, in its capacity as lender of Swingline
Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Taxes" means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"Term", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans constituting such Borrowing, are made pursuant to
Section 2.01(b) or 2.01(c).
"Term Loans" means the collective reference to the A Term Loans and the A-1
Term Loans.
"Term Loan Lender" means a Lender with an outstanding A Term Loan or A-1
Term Loan.
"Termination Letter" has the meaning set forth in Section 2.19(c).
"Transactions" means the execution, delivery and performance by each Loan
Party of this Agreement and the other Loan Documents to which such Loan Party is
intended to be a party, the borrowing of Loans hereunder and the use of proceeds
thereof, and the issuance of Letters of Credit hereunder.
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"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.03. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith. To enable the ready
and consistent determination of compliance with the covenants set forth in
Article VII, the Company will not permit the fiscal year of the Company to end
on a day other than July 1 or any other day within one week of July 1.
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments.
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(a) Revolving Credit Loans. Subject to the terms and conditions set forth
herein, each Revolving Credit Lender agrees to make Revolving Credit Loans to
any of the Borrowers from time to time during the Revolving Credit Availability
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Period in an aggregate principal amount that will not result in (i) such
Lender's Revolving Credit Exposure exceeding such Lender's Revolving Credit
Commitment or (ii) the total Revolving Credit Exposures exceeding the total
Revolving Credit Commitments. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrowers may borrow, prepay and
reborrow Revolving Credit Loans.
(b) Term Loans. Each A Term Loan Lender made to the Company on the Closing
Date shall continue to be outstanding under this Agreement and governed by the
terms of this Agreement. Amounts prepaid or repaid in respect of A Term Loans
may not be reborrowed.
(b) A-1 Term Loans. Subject to the terms and conditions set forth herein,
each A-1 Term Loan Lender agrees to make an A-1 Term Loan to the Company on the
Effective Date in a principal amount equal to its A-1 Term Loan Commitment.
Amounts prepaid or repaid in respect of A-1 Term Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings.
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(a) Obligations of Lenders. Each Loan shall be made as part of a Borrowing
by any Borrower consisting of Loans of the same Class and Type made to such
Borrower by the Lenders ratably in accordance with their respective Commitments
of the applicable Class. The failure of any Lender to make any Loan required to
be made by it shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required.
(b) Type of Loans. Subject to Section 2.13, each Borrowing by any Borrower
shall be comprised entirely of ABR Loans or of Eurodollar Loans as such Borrower
may request in accordance herewith. Each Swingline Loan shall be an ABR Loan.
Each Lender at its option may make any Eurodollar Loan by causing any domestic
or foreign branch or Affiliate of such Lender to make such Loan; provided that
any exercise of such option shall not affect the obligation of the applicable
Borrower to repay such Loan in accordance with the terms of this Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. Each Eurodollar
Borrowing shall be in an aggregate amount of $3,000,000 or a larger multiple of
$500,000. Each ABR Borrowing shall be in an aggregate amount equal to $1,000,000
or a larger multiple of $100,000; provided that an ABR Borrowing may be in an
aggregate amount that is equal to the entire unused amount of the total
Revolving Credit Commitment or that is required to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.05(f). Each Swingline Loan shall
be in an amount that is a multiple of $100,000 and not less than $100,000.
Borrowings of more than one Type may be outstanding at the same time; provided
that there shall not at any time be more than a total of six Eurodollar
Borrowings outstanding.
(d) Limitations on Interest Periods. Notwithstanding any other provision of
this Agreement, no Borrower shall be entitled to request (or to elect to convert
to or continue as a Eurodollar Borrowing) (i) any Revolving Credit Eurodollar
Borrowing if the Interest Period requested therefor would end after the
Revolving Credit Commitment Termination Date; (ii) any Term Eurodollar Borrowing
if the Interest Period requested therefor would end after the A Term Loan
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Maturity Date or A-1 Term Loan Maturity Date, as the case may be; or (iii) any
Term Eurodollar Borrowing if the Interest Period requested therefor would
commence before and end after any applicable Principal Payment Date unless,
after giving effect thereto, the aggregate principal amount of the A Term Loans
or A-1 Term Loans, as the case may be, having Interest Periods that end after
such Principal Payment Date shall be equal to or less than the aggregate
principal amount of the Term Loans and A-1 Term Loans, as the case may be,
permitted to be outstanding after giving effect to the applicable payments of
principal required to be made on such Principal Payment Date.
SECTION 2.03. Requests for Borrowings.
-----------------------
(a) Notice by the Borrowers. To request a Borrowing, a Borrower shall
notify the Administrative Agent of such request by telephone (i) in the case of
a Eurodollar Borrowing, not later than 12:00 noon, New York City time, three
Business Days before the date of the proposed Borrowing or (ii) in the case of
an ABR Borrowing, not later than 12:00 noon, New York City time, one Business
Day before the date of the proposed Borrowing; provided that any such notice of
an ABR Borrowing to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(f) may be given not later than 12:00 noon, New York
City time, on the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by such Borrower.
(b) Content of Borrowing Requests. Each telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Credit Borrowing
or Term Borrowing;
(i) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(v) in the case of a Eurodollar Borrowing, the Interest Period therefor,
which shall be a period contemplated by the definition of the term
"Interest Period" and permitted under Section 2.02(d); and
(vi) the location and number of the applicable Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
(c) Notice by the Administrative Agent to the Lenders. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
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(d) Failure to Elect. If no election as to the Type of a Borrowing is
specified, then the requested Borrowing shall be an ABR Borrowing. If no
Interest Period is specified with respect to any requested Eurodollar Borrowing,
the requested Borrowing shall be made instead as an ABR Borrowing.
SECTION 2.04. Swingline Loans.
---------------
(a) Agreement to Make Swingline Loans. Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans to the
Company from time to time during the Revolving Credit Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Loans exceeding
$10,000,000 or (ii) the total Revolving Credit Exposures exceeding the total
Revolving Credit Commitments; provided that the Swingline Lender shall not be
required to make a Swingline Loan to refinance an outstanding Swingline Loan.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Company may borrow, prepay and reborrow Swingline Loans.
(b) Notice of Swingline Loans by Company. To request a Swingline Loan, the
Company shall notify the Administrative Agent of such request by telephone
(confirmed by telecopy), not later than 12:00 noon, New York City time, on the
day of a proposed Swingline Loan. Each such notice shall be irrevocable and
shall specify the requested date (which shall be a Business Day) and amount of
the requested Swingline Loan. The Administrative Agent will promptly advise the
Swingline Lender of any such notice received from the Company. The Swingline
Lender shall make each Swingline Loan available to the Company by means of a
credit to an account of the Company with the Swingline Lender (or, in the case
of a Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(f), by remittance to the applicable Issuing Lender) by
3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) Participations by Lenders in Swingline Loans. The Swingline Lender may
by written notice given to the Administrative Agent not later than 10:00 a.m.,
New York City time, on any Business Day require the Revolving Credit Lenders to
acquire participations on such Business Day in all or a portion of the Swingline
Loans outstanding. Such notice shall specify the aggregate amount of Swingline
Loans in which Revolving Credit Lenders will participate. Promptly upon receipt
of such notice, the Administrative Agent will give notice thereof to each
Revolving Credit Lender, specifying in such notice such Revolving Credit
Lender's Applicable Percentage of such Swingline Loan or Loans. Each Revolving
Credit Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Administrative Agent, for the account of
the Swingline Lender, such Revolving Credit Lender's Applicable Percentage of
such Swingline Loan or Loans. Each Revolving Credit Lender acknowledges and
agrees that its obligation to acquire participations in Swingline Loans pursuant
to this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever. Each
Revolving Credit Lender shall comply with its obligation under this paragraph by
wire transfer of immediately available funds, in the same manner as provided in
Section 2.06 with respect to Loans made by such Revolving Credit Lender (and
Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the
Revolving Credit Lenders), and the Administrative Agent shall promptly pay to
the Swingline Lender the amounts so received by it from the Revolving Credit
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Lenders. The Administrative Agent shall notify the Company of any participations
in any Swingline Loan acquired pursuant to this paragraph, and thereafter
payments in respect of such Swingline Loan shall be made to the Administrative
Agent and not to the Swingline Lender. Any amounts received by the Swingline
Lender from the Company (or other party on behalf of the Company) in respect of
a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale
of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Revolving Credit Lenders that shall
have made their payments pursuant to this paragraph and to the Swingline Lender,
as their interests may appear; provided that any such payment so remitted shall
be repaid to the Swingline Lender or to the Administrative Agent, as applicable,
if and to the extent such payment is required to be refunded to the Company for
any reason. The purchase of participations in a Swingline Loan pursuant to this
paragraph shall not relieve the Company of any default in the payment thereof.
SECTION 2.05. Letters of Credit.
-----------------
(a) General. Subject to the terms and conditions set forth herein, in
addition to the Loans provided for in Section 2.01, any Borrower may request an
Issuing Lender to issue, at any time and from time to time during the Revolving
Credit Availability Period, Letters of Credit denominated in Dollars for such
Borrower's account in such form as is acceptable to such Issuing Lender in its
reasonable determination. Letters of Credit issued hereunder shall constitute
utilization of the Commitments.
(b) Notice of Issuance, Amendment, Renewal or Extension. To request the
issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), a Borrower shall hand deliver or telecopy (or
transmit by electronic communication, if arrangements for doing so have been
approved by the applicable Issuing Lender and the Administrative Agent) to such
Issuing Lender and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting
the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance, amendment,
renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (d) of this
Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by an Issuing Lender,
such Borrower also shall submit a letter of credit application on such Issuing
Lender's standard form in connection with any request for a Letter of Credit. In
the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by such Borrower to, or entered into by
such Borrower with, the applicable Issuing Lender relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.
(c) Limitations on Amounts. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension
of each Letter of Credit the applicable Borrower shall be deemed to represent
and warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the total LC Exposures shall not exceed the Letter of Credit
Sublimit Amount and (ii) the total Revolving Credit Exposures shall not exceed
the total Revolving Credit Commitments.
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(d) Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (ii) the date that is
five Business Days prior to the Revolving Credit Commitment Termination Date.
(e) Participations. By the issuance of a Letter of Credit (or an amendment
to a Letter of Credit increasing the amount thereof) by an Issuing Lender, and
without any further action on the part of such Issuing Lender or the Revolving
Credit Lenders, such Issuing Lender hereby grants to each Revolving Credit
Lender, and each Revolving Credit Lender hereby acquires from such Issuing
Lender, a participation in such Letter of Credit equal to such Revolving Credit
Lender's Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit. Each Revolving Credit Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a Default
or reduction or termination of the Commitments.
In consideration and in furtherance of the foregoing, each Revolving Credit
Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for account of each Issuing Lender, such Revolving Credit Lender's
Applicable Percentage of each LC Disbursement made by such Issuing Lender
promptly upon the request of such Issuing Lender at any time from the time of
such LC Disbursement until such LC Disbursement is reimbursed by the applicable
Borrower or at any time after any reimbursement payment is required to be
refunded to such Borrower for any reason. Such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Each such payment shall
be made in the same manner as provided in Section 2.06 with respect to Revolving
Credit Loans made by such Revolving Credit Lender (and Section 2.06 shall apply,
mutatis mutandis, to the payment obligations of the Revolving Credit Lenders),
and the Administrative Agent shall promptly pay to the applicable Issuing Lender
the amounts so received by it from the Revolving Credit Lenders. Promptly
following receipt by the Administrative Agent of any payment from a Borrower
pursuant to paragraph (f) of this Section, the Administrative Agent shall
distribute such payment to the applicable Issuing Lender or, to the extent that
the Revolving Credit Lenders have made payments pursuant to this paragraph to
reimburse such Issuing Lender, then to such Revolving Credit Lenders and such
Issuing Lender as their interests may appear. Any payment made by a Revolving
Credit Lender pursuant to this paragraph to reimburse any Issuing Lender for any
LC Disbursement (other than the funding of ABR Revolving Credit Loans or a
Swingline Loan as contemplated above) shall not constitute a Loan and shall not
relieve such Borrower of its obligation to reimburse such LC Disbursement.
(f) Reimbursement. If any Issuing Lender shall make any LC Disbursement in
respect of a Letter of Credit, the applicable Borrower shall reimburse such
Issuing Lender in respect of such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than
12:00 noon, New York City time, on (i) the Business Day that such Borrower
receives notice of such LC Disbursement, if such notice is received prior to
10:00 a.m., New York City time, or (ii) the Business Day immediately following
the day that such Borrower receives such notice, if such notice is not received
prior to such time; provided that, if such LC Disbursement is not less than
$100,000, such Borrower may, subject to the conditions to borrowing set forth
-28-
herein, request in accordance with Section 2.03 that such payment be financed
with an ABR Revolving Credit Borrowing or (in the case of the Company) a
Swingline Loan in an equivalent amount and, to the extent so financed, such
Borrower's obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Credit Borrowing or (in the case of the Company)
Swingline Loan.
If a Borrower fails to make such payment when due, the Administrative Agent
shall notify each Revolving Credit Lender of the applicable LC Disbursement, the
payment then due from such Borrower in respect thereof and such Revolving Credit
Lender's Applicable Percentage thereof.
(g) Obligations Absolute. Each Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (f) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by any Issuing Lender under a Letter of
Credit against presentation of a draft or other document that does not comply
strictly with the terms of such Letter of Credit, and (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, such Borrower's obligations
hereunder. Neither the Administrative Agent, the Revolving Credit Lenders nor
any Issuing Lender, nor any of their Related Parties, shall have any liability
or responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of such Issuing Lender; provided that the foregoing
shall not be construed to excuse such Issuing Lender from liability to the
applicable Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by such
Borrower to the extent permitted by applicable law) suffered by such Borrower
that are caused by such Issuing Lender's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or willful misconduct on the part of any
Issuing Lender (as finally determined by a court of competent jurisdiction),
such Issuing Lender shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented
which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, any Issuing Lender may, in its sole discretion, either accept
and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.
(h) Disbursement Procedures. Each Issuing Lender shall, within a reasonable
time following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. Each Issuing Lender
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shall promptly after such examination notify the Administrative Agent and the
applicable Borrower by telephone (confirmed by telecopy) of such demand for
payment and whether such Issuing Lender has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving such notice
shall not relieve such Borrower of its obligation to reimburse such Issuing
Lender and the Revolving Credit Lenders with respect to any such LC
Disbursement.
(i) Interim Interest. If any Issuing Lender shall make any LC Disbursement,
then, unless the applicable Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that such Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Credit
Loans; provided that, if such Borrower fails to reimburse such LC Disbursement
when due pursuant to paragraph (f) of this Section, then Section 2.12(c) shall
apply. Interest accrued pursuant to this paragraph shall be for account of the
applicable Issuing Lender, except that interest accrued on and after the date of
payment by any Revolving Credit Lender pursuant to paragraph (f) of this Section
to reimburse such Issuing Lender shall be for account of such Revolving Credit
Lender to the extent of such payment.
(j) Replacement of Issuing Lender. Any Issuing Lender may be replaced at
any time by written agreement among the Company, the Administrative Agent, the
replaced Issuing Lender and the successor Issuing Lender thereto. The
Administrative Agent shall notify the Revolving Credit Lenders of any such
replacement of an Issuing Lender. At the time any such replacement shall become
effective, the Company shall pay all unpaid fees accrued for account of the
replaced Issuing Lender pursuant to Section 2.11(b). From and after the
effective date of any such replacement, (i) the successor Issuing Lender shall
have all the rights and obligations of the replaced Issuing Lender under this
Agreement with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term "Issuing Lender" shall be deemed to refer to such
successor or to any previous Issuing Lender, or to such successor and all
previous Issuing Lenders, as the context shall require. After the replacement of
an Issuing Lender hereunder, the replaced Issuing Lender shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing
Lender under this Agreement with respect to Letters of Credit issued by it prior
to such replacement, but shall not be required to issue additional Letters of
Credit.
(k) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Company receives notice from the
Administrative Agent or the Required Revolving Credit Lenders (or, if the
maturity of the Revolving Credit Loans has been accelerated, Revolving Credit
Lenders representing greater than 50% of the total LC Exposures) demanding the
deposit of cash collateral pursuant to this paragraph, the Company shall deposit
in an account with the Administrative Agent, in the name of the Administrative
Agent and for the benefit of the Lenders, an amount in cash equal to 105% of the
total LC Exposures as of such date plus any accrued and unpaid interest thereon;
provided that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to any Loan Party described in clause (h) or (i)
of Article VIII. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Loan
Parties under this Agreement and the other Loan Documents. The Administrative
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and
-30-
sole discretion of the Administrative Agent and at the Company's risk and
expense, such deposits shall not bear interest. Interest or profits, if any, on
such investments shall accumulate in such account. Moneys in such account shall
be applied by the Administrative Agent to reimburse each Issuing Lender for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrowers for the LC Exposure at such time or, if the maturity of the
Revolving Credit Loans has been accelerated (but subject to the consent of
Revolving Credit Lenders representing greater than 50% of the total LC
Exposures), be applied to satisfy other obligations of the Loan Parties under
this Agreement and the other Loan Documents. If the Company is required to
provide an amount of cash collateral hereunder as a result of the occurrence of
an Event of Default, such amount (to the extent not applied as aforesaid) shall
be returned to the Company within three Business Days after all Events of
Default have been cured or waived.
SECTION 2.06. Funding of Borrowings.
---------------------
(a) Funding by Lenders. Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately available
funds by 12:00 noon, New York City time, to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the Lenders;
provided that Swingline Loans shall be made as provided in Section 2.04. The
Administrative Agent will make such Loans available to the applicable Borrower
by promptly crediting the amounts so received, in like funds, to an account of
such Borrower designated by such Borrower in the applicable Borrowing Request;
provided that ABR Revolving Credit Borrowings made to finance the reimbursement
of an LC Disbursement as provided in Section 2.05(f) shall be remitted by the
Administrative Agent to the applicable Issuing Lender.
(b) Presumption by the Administrative Agent. Unless the Administrative
Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing that such Lender will not make available to the Administrative Agent
such Lender's share of such Borrowing, the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with
paragraph (a) of this Section and may, in reliance upon such assumption, make
available to the applicable Borrower a corresponding amount. In such event, if a
Lender has not in fact made its share of the applicable Borrowing available to
the Administrative Agent, then the applicable Lender and such Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such
amount is made available to such Borrower to but excluding the date of payment
to the Administrative Agent, at (i) in the case of such Lender, the greater of
the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation or
(ii) in the case of such Borrower, the interest rate applicable to ABR Loans. If
such Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections.
------------------
(a) Elections by the Borrowers. The Loans constituting each Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the applicable
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Borrower may elect to convert such Borrowing to a Borrowing of a different Type
or to continue such Borrowing as a Borrowing of the same Type and, in the case
of a Eurodollar Borrowing, may elect Interest Periods, all as provided in this
Section. The applicable Borrower may elect different options with respect to
different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans of the respective
Class constituting such Borrowing, and the Loans of such Class constituting each
such portion shall be considered a separate Borrowing. This Section shall not
apply to Swingline Borrowings, which may not be converted or continued.
(b) Notice of Elections. To make an election pursuant to this Section, the
applicable Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if such Borrower were requesting a Borrowing of the Type resulting from
such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Interest Election Request in a form approved by the Administrative Agent and
signed by such Borrower.
(c) Content of Interest Election Requests. Each telephonic and written
Interest Election Request shall specify the following information in compliance
with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if
different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii) and
(iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest
Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term "Interest
Period" and permitted under Section 2.02(d); provided that with respect
to the conversion of the initial Borrowing from an ABR Borrowing to a
Eurodollar Borrowing effective on August 28, 2008, the Interest Period for
such Eurodollar Borrowing shall end on September 30, 2008.
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the applicable Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Notice by the Administrative Agent to the Lenders. Promptly following
receipt of an Interest Election Request, the Administrative Agent shall advise
each Lender of the details thereof and of such Lender's portion of each
resulting Borrowing.
(e) Failure to Elect; Events of Default. If a Borrower fails to deliver a
timely Interest Election Request with respect to a Eurodollar Borrowing prior to
the end of the Interest Period applicable thereto, then, unless such Borrowing
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is repaid as provided herein, at the end of such Interest Period such Borrowing
shall be converted to an ABR Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Company, then, so long as an Event of Default is continuing (i) no outstanding
Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii)
unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing
at the end of the Interest Period applicable thereto.
SECTION 2.08. Termination, Reduction and Increase of the Commitments.
------------------------------------------------------
(a) Scheduled Termination. Unless previously terminated, (i) the A-1 Term
Loan Commitments shall terminate at 5:00 p.m., New York City time, on the
Effective Date and (ii) the Revolving Credit Commitments shall terminate on the
Revolving Credit Commitment Termination Date.
(b) Voluntary Termination or Reduction. The Company may at any time
terminate, or from time to time reduce, the Revolving Credit Commitments;
provided that (i) each reduction of the Revolving Credit Commitment pursuant to
this Section shall be in an amount that is $1,000,000 or a larger multiple of
$1,000,000 and (ii) the Company shall not terminate or reduce the Revolving
Credit Commitments if, after giving effect to any concurrent prepayment of the
Loans in accordance with Section 2.10, the total Revolving Credit Exposures
would exceed the total Revolving Credit Commitments. The Company shall notify
the Administrative Agent of any election to terminate or reduce the Revolving
Credit Commitments under this paragraph (b) at least three Business Days prior
to the effective date of such termination or reduction, specifying such election
and the effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Company pursuant to this Section shall be irrevocable;
provided that a notice of such termination may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Company (by notice to the Administrative Agent
on or prior to the specified effective date) if such condition is not satisfied.
Any termination or reduction of the Revolving Credit Commitments shall be
permanent.
(c) Increase of Revolving Credit Commitment.
(i) Requests for Increase. The Company may propose at any time that the
Revolving Credit Commitments hereunder be increased (each such proposed increase
being a "Revolving Credit Commitment Increase") by having an existing Revolving
Credit Lender agree to increase its then existing Revolving Credit Commitment
(each an "Increasing Revolving Credit Lender") and/or by adding as a new
Revolving Credit Lender hereunder any Person which shall agree to provide a
Revolving Credit Commitment hereunder (each an "Assuming Revolving Credit
Lender"), in each case with the consent of the Administrative Agent, each
Issuing Lender and the Swingline Lender (such consent in each case not to be
unreasonably withheld), by notice to the Administrative Agent specifying the
amount of the relevant Revolving Credit Commitment Increase, the Revolving
Credit Lender(s) providing for such Revolving Credit Commitment Increase and the
date on which such increase is to be effective (the "Revolving Credit Commitment
Increase Date"), which shall be a Business Day at least three Business Days
after delivery of such notice and 30 days prior to the Revolving Credit
Commitment Termination Date; provided that:
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(A) the minimum amount of each Revolving Credit
Commitment Increase shall be $5,000,000 or a larger multiple
of $1,000,000;
(B) the aggregate amount of all Revolving Credit
Commitment Increases hereunder, together with the aggregate
amount of all Incremental Term Loans, shall not exceed
$50,000,000;
(C) both at the time of any such request and upon the
effectiveness of any Revolving Credit Commitment Increases, no
Default shall have occurred and be continuing or would result
from such proposed Revolving Credit Commitment Increase; and
(D) the representations and warranties set forth in
Article IV and in the other Loan Documents shall be true and
correct on and as of the Revolving Credit Commitment Increase
Date as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been
made as of a specific date, as of such specific date).
Each notice by the Company under this paragraph shall be deemed to constitute a
representation and warranty by the Company Parties as to the matters specified
in clauses (C) and (D) above. Notwithstanding anything herein to the contrary,
no Revolving Credit Lender shall have any obligation hereunder to become an
Increasing Revolving Credit Lender and any election to do so shall be in the
sole discretion of each Revolving Credit Lender.
(ii) Effectiveness of Increase. Each Revolving Credit Commitment Increase
(and the increase of the Revolving Credit Commitment of each Increasing
Revolving Credit Lender and/or the new Revolving Credit Commitment of each
Assuming Revolving Credit Lender, as applicable, resulting therefrom) shall
become effective as of the relevant Revolving Credit Commitment Increase Date
upon receipt by the Administrative Agent, on or prior to 9:00 a.m., New York
City time, on such Revolving Credit Commitment Increase Date, of (A) a
certificate of a duly authorized officer of the Company stating that the
conditions with respect to such Revolving Credit Commitment Increase under this
paragraph (c) have been satisfied, (B) an agreement, in form and substance
satisfactory to the Company and the Administrative Agent, pursuant to which,
effective as of such Revolving Credit Commitment Increase Date, as applicable,
the Revolving Credit Commitment of each such Increasing Revolving Credit Lender
shall be increased or each such Assuming Revolving Credit Lender shall undertake
a Revolving Credit Commitment, in each case duly executed by such Increasing
Revolving Credit Lender or Assuming Revolving Credit Lender, as the case may be,
and the Company and acknowledged by the Administrative Agent and (C) such
certificates or other documents from the Borrowers reasonably requested by the
Administrative Agent in connection with such Revolving Credit Commitment
Increase. Upon the Administrative Agent's receipt of a fully executed agreement
from each Increasing Revolving Credit Lender and/or Assuming Revolving Credit
Lender referred to in clause (B) above, together with the certificate and other
documents referred to in clauses (A) and (C) above, the Administrative Agent
shall record the information contained in each such agreement in the Register
and give prompt notice of the relevant Revolving Credit Commitment Increase to
the Company and the Lenders (including, if applicable, each Assuming Revolving
Credit Lender). On each Revolving Credit Commitment Increase Date, the Borrowers
shall simultaneously (i) prepay in full the outstanding Revolving Credit Loans
(if any) held by the Revolving Credit Lenders immediately prior to giving effect
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to the relevant Revolving Credit Commitment Increase, (ii) if any Borrower shall
have so requested in accordance with this Agreement, borrow new Revolving Credit
Loans from all Revolving Credit Lenders (including, if applicable, any Assuming
Revolving Credit Lender) such that, after giving effect thereto, the Revolving
Credit Loans are held ratably by the Revolving Credit Lenders in accordance with
their respective Revolving Credit Commitments (after giving effect to such
Revolving Credit Commitment Increase) and (iii) pay to the Revolving Credit
Lenders the amounts, if any, payable under Section 2.15; provided that,
notwithstanding the foregoing, at the election of the Administrative Agent in
its sole discretion, any Revolving Credit Loans outstanding on such Revolving
Credit Commitment Increase Date shall be reallocated among the Revolving Credit
Lenders to the extent necessary to keep the outstanding Revolving Credit Loans
ratable with any revised pro rata shares of such Lenders arising from any
nonratable increase in the Revolving Credit Commitments under this Section
2.08(c). Upon each such Revolving Credit Commitment Increase, the participation
interests of the Revolving Credit Lenders in the then outstanding Letters of
Credit and Swingline Loans shall automatically be adjusted to reflect, and each
Revolving Credit Lender (including, if applicable, each Assuming Revolving
Credit Lender) shall have a participation in each such Letter of Credit and
Swingline Loan equal to, the Revolving Credit Lenders' respective Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit or such Swingline Loan, as applicable, after giving effect to such
increase.
(d) Incremental Term Loans.
(i) Requests for Incremental Term Loans. The Company and any one or more
Lenders or other lenders arranged by the Company and reasonably acceptable to
the Administrative Agent (an "Incremental Term Loan Lender") may from time to
time agree that such Incremental Term Loan Lenders shall make one or more
tranches of term loans available to the Company (each an "Incremental Term
Loan"). Any such Incremental Term Loan shall be made available (the date such
Incremental Term Loan is made available, an "Incremental Term Loan Effective
Date") to the Company pursuant to a supplement to this Agreement in form and
substance reasonably satisfactory to the Administration Agent (an "Incremental
Term Loan Supplement") executed and delivered by the Company, the applicable
Incremental Term Loan Lenders and the Administrative Agent (which Incremental
Term Loan Supplement may include such amendments to this Agreement as shall be
required in the reasonable judgment of the Administrative Agent to effect the
intent of this Section); provided that:
(A) the minimum amount of each Incremental Term Loan
shall be $5,000,000 or a larger multiple of $1,000,000;
(B) the aggregate amount of all Incremental Term
Loans hereunder, together with the aggregate amount of
Revolving Credit Commitment Increases made under Section
2.08(c), shall not exceed $50,000,000;
(C) both at the time of any such request and upon the
effectiveness of any Incremental Term Loans, no Default shall
have occurred and be continuing or would result from such
proposed Incremental Term Loan;
(D) the representations and warranties set forth in
Article IV and in the other Loan Documents shall be true and
correct on and as of the Incremental Term Loan Effective Date
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as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been
made as of a specific date, as of such specific date); and
(E) the Incremental Term Loans shall have the same
terms and conditions as the Term Loans except that Incremental
Term Loans may have (i) a final maturity no earlier than the
A-1 Term Loan Maturity Date, (ii) a weighted average life to
maturity no shorter than the weighted average life of the A-1
Term Loans and (iii) pricing (which shall include all upfront
or similar fees or original issue discount payable to all
Lenders providing such Incremental Term Loans) different than
the pricing applicable to the A Term Loans and A-1 Term Loans.
Notwithstanding anything herein to the contrary, no Lender shall have any
obligation hereunder to become an Incremental Term Loan Lender and any election
to do so shall be in the sole discretion of each Lender.
(ii) Effectiveness of Increase. On each Incremental Term Loan Effective
Date, the Company shall deliver to the Administrative Agent (A) a certificate of
a duly authorized officer of the Company stating that the conditions with
respect to such Incremental Term Loan under this paragraph (d) have been
satisfied, (B) an executed Incremental Term Loan Supplement and (C) such
certificates or other documents from the Company reasonably requested by the
Administrative Agent in connection with such Incremental Term Loan. Upon the
Administrative Agent's receipt of a fully executed Incremental Term Loan
Supplement, together with the certificate and other documents referred to in
clauses (A) and (C) above, the Administrative Agent shall record the information
contained in each such agreement in the Register and give prompt notice of the
relevant Incremental Term Loan to the Company and the Lenders.
SECTION 2.09. Repayment of Loans; Evidence of Debt.
------------------------------------
(a) Repayment.
(i) Each Borrower hereby unconditionally promises to pay to the
Administrative Agent for account of each Revolving Credit Lender the full
outstanding principal amount of such Revolving Credit Lender's Revolving Credit
Loans made to such Borrower, and each such Revolving Credit Loan shall mature,
on the Revolving Credit Commitment Termination Date.
(ii) The Company hereby unconditionally promises to pay to the Swingline
Lender the then unpaid principal amount of each Swingline Loan on the earlier of
the Revolving Credit Commitment Termination Date and the first date after such
Swingline Loan is made that is the 15th or last day of a calendar month and is
at least two Business Days after such Swingline Loan is made (provided that on
each date that a Revolving Credit Borrowing is made, the Company shall repay all
Swingline Loans then outstanding); and
(iii) The Company hereby unconditionally promises to pay to the
Administrative Agent for account of each A Term Loan Lender the principal amount
of the A Term Loan held by such A Term Loan Lender in 16 consecutive quarterly
installments payable on the Principal Payment Dates, the aggregate principal
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amount to be paid on each Principal Payment Date in respect of all A Term Loans
held by the A Term Loan Lenders to be in the amount specified below (with the
final such installment being in the aggregate principal amount of the A Term
Loans then outstanding):
Principal Payment Date Aggregate Amount
Falling on or Nearest to: of Payment
--------------------------- ----------------
September 30, 2008 $3,187,500
December 31, 2008 $3,187,500
March 31, 2009 $3,187,500
June 30, 2009 $3,187,500
September 30, 2009 $3,187,500
December 31, 2009 $3,187,500
March 31, 2010 $3,187,500
June 30, 2010 $3,187,500
September 30, 2010 $4,250,000
December 31, 2010 $4,250,000
March 31, 2011 $4,250,000
June 30, 2011 $4,250,000
September 30, 2011 $6,375,000
December 31, 2011 $6,375,000
March 31, 2012 $6,375,000
A Term Loan Maturity Date $6,375,000
(iv) The Company hereby unconditionally promises to pay to the
Administrative Agent for account of each A-1 Term Loan Lender the principal
amount of the A-1 Term Loans held by such A-1 Term Loan Lender in 20 consecutive
quarterly installments payable on the Principal Payment Dates, the aggregate
principal amount to be paid on each Principal Payment Date in respect of all A-1
Term Loans held by the A-1 Term Loan Lenders to be in the amount specified below
(with the final such installment being in the aggregate principal amount of the
A-1 Term Loans then outstanding):
Principal Payment Date Aggregate Amount
Falling on or Nearest to: of Payment
--------------------------- ----------------
December 31, 2008 $3,000,000
March 31, 2009 $3,000,000
June 30, 2009 $3,000,000
September 30, 2009 $3,000,000
December 31, 2009 $3,000,000
March 31, 2010 $3,000,000
June 30, 2010 $3,000,000
September 30, 2010 $3,000,000
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December 31, 2010 $3,000,000
March 31, 2011 $3,000,000
June 30, 2011 $3,000,000
September 30, 2011 $3,000,000
December 31, 2011 $3,000,000
March 31, 2012 $3,000,000
June 30, 2012 $3,000,000
September 30, 2012 $3,000,000
December 31, 2012 $3,000,000
March 31, 2013 $3,000,000
June 30, 2013 $3,000,000
A-1 Term Loan Maturity Date $3,000,000
(b) Adjustment of Amortization Schedule. Any prepayment of an A Term Loan
or an A-1 Term Loan under Section 2.10 shall be applied ratably to reduce the
then remaining principal installments of the A Term Loans and A-1 Term Loans, as
applicable.
(c) Maintenance of Records by Lenders. Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(d) Maintenance of Records by the Administrative Agent. The Administrative
Agent shall maintain accounts in which it shall record (i) the amount of each
Loan made hereunder, the Class and Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from each Borrower to each Lender hereunder and
(iii) the amount of any sum received by the Administrative Agent hereunder for
account of the Lenders and each Lender's share thereof.
(e) Effect of Entries. The entries made in the accounts maintained pursuant
to paragraph (c) or (d) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the
applicable Borrower to repay the Loans made to it in accordance with the terms
of this Agreement.
(g) Promissory Notes. Any Lender may request that Loans made by it to any
Borrower be evidenced by a promissory note of such Borrower. In such event, such
Borrower, at its own expense, shall prepare, execute and deliver to such Lender
a promissory note(s) payable to the order of such Lender (or, if requested by
such Lender, to such Lender and its registered assigns) and substantially in the
form of Exhibit ▇-▇, ▇-▇ or B-3, as appropriate, and such note(s) shall be
evidence of such Loans (and all amounts payable in respect thereof). Thereafter,
the Loans evidenced by such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 10.04) be represented by
one or more promissory notes in such form payable to the order of the payee
named therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).
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SECTION 2.10. Prepayment of Loans.
-------------------
(a) Optional Prepayments. The Borrowers shall have the right at any time
and from time to time to prepay any Borrowing in whole or in part, subject to
the requirements of paragraph (c) of this Section.
(b) Mandatory Prepayments. The Company will prepay the Term Loans as
follows:
(i) If after the date hereof any Indebtedness is incurred by the Company or
any of its Subsidiaries (excluding any Indebtedness incurred in accordance with
Section 7.01), an amount equal to 100% of the Net Cash Proceeds thereof shall be
applied on the date of such incurrence toward the prepayment of the Term Loans
as set forth in Section 2.10(b)(iv).
(ii) So long as at the time of the prepayment the Consolidated Leverage
Ratio is greater than 2.50 to 1.00, upon any Equity Issuance by the Company or
any of its Subsidiaries, an amount equal to 100% of the Net Cash Proceeds
thereof shall be applied on the date of such issuance toward the prepayment of
the Term Loans as set forth in Section 2.10(b)(iv); provided that, in such case,
such application shall only be made to the extent required to reduce the
Consolidated Leverage Ratio to 2.50 to 1.00 or below (calculated on a pro forma
basis after giving effect to such application).
(iii) If after the date hereof the Company or any of its Subsidiaries shall
receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a
Reinvestment Notice shall be delivered to the Administrative Agent in respect
thereof within five Business Days after such Asset Sale or Recovery Event, an
amount equal to 50% of such Net Cash Proceeds shall be applied on such fifth
Business Day toward the prepayment of the Term Loans as set forth in Section
2.10(b)(iv); provided that, notwithstanding the foregoing, on each Reinvestment
Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with
respect to the relevant Reinvestment Event shall be applied toward the
prepayment of the Term Loans as set forth in Section 2.10(b)(iv).
(iv) Each such prepayment of the Term Loans shall be applied ratably to the
then remaining principal installments thereof.
(c) Clean-Down. For at least 30 consecutive days during each fiscal year
and at least ten consecutive days during the period commencing on December 1
through and including January 31(such applicable period, the "Cleanup Period")
of each fiscal year of the Company, the outstanding principal amount of all
Revolving Credit Loans may not exceed zero (or, to the extent the excess of
aggregate cash consideration paid in connection with Acquisitions permitted
under this Agreement made after the Effective Date over any Incremental Term
Loans made after the Effective Date exceeds $30,000,000, 25% of the amount of
the Revolving Credit Commitment).
(d) Notices, Etc. The applicable Borrower shall notify the Administrative
Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender)
by telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case
of prepayment of a Eurodollar Borrowing, not later than 12:00 noon, New York
City time, three Business Days before the date of prepayment, (ii) in the case
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of prepayment of an ABR Borrowing, not later than 12:00 noon, New York City
time, one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment; provided that, if a
notice of prepayment is given in connection with a conditional notice of
termination of the Revolving Credit Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt of any such
notice relating to a Borrowing of any Class, the Administrative Agent shall
advise the applicable Lenders of the contents thereof. Each partial prepayment
of any Borrowing shall be in an amount that would be permitted in the case of a
Borrowing of the same Type as provided in Section 2.02, except as necessary to
apply fully the required amount of a mandatory prepayment. Each prepayment of a
Borrowing of any Class shall be applied ratably to the Loans of such Class
included in such Borrowing and (unless the Company shall otherwise direct) shall
be made, first, to ABR Loans and, second, to Eurodollar Loans. Prepayments shall
be accompanied by accrued interest to the extent required by Section 2.12 and
prepayments of Term Loans shall be applied in the manner specified in Section
2.09(b).
SECTION 2.11. Fees.
----
(a) Commitment Fee. The Company agrees to pay to the Administrative Agent
for account of each Revolving Credit Lender a commitment fee, which shall accrue
at the Applicable Rate on the average daily unused amount of such Lender's
Revolving Credit Commitment during the period from and including the Effective
Date to but excluding the earlier of the date the Revolving Credit Commitments
terminate and the Revolving Credit Commitment Termination Date. Accrued
commitment fees shall be payable on each Quarterly Date and on the earlier of
the date the Revolving Credit Commitments terminate and the Revolving Credit
Commitment Termination Date, commencing on the first such date to occur after
the date hereof. All commitment fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). For purposes of computing commitment
fees, the Revolving Credit Commitment of a Revolving Credit Lender shall be
deemed to be used to the extent of the outstanding Revolving Credit Loans and LC
Exposure of such Revolving Credit Lender (and the Swingline Exposure of such
Revolving Credit Lender shall be disregarded for such purpose).
(b) Letter of Credit Fees. The Company agrees to pay (i) to the
Administrative Agent for account of each Revolving Credit Lender a participation
fee with respect to its participations in Letters of Credit, which shall accrue
at the same Applicable Rate used to determine the interest rate on Eurodollar
Revolving Credit Loans on the average daily amount of such Revolving Credit
Lender's LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the Effective Date to but
excluding the later of the date the Revolving Credit Commitments terminate and
the date on which there ceases to be any LC Exposure, and (ii) to the applicable
Issuing Lender a fronting fee, which shall accrue at the rate of 0.125% per
annum on the average daily amount of the total LC Exposures in respect of
Letters of Credit issued by such Issuing Lender (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date the
Revolving Credit Commitments terminate and the date on which there ceases to be
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any LC Exposure in respect of Letters of Credit issued by such Issuing Lender,
as well as such Issuing Lender's standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. Participation fees and fronting fees accrued through and
including the last day of each of March, June, September and December shall be
payable on the third Business Day following such last day, commencing on the
first such date to occur after the Effective Date; provided that all such fees
shall be payable on the date on which the Revolving Credit Commitments terminate
and any such fees accruing after the date on which the Revolving Credit
Commitments terminate shall be payable on demand. Any other fees payable to the
Issuing Lenders pursuant to this paragraph shall be payable within 10 days after
demand. All participation fees and fronting fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) Administrative Agent Fees. The Company agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Company and the Administrative
Agent.
(d) Payment of Fees. All fees payable hereunder shall be paid on the dates
due, in immediately available funds, to the Administrative Agent (or to the
applicable Issuing Lender, in the case of fees payable to it) for distribution,
in the case of commitment fees and participation fees, to the Lenders entitled
thereto. Fees paid shall not be refundable under any circumstances.
SECTION 2.12. Interest.
--------
(a) ABR Loans. The Loans comprising each ABR Borrowing (including each
Swingline Loan) shall bear interest at the Alternate Base Rate plus the
Applicable Rate.
(b) Eurodollar Loans. The Loans comprising each Eurodollar Borrowing shall
bear interest at the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Rate.
(c) Default Interest. Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrowers
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other amount, 2%
plus the rate applicable to ABR Loans as provided in paragraph (a) of this
Section.
(d) Payment of Interest. Accrued interest on each Loan shall be payable in
arrears on each Interest Payment Date for such Loan and, in the case of the
Revolving Credit Loans, upon termination of the Revolving Credit Commitments;
provided that (i) interest accrued pursuant to paragraph (c) of this Section
shall be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan (other than a prepayment of an ABR Revolving Credit Loan prior to the
end of the Revolving Credit Availability Period), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
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(e) Computation. All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the commencement of
--------------------------
any Interest Period for any Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that the
Adjusted LIBO Rate for such Interest Period will not adequately and fairly
reflect the cost to such Lenders of making or maintaining their respective
Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or the
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and such Borrowing (unless prepaid) shall be continued as, or converted to, an
ABR Borrowing and (ii) if any Borrowing Request requests a Eurodollar Borrowing,
such Borrowing shall be made as an ABR Borrowing.
SECTION 2.14. Increased Costs.
---------------
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or any Issuing Lender; or
(ii) impose on any Lender or any Issuing Lender or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans
made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or such
Issuing Lender of participating in, issuing or maintaining any Letter of Credit
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or to reduce the amount of any sum received or receivable by such Lender or such
Issuing Lender hereunder (whether of principal, interest or otherwise), then the
applicable Borrower will pay to such Lender or such Issuing Lender, as the case
may be, such additional amount or amounts as will compensate such Lender or such
Issuing Lender, as the case may be, for such additional costs incurred or
reduction suffered.
(b) Capital Requirements. If any Lender or any Issuing Lender determines
that any Change in Law regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender's or such Issuing Lender's
capital or on the capital of such Lender's or such Issuing Lender's holding
company, if any, as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by such Issuing Lender, to a level below that which such Lender or
such Issuing Lender or such Lender's or such Issuing Lender's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's or such Issuing Lender's policies and the policies of such Lender's or
such Issuing Lender's holding company with respect to capital adequacy), then
from time to time the Borrowers will pay to such Lender or such Issuing Lender,
as the case may be, such additional amount or amounts as will compensate such
Lender or such Issuing Lender or such Lender's or such Issuing Lender's holding
company for any such reduction suffered.
(c) Certificates from Lenders. A certificate of a Lender or an Issuing
Lender setting forth the amount or amounts, necessary to compensate such Lender
or such Issuing Lender or its holding company, as the case may be, as specified
in paragraph (a) or (b) of this Section shall be delivered to the applicable
Borrower and the Company and shall be conclusive absent manifest error. The
applicable Borrower shall pay such Lender or such Issuing Lender, as the case
may be, the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or any
Issuing Lender to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or such Issuing Lender's right to demand
such compensation; provided that the Borrowers shall not be required to
compensate a Lender or an Issuing Lender pursuant to this Section for any
increased costs or reductions incurred more than 270 days prior to the date that
such Lender or such Issuing Lender, as the case may be, notifies the Company of
the Change in Law giving rise to such increased costs or reductions and of such
Lender's or such Issuing Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 270-day period referred to above shall be
extended to include the period of retroactive effect thereof.
SECTION 2.15. Break Funding Payments. In the event of (a) the payment of
any principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Eurodollar Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section
2.12(b) and is revoked in accordance therewith) or (d) the assignment of any
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Company pursuant to Section 2.19, then,
in any such event, the applicable Borrower shall compensate each Lender for the
loss (other than any loss of anticipated profits), cost and expense attributable
to such event. In the case of a Eurodollar Loan, such loss (other than any loss
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of anticipated profits), cost or expense to any Lender shall be deemed to
include an amount reasonably determined by such Lender to be the excess, if any,
of (i) the amount of interest which would have accrued on the principal amount
of such Loan had such event not occurred, at the Adjusted LIBO Rate that would
have been applicable to such Loan, for the period from the date of such event to
the last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan), over (ii) the amount of interest which would
accrue on such principal amount for such period at the interest rate which such
Lender would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Company and shall be conclusive absent manifest error. The Company shall
pay such Lender the amount shown as due on any such certificate within 10 days
after receipt thereof.
SECTION 2.16. Taxes.
-----
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrowers hereunder or under any other Loan Document shall be
made free and clear of and without deduction for any Indemnified Taxes or Other
Taxes; provided that if a Borrower shall be required to deduct any Indemnified
Taxes or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) the
Administrative Agent, Lender or Issuing Lender (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Borrower shall make such deductions and (iii) such Borrower shall pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) Payment of Other Taxes by the Borrowers. In addition, each Borrower
shall pay any Other Taxes to the relevant Governmental Authority in accordance
with applicable law.
(c) Indemnification by the Borrowers. Each Borrower shall indemnify the
Administrative Agent, each Lender and each Issuing Lender, within 10 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent, such Lender or such Issuing Lender, as
the case may be, on or with respect to any payment by or on account of any
obligation of such Borrower hereunder (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered
to a Borrower by a Lender or an Issuing Lender, or by the Administrative Agent
on its own behalf or on behalf of a Lender or an Issuing Lender, shall be
conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by a Borrower to a Governmental Authority, such
Borrower shall deliver to the Administrative Agent the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such payment,
a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
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(e) Tax Forms. Any Lender or Issuing Lender that is entitled to an
exemption from or reduction of any applicable withholding tax with respect to
payments hereunder or under any other Loan Document shall deliver to the
applicable Borrower (with a copy to the Administrative Agent), at the time or
times reasonably requested by such Borrower or the Administrative Agent, such
properly completed and executed documentation prescribed by applicable law or as
reasonably requested by the applicable Borrower or the Administrative Agent as
will permit such payments to be made without withholding or at a reduced rate of
withholding. In addition, any Lender or Issuing Lender, if requested by the
applicable Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by such
Borrower or the Administrative Agent as will enable such Borrower or the
Administrative Agent to determine whether or not such Lender or Issuing Lender
is subject to backup withholding or information reporting requirements.
Notwithstanding anything to the contrary in the preceding two sentences, in the
case of any withholding tax other than the U.S. federal withholding tax, the
completion, execution and submission of such forms shall not be required if in
the Foreign Lender's reasonable judgment such completion, execution or
submission would subject such Foreign Lender to any material unreimbursed cost
or expense or would materially prejudice the legal or commercial position of
such Foreign Lender.
Without limiting the generality of the foregoing, in the event that any Borrower
is a United States person under Section 7701(a)(30) of the Code, any Foreign
Lender shall, to the extent it is legally entitled to do so, deliver to such
Borrower and the Administrative Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement, and after the occurrence of a change in
the Lender's circumstances which require a change in the most recent form or
certification previously delivered by it (and from time to time thereafter upon
the request of such Borrower or the Administrative Agent), whichever of the
following is applicable:
(i) duly completed copies of Internal Revenue
Service Form W-8BEN claiming eligibility for benefits of an
income tax treaty to which the United States of America is a
party,
(ii) duly completed copies of Internal Revenue
Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming
the benefits of the exemption for portfolio interest under
section 881(c) of the Code, (x) a certificate substantially in
the Form of Exhibit H to the effect that such Foreign Lender
is not (A) a "bank" within the meaning of section 881(c)(3)(A)
of the Code, (B) a "10 percent shareholder" of the Borrower
within the meaning of section 881(c)(3)(B) of the Code, (C) a
"controlled foreign corporation" described in section
881(c)(3)(C) of the Code and (D) the interest payment in
question are not effectively connected with the United States
trade or business conducted by such Lender (a "U.S. Tax
Compliance Certificate") and (y) duly completed copies of
Internal Revenue Service Form W-8BEN,
(iv) to the extent a Foreign Lender is not the
beneficial owner (for example, where the Foreign Lender is a
partnership or participating Lender granting a typical
participation), an Internal Revenue Service Form W-8IMY,
accompanied by a Form W-8ECI, W-8BEN, U.S. Tax Compliance
Certificate, Form W-9, and/or other certification documents
from each beneficial owner, as applicable; provided that, if
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the Foreign Lender is a partnership (and not a participating
Lender) and one or more beneficial owners of such Foreign
Lender are claiming the portfolio interest exemption, such
Foreign Lender may provide a U.S. Tax Compliance Certificate
on behalf of each such beneficial owner, or
(v) any other form prescribed by applicable law
as a basis for claiming exemption from or a reduction in
United States federal withholding tax duly completed together
with such supplementary documentation as may be prescribed by
applicable law to permit a Borrower or the Administrative
Agent to determine the withholding or deduction required to be
made, if any.
Each Lender and Issuing Lender agrees that if any form or certification it
previously delivered by it expires or becomes obsolete or inaccurate in any
respect, it shall update such form or certification or promptly notify the
applicable Borrower and the Administrative Agent in writing of its legal
inability to do so.
Any Lender or Issuing Lender that is a United States person under Section
7701(a)(30) of the Interval Revenue Code, to the extent it may lawfully do so,
shall deliver to the Borrower and the Administrative Agent on or prior to the
date on which such Lender or Issuing Lender becomes a Lender or Issuing Lender,
as applicable, under this Agreement, on or prior to the date on which any such
form or certification expires or becomes obsolete, and after the occurrence of a
change in the Lender or Issuing Lender's circumstances which require a change in
the most recent form or certification previously delivered by it (and from time
to time thereafter upon the request of the Borrower or the Administrative
Agent), duly completed copies of Internal Revenue Service Form W-9 (or any
successor form) certifying that such Lender or Issuing Lender is entitled to an
exemption from U.S. backup withholding tax.
(f) Each Lender shall indemnify the Administrative Agent within 10 days
after demand therefor, for the full amount of any Excluded Taxes attributable to
such Lender that are payable or paid by the Administrative Agent, and reasonable
expenses arising therefrom or with respect thereto, whether or not such Excluded
Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered
to any Lender by the Administrative Agent shall be conclusive absent manifest
error.
(g) Refunds. If the Administrative Agent, a Lender or an Issuing Lender
determines, in its sole discretion, that it has received a refund of any Taxes
or Other Taxes as to which it has been indemnified by a Borrower or with respect
to which a Borrower has paid additional amounts pursuant to this Section, it
shall pay over such refund to such Borrower (but only to the extent of indemnity
payments made, or additional amounts paid, by such Borrower under this Section
with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender or such
Issuing Lender and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided that such
Borrower, upon the request of the Administrative Agent or such Lender or such
Issuing Lender, agrees to repay the amount paid over to such Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender or such Issuing Lender in
the event the Administrative Agent or such Lender or such Issuing Lender is
required to repay such refund to such Governmental Authority. This Section shall
not be construed to require the Administrative Agent, any Lender or any Issuing
Lender to make available its tax returns (or any other information relating to
its taxes which it deems confidential) to the Company, any of its Subsidiaries
or any other Person.
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SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
-----------------------------------------------------------
(a) Payments by the Borrowers. Each Borrower shall make each payment
required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or of amounts payable under Section 2.14,
2.15 or 2.16, or otherwise) or under any other Loan Document (except as
otherwise expressly provided therein) prior to 12:00 noon, New York City time,
on the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at an account maintained
with the Administrative Agent as notified to the Company and the Lenders, except
as otherwise expressly provided in the relevant Loan Document and except
payments to be made directly to the Issuing Lenders or the Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.14,
2.15, 2.16 and 10.03, which shall be made directly to the Persons entitled
thereto. The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment hereunder shall be due on a day that
is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder and under any other Loan Document shall be made in Dollars.
(b) Application of Insufficient Payments. If at any time insufficient funds
are received by and available to the Administrative Agent to pay fully all
amounts of principal, unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, towards payment of principal and unreimbursed LC Disbursements then
due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise provided herein: (i)
each Borrowing of a particular Class shall be made from the applicable Lenders,
pro rata according to the amounts of the respective Commitments of such Class
and shall be allocated pro rata among the applicable Lenders according to the
amounts of their respective Commitments of such Class (in the case of the making
of Loans) or their respective Loans of such Class that are to be included in
such Borrowing (in the case of conversions and continuations of Loans), (ii)
each payment of commitment fees under Section 2.11 shall be made for account of
the Revolving Credit Lenders, and each termination or reduction of the amount of
the Revolving Credit Commitments under Section 2.08 shall be applied to the
Revolving Credit Commitments, pro rata according to the respective Revolving
Credit Commitments of the Revolving Credit Lenders; (iii) each payment or
prepayment of principal of Loans of any Class by any Borrower shall be made for
account of the applicable Lenders pro rata according to the respective unpaid
principal amounts of the Loans of such Class held by such Lenders; and (iv) each
payment of interest on Loans of any Class by any Borrower shall be made for
account of the applicable Lenders pro rata according to the amounts of interest
on such Loans of such Class then due and payable to such Lenders.
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(d) Sharing of Payments by Lenders. If any Lender shall, by exercising any
right of set-off or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans and participations in LC
Disbursements and Swingline Loans, as applicable, and accrued interest thereon
than the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Loans and participations in LC Disbursements and Swingline Loans, as applicable,
of other applicable Lenders to the extent necessary so that the benefit of all
such payments shall be shared by the applicable Lenders ratably in accordance
with the aggregate amount of principal of and accrued interest on their
respective Loans and participations in LC Disbursements and Swingline Loans, as
applicable; provided that (i) if any such participations are purchased and all
or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by the Borrowers pursuant to
and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC Disbursements to any
assignee or participant, other than to the Company or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall apply).
Each Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Borrower in the amount
of such participation.
(e) Presumptions of Payment. Unless the Administrative Agent shall have
received notice from any Borrower prior to the date on which any payment is due
to the Administrative Agent for account of the Lenders or the Issuing Lenders
hereunder that such Borrower will not make such payment, the Administrative
Agent may assume that such Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders or the Issuing Lenders, as the case may be, the amount due. In such
event, if such Borrower has not in fact made such payment, then each of the
applicable Lenders or the applicable Issuing Lender, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or such Issuing Lender with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(f) Certain Deductions by the Administrative Agent. If any Lender shall
fail to make any payment required to be made by it pursuant to Section 2.05(e),
2.06(b) or 2.17(e), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for account of such Lender to satisfy such
Lender's obligations under such Sections until all such unsatisfied obligations
are fully paid.
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SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
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(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 2.14, or if a Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for account of any
Lender pursuant to Section 2.16, then such Lender shall use reasonable efforts
to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.14 or 2.16, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Company hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 2.14, or if a Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for account of any Lender pursuant to
Section 2.16, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Company may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 10.04), all its interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that (i)
the Company shall have received the prior written consent of the Administrative
Agent (unless a Term Loan is being assigned to an existing Term Loan Lender or
an Affiliate or Approved Fund thereof and (if a Revolving Credit Commitment is
being assigned) each Issuing Lender and the Swingline Lender, which consent
shall not unreasonably be withheld, (ii) such Lender shall have received payment
of an amount equal to the outstanding principal of its Loans and participations
in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder, from the assignee (to the extent
of such outstanding principal and accrued interest and fees) or the applicable
Borrower (in the case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under Section 2.14 or
payments required to be made pursuant to Section 2.16, such assignment will
result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Company to require such assignment and delegation cease to apply.
SECTION 2.19. Designation of Subsidiary Borrowers.
-----------------------------------
(a) Designation. Subject to the terms and conditions of this Section
(including paragraph (b) of this Section), the Company may, at any time or from
time to time upon not less than five Business Days' notice to the Administrative
Agent (or such other period which is acceptable to the Administrative Agent),
request that a wholly-owned Domestic Subsidiary specified in such notice become
a party to this Agreement as a Subsidiary Borrower; provided that each such
designation shall be subject to the prior approval of the Administrative Agent
(which approval in each case shall not be unreasonably withheld). The
Administrative Agent shall upon receipt of such notice from the Company promptly
notify each Revolving Credit Lender and the Issuing Lenders of the Company's
designation. Upon such approval and the satisfaction of the conditions specified
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in paragraph (b) of this Section, the Administrative Agent shall accept the
relevant Subsidiary Borrower Designation Letter whereupon the applicable
Subsidiary shall become a party to this Agreement as a Subsidiary Borrower and
entitled to borrow Revolving Credit Loans and to have Letters of Credit issued
for its own account hereunder.
(b) Conditions Precedent to Effectiveness of Designation. The effectiveness
of a designation by the Company of any Subsidiary as a Borrower hereunder shall
be subject to the receipt by the Administrative Agent of each of the following
documents (each of which shall be in satisfactory to the Administrative Agent in
form and substance): (i) a Subsidiary Borrower Designation Letter, duly
completed and executed by the Company and the applicable Subsidiary, delivered
to the Administrative Agent at least five Business Days before the date on which
such Subsidiary is proposed to become a Borrower; and (ii) such opinions,
documents and certificates as the Administrative Agent may reasonably request
(including certified copies of the organizational documents of such Subsidiary
and of resolutions of its board of directors authorizing such Subsidiary
becoming a Borrower hereunder, and of all documents evidencing all other
necessary corporate or other action required with respect to such Subsidiary
becoming party to this Agreement) that are consistent with conditions for the
Loan Parties set forth in Section 5.01.
(c) Termination of Subsidiary Borrower. The Company may, at any time at
which no Revolving Credit Loans or any other amounts hereunder or under any
other Loan Documents shall be outstanding to, nor any Letters of Credit shall be
outstanding for the account of, any Subsidiary Borrower, terminate such
Subsidiary Borrower as a Borrower hereunder by delivering an executed notice
thereof (each a "Termination Letter"), substantially in the form of Exhibit E-2,
to the Administrative Agent. Any Termination Letter furnished hereunder shall be
effective upon receipt thereof by the Administrative Agent (which shall promptly
so notify the Revolving Credit Lenders and the Issuing Lenders), whereupon all
commitments of the Revolving Credit Lenders to make Revolving Credit Loans to,
and all obligations of the Issuing Lenders to issue Letters of Credit for the
account of, such Subsidiary Borrower and all of rights of such Subsidiary
Borrower hereunder shall terminate and such Subsidiary Borrower shall cease to
be a Borrower hereunder. Notwithstanding the foregoing, the delivery of a
Termination Letter with respect to any Subsidiary Borrower shall not terminate
(i) any obligation of such Subsidiary Borrower that remains unpaid at the time
of such delivery or (ii) the obligations of the Company under Article III with
respect to any such unpaid obligations.
ARTICLE III
GUARANTEE
SECTION 3.01. The Guarantee. (a) The Company hereby guarantees to each
Lender and the Administrative Agent and their respective successors and assigns
the prompt payment in full when due (whether at stated maturity, by acceleration
or otherwise) of the Subsidiary Borrower Obligations, in each case strictly in
accordance with the terms thereof (such obligations being herein collectively
called the "Subsidiary Borrower Guaranteed Obligations"). The Company hereby
further agrees that if any Subsidiary Borrower shall fail to pay in full when
due (whether at stated maturity, by acceleration or otherwise) any of such
Subsidiary Borrower Guaranteed Obligations, the Company will promptly pay the
same, without any demand or notice whatsoever, and that in the case of any
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extension of time of payment or renewal of any of such Subsidiary Borrower
Guaranteed Obligations, the same will be promptly paid in full when due (whether
at extended maturity, by acceleration or otherwise) in accordance with the terms
of such extension or renewal.
(b) Each Subsidiary Guarantor hereby jointly and severally guarantees to
each Lender and the Administrative Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the Borrower Obligations (other than such
obligations, if any, of such Subsidiary Guarantor), in each case strictly in
accordance with the terms thereof (such obligations being herein collectively
called the "Borrower Guaranteed Obligations"). The Subsidiary Guarantors hereby
further jointly and severally agree that if any such Borrower shall fail to pay
in full when due (whether at stated maturity, by acceleration or otherwise) any
of such Borrower Guaranteed Obligations, the Subsidiary Guarantors will promptly
pay the same, without any demand or notice whatsoever, and that in the case of
any extension of time of payment or renewal of any of such Borrower Guaranteed
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, by acceleration or otherwise) in accordance with the terms of
such extension or renewal.
SECTION 3.02. Obligations Unconditional. The obligations of the Guarantors
under Section 3.01 are absolute and unconditional, and (in the case of the
Subsidiary Guarantors) joint and several, irrespective of the value,
genuineness, validity, regularity or enforceability of the obligations of the
other Loan Parties under this Agreement or any other agreement or instrument
referred to herein, or any substitution, release or exchange of any other
guarantee of or security for any of their respective Guaranteed Obligations,
and, to the fullest extent permitted by applicable law, irrespective of any
other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor, it being the intent of
this Section that the obligations of the Guarantors hereunder shall be absolute
and unconditional under any and all circumstances. Without limiting the
generality of the foregoing, it is agreed that the occurrence of any one or more
of the following shall not alter or impair the liability of the Guarantors
hereunder, which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the Guarantors, the
time for any performance of or compliance with any of their respective
Guaranteed Obligations shall be extended, or such performance or compliance
shall be waived;
(ii) any of the acts mentioned in any of the provisions of this Agreement
or any other agreement or instrument referred to herein shall be done or
omitted;
(iii) the maturity of any of their respective Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this Agreement or
any other agreement or instrument referred to herein shall be waived or any
other guarantee of any of their respective Guaranteed Obligations or any
security therefor shall be released or exchanged in whole or in part or
otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected.
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The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Lender exhaust any right, power or remedy or proceed against the
Company under this Agreement or any other agreement or instrument referred to
herein, or against any other Person under any other guarantee of, or security
for, any of their respective Guaranteed Obligations.
SECTION 3.03. Reinstatement. The obligations of each Guarantor under this
Article shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of the other Borrowers in respect of the
relevant Guaranteed Obligations is rescinded or must be otherwise restored by
any holder of any of such Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and each Guarantor
agrees that it will indemnify the Administrative Agent and each Lender on demand
for all reasonable costs and expenses (including fees of counsel) incurred by
the Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
SECTION 3.04. Subrogation. Each Guarantor hereby agrees that, until the
payment and satisfaction in full of all Guaranteed Obligations and the
expiration and termination of the Commitments of the Lenders under this
Agreement, it shall not exercise any right or remedy arising by reason of any
performance by it of its guarantee in Section 3.01, whether by subrogation or
otherwise, against the Company or any other guarantor of any of the Guaranteed
Obligations or any security for any of the Guaranteed Obligations.
SECTION 3.05. Remedies. Each Guarantor agrees that, as between such
Guarantor and the Lenders, the obligations of the Borrowers under this Agreement
may be declared to be forthwith due and payable as provided in Article VIII (and
shall be deemed to have become automatically due and payable in the
circumstances provided in Article VIII) for purposes of Section 3.01
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against any Borrower and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by any Borrower) shall forthwith
become due and payable by such Guarantor for purposes of Section 3.01.
SECTION 3.06. Instrument for the Payment of Money. Each Guarantor hereby
acknowledges that the guarantee in this Article constitutes an instrument for
the payment of money, and consents and agrees that any Lender or the
Administrative Agent, at its sole option, in the event of a dispute by such
Guarantor in the payment of any moneys due hereunder, shall have the right to
proceed by motion for summary judgment in lieu of complaint pursuant to N.Y.
Civ. Prac. L&R ss. 3213.
SECTION 3.07. Continuing Guarantee. The guarantee in this Article is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
SECTION 3.08. Rights of Contribution. The Subsidiary Guarantors hereby
agree, as between themselves, that if any Subsidiary Guarantor shall become an
Excess Funding Guarantor (as defined below) by reason of the payment by such
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Subsidiary Guarantor of any Guaranteed Obligations, then each other Subsidiary
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
next sentence), pay to such Excess Funding Guarantor an amount equal to such
Subsidiary Guarantor's Pro Rata Share (as defined below and determined, for this
purpose, without reference to the properties, debts and liabilities of such
Excess Funding Guarantor) of the Excess Payment (as defined below) in respect of
such Guaranteed Obligations. The payment obligation of a Subsidiary Guarantor to
any Excess Funding Guarantor under this Section 3.08 shall be subordinate and
subject in right of payment to the prior payment in full of the obligations of
such Subsidiary Guarantor under the other provisions of this Article III and
such Excess Funding Guarantor shall not exercise any right or remedy with
respect to such excess until payment and satisfaction in full of all of such
obligations.
For purposes of this Section 3.08, (i) "Excess Funding Guarantor" means, in
respect of any Guaranteed Obligations, a Subsidiary Guarantor that has paid an
amount in excess of its Pro Rata Share of such Guaranteed Obligations, (ii)
"Excess Payment" means, in respect of any Guaranteed Obligations, the amount
paid by an Excess Funding Guarantor in excess of its Pro Rata Share of such
Guaranteed Obligations and (iii) "Pro Rata Share" means, for any Subsidiary
Guarantor, the ratio (expressed as a percentage) of (x) the amount by which the
aggregate fair saleable value of all properties of such Subsidiary Guarantor
(excluding any shares of stock or other equity interest of any other Subsidiary
Guarantor) exceeds the amount of all the debts and liabilities of such
Subsidiary Guarantor (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of such Subsidiary
Guarantor hereunder and any obligations of any other Subsidiary Guarantor that
have been Guaranteed by such Subsidiary Guarantor) to (y) the amount by which
the aggregate fair saleable value of all properties of the Company and all of
the Subsidiary Guarantors exceeds the amount of all the debts and liabilities
(including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of the Obligors hereunder and under the other Loan
Documents) of all of the Subsidiary Guarantors, determined (A) with respect to
any Subsidiary Guarantor that is a party hereto on the Effective Date, as of the
Effective Date, and (B) with respect to any other Subsidiary Guarantor, as of
the date such Subsidiary Guarantor becomes a Subsidiary Guarantor hereunder.
SECTION 3.09. General Limitation on Guarantee Obligations. In
any action or proceeding involving any state corporate law, or any state or
Federal bankruptcy, insolvency, reorganization or other law affecting the rights
of creditors generally, if the obligations of any Subsidiary Guarantor under
Section 3.01 would otherwise be held or determined to be void, invalid or
unenforceable, or subordinated to the claims of any other creditors, on account
of the amount of its liability under Section 3.01, then, notwithstanding any
other provision hereof to the contrary, the amount of such liability shall,
without any further action by such Subsidiary Guarantor, any Lender, the
Administrative Agent or any other Person, be automatically limited and reduced
to the highest amount that is valid and enforceable and not subordinated to the
claims of other creditors as determined in such action or proceeding.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each of the Company and the Subsidiary Borrowers represents and warrants
(as to itself and each of its Subsidiaries) to the Lenders that:
SECTION 4.01. Organization; Powers. Each of the Company and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 4.02. Authorization; Enforceability. The Transactions are within
each Borrower's and each other Loan Party's corporate powers and have been duly
authorized by all necessary corporate and, if required, by all necessary
shareholder action. This Agreement and each of the other Loan Documents have
been duly executed and delivered by each Loan Party party thereto and
constitutes, or when executed and delivered by such Loan Party will constitute,
a legal, valid and binding obligation of such Loan Party, enforceable against
each Loan Party in accordance with its terms, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 4.03. Governmental Approvals; No Conflicts. The Transactions (a) do
not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except for (i) such as have been
obtained or made and are in full force and effect and (ii) filings and
recordings in respect of the Liens created pursuant to the Security Documents,
(b) will not violate any Requirement of Law, (c) will not violate or result in a
default under any Contractual Obligation upon the Company and its Subsidiaries
or its or their respective assets, or give rise to a right thereunder to require
any payment to be made by the Company or any of its Subsidiaries, and (d) except
for the Liens created pursuant to the Security Documents, will not result in the
creation or imposition of any Lien on any asset of the Company or any of its
Subsidiaries.
SECTION 4.04. Financial Condition; No Material Adverse Change.
-----------------------------------------------
(a) Financial Condition. The Company has heretofore furnished to the
Lenders its consolidated balance sheet and statements of income, stockholders'
equity and cash flows as of and for the fiscal years ended July 2, 2006 and July
1, 2007, in each case reported on by Ernst & Young LLP. Such financial
statements present fairly, in all material respects, the financial position and
results of operations and cash flows of the Company and its Subsidiaries as of
such dates and for such periods in accordance with GAAP. There are no
liabilities of the Company or any of its Subsidiaries, fixed or contingent,
which are material in relation to the consolidated financial condition of the
Company that are not reflected in the most recent consolidated financial
statements of the Company delivered pursuant to this Section or Section 6.01(a)
or (b) or in the notes thereto, other than liabilities arising in the ordinary
course of business since the date of such financial statements. The Pro Forma
Financial Statements, copies of which have heretofore been furnished to each
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Lender, have been prepared giving effect (as if such events had occurred on such
date or at the beginning of such period, as the case may be) to the Napco
Acquisition and the DesignPac Acquisition and all other transactions that would
be required to be given pro forma effect by Regulation S-X promulgated under the
Exchange Act (including other adjustments, if any, as agreed between the Company
and the Administrative Agent). The Pro Forma Financial Statements have been
prepared in good faith, based on assumptions believed by the Company to be
reasonable as of the date of preparation thereof, and present fairly in all
material respects on a pro forma basis and in accordance with GAAP the estimated
financial position of the Company and its Subsidiaries as at the date thereof
and their estimated results of operations for the periods covered thereby,
assuming that the events specified in the preceding sentence had actually
occurred at such date or at the beginning of the periods covered thereby.
(b) No Material Adverse Change. Since July 1, 2007, there has not occurred
any event, development or circumstance that has had or could reasonably be
expected to have a Material Adverse Effect.
SECTION 4.05. Properties.
----------
(a) Property Generally. Each of the Company and its Subsidiaries has good
title to, or valid leasehold interests in, all its real and personal property
material to its business, subject only to Liens permitted by Section 7.02 and
except for minor defects in title that do not interfere with its ability to
conduct its business as currently conducted or to utilize such properties for
their intended purposes. The Liens granted by the Security Documents constitute
valid perfected first priority Liens on the properties and assets covered by the
Security Documents, to the extent required by the Security Documents and subject
to no prior or equal Lien except those Liens permitted by Section 7.02.
(b) Intellectual Property. Each of the Company and its Subsidiaries owns,
or is licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Company and its Subsidiaries does not infringe upon the rights of any other
Person except for any such infringements that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 4.06. Litigation and Environmental Matters.
------------------------------------
(a) Actions, Suits and Proceedings. There are no actions, suits or
proceedings by or before any arbitrator or Governmental Authority pending
against or, to the knowledge of the Company, threatened against or affecting the
Company or any of its Subsidiaries that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect (other than the Disclosed Matters) or that involve this
Agreement or the Transactions.
(b) Environmental Matters. Except for the Disclosed Matters and except with
respect to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Company nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any facts that could reasonably
be expected to result in any Environmental Liability.
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(c) Disclosed Matters. Since the date of this Agreement, there has been no
change in the status of the Disclosed Matters that, individually or in the
aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
SECTION 4.07. Compliance with Laws and Contractual Obligations. Each of the
Company and its Subsidiaries is in compliance with all Requirements of Law
applicable to it or its property or all Contractual Obligations binding upon it
or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.08. Investment Company Act Status. Neither the Company nor its
Subsidiaries is an "investment company" as defined in, or subject to regulation
under, the Investment Company Act of 1940, as amended.
SECTION 4.09. Taxes. Each of the Company and its Subsidiaries has timely
filed or caused to be filed all Tax returns and reports required to have been
filed and has paid or caused to be paid all Taxes required to have been paid by
it, except (a) Taxes that are being contested in good faith by appropriate
proceedings and for which the Company or such Subsidiary, as applicable, has set
aside on its books adequate reserves or (b) to the extent that the failure to do
so could not reasonably be expected to result in a Material Adverse Effect.
SECTION 4.10. ERISA. Except with respect to any matters that, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect, (a) no ERISA Event has occurred or is reasonably expected to
occur and (b) each Pension Plan has complied with the applicable provisions of
ERISA and the Code. The present value of all accumulated benefit obligations
under each Pension Plan (based on the assumptions used for purposes of Statement
of Financial Accounting Standards No. 87) does not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market
value of the assets of such Pension Plan by an amount that could not reasonably
be expected to result in a Material Adverse Effect.
SECTION 4.11. Disclosure. The Loan Parties have disclosed to the Lenders
all agreements, instruments and corporate or other restrictions to which it or
any of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the written reports, financial statements,
certificates or other written information (other than projections, other forward
looking information and information of a general economic and/or industry
specific nature) furnished by or on behalf of the Company or any Subsidiary to
the Administrative Agent or any Lender in connection with the negotiation of
this Agreement and the other Loan Documents or delivered hereunder or thereunder
(as modified or supplemented by other information so furnished) taken as a whole
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not materially misleading; provided that, with
respect to projected financial information, each Borrower represents only that
such information was prepared in good faith based upon reasonable assumptions
believed to be reasonable at the time of preparation thereof.
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SECTION 4.12. Use of Credit. Neither the Company nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of
any extension of credit hereunder will be used to buy or carry any Margin Stock.
SECTION 4.13. Labor Matters. Except with respect to any Disclosed Matters
and except with respect to any matters that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, (a) no
collective bargaining agreement or other labor contract will expire during the
term of this Agreement, (b) to the Company's knowledge, no union or other labor
organization is seeking to organize, or to be recognized as bargaining
representative for, a bargaining unit of employees of the Company or any of its
Subsidiaries, (c) there is no pending or, to the Company's knowledge, threatened
strike, work stoppage, material unfair labor practice claim or charge,
arbitration or other labor dispute against or affecting the Company or any of
its Subsidiaries or their representative employees and (d) there are no actions,
suits, charges, demands, claims, counterclaims or proceedings pending or, to the
best of the Company's knowledge, threatened against the Company or any of its
Subsidiaries, by or on behalf of, or with, its employees.
SECTION 4.15. Indebtedness. Schedule 7.01 is a complete and correct list of
each credit agreement, loan agreement, indenture, purchase agreement, guarantee,
letter of credit or other arrangement providing for or otherwise relating to any
Indebtedness or any extension of credit (or commitment for any extension of
credit) to, or guarantee by, the Company or any of its Subsidiaries, in each
case, outstanding as of the date hereof, and the aggregate principal or face
amount outstanding or that may become outstanding under each such arrangement is
correctly described in Schedule 7.01.
SECTION 4.16. Liens. Schedule 7.02 is a complete and correct list of each
Lien securing Indebtedness of any Person outstanding as of the date hereof and
covering any property of the Company or any of its Subsidiaries, and the
aggregate Indebtedness secured (or that may be secured) by each such Lien and
the property covered by each such Lien is correctly described in Schedule 7.02.
SECTION 4.17. Subsidiaries. Schedule 4.17 is a complete and correct list of
all of the Subsidiaries of the Company as of the date hereof, together with, for
each such Subsidiary, (i) the jurisdiction of organization of such Subsidiary,
(ii) each Person holding ownership interests in such Subsidiary and (iii) the
nature of the ownership interests held by each such Person and the percentage of
ownership of such Subsidiary represented by such ownership interests. Except as
disclosed in Schedule 4.17, (x) each of the Company and its Subsidiaries owns,
free and clear of Liens (other than Liens created pursuant to the Security
Documents), and has the unencumbered right to vote, all outstanding ownership
interests in each Person shown to be held by it in Schedule 4.17, (y) all of the
issued and outstanding Capital Stock of each such Person organized as a
corporation is validly issued, fully paid and nonassessable and (z) there are no
outstanding Equity Rights with respect to such Person.
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ARTICLE V
CONDITIONS
SECTION 5.01. Conditions to Effective Date. The effectiveness of this
Agreement and the obligations of the Lenders to make the Loans and of the
Issuing Lenders to issue Letters of Credit hereunder shall not become effective
until the date on which the Administrative Agent shall have received each of the
following documents, each of which shall be satisfactory to the Administrative
Agent in form and substance (or such condition shall have been waived in
accordance with Section 10.02):
(a) Executed Counterparts. From each party hereto either (i) a counterpart
of this Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page to this Agreement) that such party
has signed a counterpart of this Agreement.
(b) Opinion of Counsel to the Loan Parties. A written opinion (addressed to
the Administrative Agent and the Lenders and dated the Effective Date) of
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, substantially in
the form of Exhibit F and of such other counsel for the Loan Parties
satisfactory to the Administrative Agent in form and substance reasonably
satisfactory to the Administrative Agent (if requested by the Administrative
Agent), and covering such other matters relating to the Loan Parties, this
Agreement or the Transactions as the Administrative Agent shall reasonably
request (and the Company hereby instructs such counsel to deliver such
opinion to the Lenders and the Administrative Agent).
(c) Opinion of Special New York Counsel to JPMCB. A written opinion
(addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel
to JPMCB, substantially in the form of Exhibit G (and JPMCB hereby instructs
such counsel to deliver such opinion to the Lenders).
(d) Corporate Documents. Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of each Loan Party, the
authorization of the Transactions and any other legal matters relating to the
Loan Parties, this Agreement or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(e) Officer's Certificate. A certificate, dated the Effective Date and
signed by a senior executive officer of the Company, to the effect that (a)
the representations and warranties set forth in Article IV shall be true and
correct on the Effective Date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such specific
date), and (b) immediately after giving effect to the extensions of credit
hereunder on the Effective Date, no Default shall have occurred and be
continuing.
(f) Security Agreement. The Security Agreement, duly executed and delivered
by the Company and the Administrative Agent, together with (i) certificates,
if any, representing the Pledged Equity accompanied by undated stock powers
executed in blank and instruments evidencing the Pledged Debt indorsed in
blank, and (ii) each document (including, without limitation, any Uniform
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Commercial Code financing statement) required by the Security Documents or
under law or reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the Administrative
Agent, for the benefit of the Lenders, a perfected Lien on the collateral
described therein, prior and superior in right to any other Person (other
than with respect to Liens expressly permitted by Section 7.02), which shall
have been delivered to the Administrative Agent be in proper form for
filing, registration or recordation (it being understood that no account
control agreements or landlord waivers shall be required to be obtained or
otherwise delivered by any of the Loan Parties). In addition, the
Administrative Agent shall have received the results of recent lien searches
in each relevant jurisdiction with respect to the Company and its
subsidiaries, and such searches shall reveal no Liens on any of the assets of
the Company or its subsidiaries except for Liens permitted by Section 7.02
or Liens to be discharged pursuant to documentation or arrangements
reasonably satisfactory to the Administrative Agent.
(h) Financial Information. (i) The consolidated financial statements of the
Company referred to in the first sentence in Section 4.04(a); and (ii) an
estimated pro forma consolidated balance sheet of the Company and an
estimated pro forma consolidated income statement of the Company, each as
of June 30,2008, giving pro forma effect to the Napco Acquisition and
the DesignPac Acquisition (the "Pro Forma Financial Statements").
(i) Insurance. Evidence that all insurance required to be maintained
pursuant to the Loan Documents has been obtained and is in effect and that
the Administrative Agent has been named as loss payee under each insurance
policy with respect to such insurance as to which the Administrative Agent
shall have reasonably requested to be so named.
(j) Borrowing Request. A Borrowing Request or notice of issuance of Letter
of Credit, as applicable, relating to the initial credit extensions
hereunder.
(k) Fees and Expenses. All fees and expenses required to be paid hereunder
and invoiced before the Effective Date shall have been paid in full in cash.
(l) Execution by Lenders. This Agreement shall have been executed and
delivered by each Increasing Revolving Credit Lender and each Lender with an
A-1 Term Loan Commitment hereunder, and the Administrative Agent shall have
received written consents from the Existing Lenders which constitute Required
Lenders under the Existing Credit Agreement to the execution and delivery of
this Agreement (it being agreed that the entering into this Agreement by such
Existing Lender shall constitute such written consent).
(m) The Borrowers shall have paid all accrued interest and fees under the
Existing Credit Agreement as of the Effective Date and shall be deemed to
have prepaid and reborrowed as ABR Loans all outstanding Revolving Credit
Loans under the Existing Credit Agreement as of the Effective Date. In
addition, in order to ensure that all outstanding Revolving Credit Loans
are held ratably by the Revolving Credit Lenders as of the Effective Date
after giving effect to the increase in the Revolving Credit Commitments
pursuant to this Agreement, the Revolving Credit Lenders shall make such
payments to each other (through the Administrative Agent and as notified
by the Administrative Agent) as may be required to effect the foregoing.
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(n) Other Documents. Such other closing certificates as the Administrative
Agent may reasonably request.
SECTION 5.02. Each Credit Event. The obligation of each Lender to make any
Loan, and of the Issuing Lenders to issue, amend, renew or extend any Letter of
Credit, is additionally subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrowers set forth in
Article IV, and of each Loan Party in each of the other Loan Documents to
which it is a party, shall be true and correct on and as of the date of such
Loan or the date of issuance, amendment, renewal or extension of such Letter
of Credit, as applicable (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such specific
date); and
(b) at the time of and immediately after giving effect to such Loan or the
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a
Letter of Credit shall be deemed to constitute a representation and warranty by
the Company on the date thereof as to the matters specified in clauses (a) and
(b) of the immediately preceding sentence.
ARTICLE VI
AFFIRMATIVE COVENANTS
---------------------
Until the Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees payable hereunder shall have been paid in
full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, each Borrower (on behalf of itself and
each of its Subsidiaries) covenants and agrees with the Lenders that:
SECTION 6.01. Financial Statements and Other Information. The Company will
furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Company, the
audited consolidated balance sheet and related statements of income,
stockholders' equity and cash flows of the Company and its Subsidiaries as of
the end of and for such year, setting forth in each case in comparative form
the figures for the previous fiscal year, all reported on by Ernst & Young
LLP or other independent public accountants of recognized national standing
(without a "going concern" or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect that
such consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the Company
and its Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;
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(b) within 45 days after the end of the first three fiscal quarters of the
Company, the consolidated balance sheets and related consolidated statements
of income and cash flows of the Company and its Subsidiaries as of the end of
and for such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for (or, in the
case of the balance sheet, as of the end of) the corresponding period or
periods of the previous fiscal year, all certified by a Responsible Officer
as presenting fairly in all material respects the financial condition
and results of operations of the Company and its Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject
to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a)
or (b) of this Section, a certificate of a Responsible Officer (i) certifying
as to whether a Default has occurred and, if a Default has occurred,
specifying the details thereof and any action taken or proposed to be taken
with respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Section 7.11 and (iii) stating whether any
change in GAAP or in the application thereof has occurred since the date of
the most recent audited financial statements of the Company referred to in
Section 4.04(a) and, if any such change has occurred, specifying the effect
of such change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under clause (a)
of this Section, a certificate of the accounting firm that reported on such
financial statements stating whether they obtained knowledge during the
course of their examination of such financial statements of any Default
(which certificate may be limited to the extent required by accounting
rules or guidelines);
(e) promptly upon receipt thereof, copies of all other reports submitted to
the Company by its independent certified public accountants in connection
with any annual or interim audit or review of the books of the Company made
by such accountants;
(f) annually, as soon as available, but in any event within 30 days after
the first day of each fiscal year of the Company, an annual budget of the
Company and its Subsidiaries for such fiscal year in the same form prepared
for the Company's board of directors or in such other form reasonably
satisfactory to the Administrative Agent;
(g) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
Company or any Subsidiary with the SEC, or any Governmental Authority
succeeding to any or all of the functions of said Commission, or with any
national securities exchange, or distributed by the Company to its
shareholders generally, as the case may be;
(h) promptly following receipt thereof, copies of any documents described
in Sections 101(k) or 101(l) of ERISA that any Borrower or any ERISA
Affiliate may request with respect to any Multiemployer Plan; provided,
that if the Borrowers or any of their ERISA Affiliates have not requested
such documents or notices from the administrator or sponsor of the applicable
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Multiemployer Plan, then, upon reasonable request of the Administrative
Agent, the Borrowers and/or their ERISA Affiliates shall promptly make a
request for such documents or notices from such administrator or sponsor and
the Borrower shall provide copies of such documents and notices to the
Administrative Agent promptly after receipt thereof; and
(i) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Company or any Subsidiary, or compliance with the terms of this Agreement and
the other Loan Documents, as the Administrative Agent or any Lender may
reasonably request.
Documents required to be delivered pursuant to Sections 6.01(a), (b) or (g) (to
the extent any such documents are included in materials otherwise filed with the
SEC) shall be deemed to have been delivered on the date (i) on which the Company
posts such documents or provides a link thereto on the Company's website or (ii)
on which such documents are posted on the Company's behalf on
Intralinks/IntraAgency or another relevant website, if any, to which each Lender
and the Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent); provided that the
Company shall notify the Administrative Agent (by telecopier or electronic mail)
of the posting of any such documents and provide the Administrative Agent with
electronic mail versions of such documents.
SECTION 6.02. Notices of Material Events. The Company will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Company or any of its Affiliates, other than disputes in the ordinary course
of business or, whether or not in the ordinary of business, disputes
involving amounts exceeding $10,000,000;
(c) the occurrence of any ERISA Event that, individually or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in a Material Adverse Effect; and
(d) any other development that results in, or could reasonably be expected
to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Responsible Officer setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect
thereto.
SECTION 6.03. Existence; Conduct of Business. The Company will, and will
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 7.03.
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SECTION 6.04. Payment of Taxes and Other Obligations. The Company will, and
will cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Company or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 6.05. Maintenance of Properties. The Company will, and will cause
each of its Subsidiaries to, keep and maintain all property material to the
conduct of its business in good working order and condition, ordinary wear and
tear excepted.
SECTION 6.06. Maintenance of Insurance. The Company will, and will cause
each of its Subsidiaries to, maintain, with financially sound and reputable
insurance companies, insurance in such amounts and against such risks as are
customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations; provided that the Company may
maintain self-insurance reasonable and customary for similarly situated Persons.
SECTION 6.07. Books and Records. The Company will, and will cause each of
its Subsidiaries to, keep proper books of record and account in which full, true
and correct entries are made of all dealings and transactions in relation to its
business and activities.
SECTION 6.08. Inspection Rights. The Company will, and will cause each of
its Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at the expense of the Company and at such reasonable times and
as often as reasonably requested; provided that any such request and visit by
any Lender shall be coordinated through the Administrative Agent.
SECTION 6.09. Compliance with Laws and Contractual Obligations. The Company
will, and will cause each of its Subsidiaries to, comply with all Requirements
of Law (including any Environmental Laws) applicable to it or its property, and
all Contractual Obligations binding upon it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 6.10. Use of Proceeds and Letters of Credit. The proceeds of the
A-1 Term Loans, the Revolving Credit Loans, the Letters of Credit issued
hereunder and any Incremental Term Loans, will be used for general corporate
purposes of the Company and its Subsidiaries (including for the consummation of
any Acquisitions not prohibited by this Agreement). No part of the proceeds of
any Loan will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the Regulations of the Board, including
Regulations U and X.
SECTION 6.11. Additional Subsidiary Guarantors; Further Assurances.
----------------------------------------------------
(a) Subsidiary Guarantors. The Company will take such action, and will
cause each of its Domestic Subsidiaries to take such action, from time to time
as shall be necessary to ensure that all such Domestic Subsidiaries of the
Company are "Subsidiary Guarantors" hereunder. Without limiting the generality
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of the foregoing, in the event that the Company or any of its Subsidiaries shall
form or acquire any new Domestic Subsidiary that shall constitute a Subsidiary
hereunder, the Company and its Subsidiaries will cause such new Subsidiary to:
(i) become a "Subsidiary Guarantor" hereunder, and a "Securing Party" under
the Security Agreement pursuant to a Subsidiary Joinder Agreement;
(ii) cause such Domestic Subsidiary to take such action (including
delivering such shares of stock, executing and delivering such Uniform
Commercial Code financing statements) as shall be necessary to create and
perfect valid and enforceable first priority Liens on substantially all of
the personal property of such new Subsidiary as collateral security for
the obligations of such new Subsidiary hereunder to the extent required
pursuant to the Security Agreement; and
(iii) deliver such proof of corporate action, incumbency of officers,
opinions of counsel and other documents as is consistent with those delivered
by the Loan Parties pursuant to Section 5.01 on the Effective Date as
the Administrative Agent shall reasonably request.
(b) Further Assurances. The Company will, and will cause each of its
Subsidiaries to, take such action from time to time as shall reasonably be
requested by the Administrative Agent to effectuate the purposes and objectives
of this Agreement. Without limiting the foregoing, in the event that any
additional Capital Stock shall be issued by any Subsidiary, the Loan Party
agrees forthwith to deliver to the Administrative Agent pursuant to the Security
Agreement the certificates evidencing such shares of stock, accompanied by
undated stock powers executed in blank and to take such other action as the
Administrative Agent shall request to perfect the security interest created
therein pursuant to the Security Agreement.
ARTICLE VII
NEGATIVE COVENANTS
------------------
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full and
all Letters of Credit have expired or terminated and all LC Disbursements shall
have been reimbursed, each Borrower (on behalf of itself and each of its
Subsidiaries) covenants and agrees with the Lenders that:
SECTION 7.01. Indebtedness. The Company will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness created hereunder and the other Loan Documents;
(b) Indebtedness existing on the date hereof and set forth on Schedule
7.01;
(c) (i) Indebtedness of the Company to any Loan Party, (ii) Indebtedness of
any Loan Party (other than the Company) to the Company or any other Loan Party
and (iii) Indebtedness of the Company or any Subsidiary to any Subsidiary that
is not a Loan Party; provided that the aggregate principal amount of
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Indebtedness incurred by the Loan Parties to any Subsidiary that is not a Loan
Party after the date hereof, together with the aggregate amount of Investments
by the Loan Parties in such Subsidiaries made under Section 7.06(c)(ii) after
the date hereof, shall not exceed $5,000,000 at any time outstanding;
(d) Indebtedness of the Borrower or any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations and any Indebtedness assumed in connection
with the acquisition of any such assets or secured by a Lien on any such assets
prior to the acquisition thereof, and extensions, renewals and replacements of
any such Indebtedness that do not increase the outstanding principal amount
thereof; provided that (i) such Indebtedness is incurred prior to, at the time
of or within 90 days after such acquisition or the completion of such
construction or improvement and (ii) the sum of the aggregate principal amount
of Indebtedness permitted by this clause (d) and clause (e) of this Section
shall not exceed $10,000,000 at any time outstanding;
(e) Indebtedness of any Person that becomes a Subsidiary after the date
hereof; provided that (i) such Indebtedness exists at the time such Person
becomes a Subsidiary and is not created in contemplation of or in connection
with such Person becoming a Subsidiary and (ii) the sum of the aggregate
principal amount of Indebtedness permitted by this clause (e) and clause (d) of
this Section shall not exceed $10,000,000 at any time outstanding;
(f) Indebtedness incurred after the date hereof by the Company or any
Subsidiary not exceeding an aggregate principal amount of $20,000,000 at any
time outstanding for the purpose of financing the expansion of the facilities of
the Company or its Subsidiaries; provided that, any such Indebtedness shall (x)
mature at least six months after the A-1 Term Loan Maturity Date, (y) have a
weighted average life to maturity not shorter than the Term Loans and (z) not
contain any covenants or events of default more onerous than those set forth in
this Agreement;
(g) other Indebtedness in an aggregate principal amount not exceeding
$25,000,000 at any time outstanding;
(h) Indebtedness secured by a Lien permitted under Section 7.02(g) in an
aggregate principal amount not exceeding $10,000,000 at any time outstanding;
and
(i) Indebtedness incurred after the date hereof by the Company or any
Subsidiary not exceeding an aggregate principal amount of $20,000,000 at any
time outstanding pursuant to Sale/Leaseback Transactions permitted under Section
7.12.
SECTION 7.02. Liens. The Company will not, and will not permit any of its
Subsidiaries to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(a) Liens created pursuant to the Loan Documents;
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(b) Permitted Liens;
(c) any Lien on any property or asset of the Company or any of its
Subsidiaries existing on the date hereof and set forth on Schedule 7.02;
provided that (i) no such Lien shall extend to any other property or asset of
the Company or any of its Subsidiaries and (ii) any such Lien shall secure only
those obligations which it secures on the date hereof and extensions, renewals,
replacements and combinations thereof that do not increase the outstanding
principal amount thereof or commitment therefor, in each case, as in effect on
the date hereof;
(d) Liens on fixed or capital assets acquired, constructed or improved by
the Company or any Subsidiary; provided that (i) such security interests secure
(x) Indebtedness permitted by Section 7.01(d), (y) Indebtedness permitted by
Section 7.01(f) and/or (z) Indebtedness permitted by Section 7.01(g) so long as
such Indebtedness permitted by Section 7.01(g) does not exceed an aggregate
principal amount of $15,000,000 at any time outstanding, (ii) such security
interests and the Indebtedness secured thereby are incurred prior to, at the
time of or within 90 days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby does not
exceed 100% of the cost of acquiring, constructing or improving such fixed or
capital assets and (iv) such security interests shall not apply to any other
property or assets of the Company or any Subsidiary;
(e) any Lien existing on any property or asset prior to the acquisition
thereof by the Company or any Subsidiary or existing on any property or asset of
any Person that becomes a Subsidiary after the date hereof prior to the time
such Person becomes a Subsidiary; provided that (i) such security interests
secure Indebtedness permitted by Section 7.01(e), (ii) such Lien is not created
in contemplation of or in connection with such acquisition or such Person
becoming a Subsidiary, as the case may be, (iii) such Lien shall not apply to
any other property or assets of the Company or any Subsidiary and (iv) such Lien
shall secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case may be and
extensions, renewals and replacements thereof that do not increase the original
outstanding principal amount thereof;
(f) Liens on deposit accounts required to be established in connection
with, and securing, the financing permitted by Section 7.01(f)(i) and monies on
deposit in such accounts; and
(g) Liens on real property acquired in the Napco Acquisition; provided that
(i) such Liens and the Indebtedness secured thereby are incurred within 365 days
after the closing date of such acquisition and (ii) such security interests
shall not apply to any other mortgaged property of the Company or any
Subsidiary.
SECTION 7.03. Mergers, Consolidations, Etc. The Company will not, and will
not permit any of its Subsidiaries to, enter into any transaction of merger or
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), except that:
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(a) any Subsidiary may be merged or consolidated with or into any Borrower,
so long as (i) if the Company is a party to such transaction, the Company is the
surviving entity or (ii) otherwise, any Subsidiary which is a Loan Party is the
surviving entity;
(b) any Subsidiary may be merged or consolidated with or into any other
Subsidiary, so long as if any Subsidiary party to such transaction is a Loan
Party, the surviving entity thereof is a Loan Party; and
(c) any Subsidiary may be dissolved or liquidated if the Company determines
in good faith such liquidation or dissolution is in the best interests of the
Company and not materially disadvantageous to the Lenders.
SECTION 7.04. Dispositions. The Company will not, and will not permit any
of its Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of,
in one transaction or a series of transactions, any part of its business or
property, whether now owned or hereafter acquired (including receivables and
leasehold interests), except:
(a) obsolete or worn-out property, tools or equipment no longer used or
useful in its business;
(b) any inventory or other property sold or disposed of in the ordinary
course of business and for fair consideration;
(c) the sale, conversion or other disposition of any stores or "flower
fulfillment centers" operated by the Company or any Subsidiary to franchisees
for fair consideration;
(d) any Subsidiary of the Company may sell, lease, transfer or otherwise
dispose of any or all of its property to the Company or any wholly owned
Subsidiary of the Company;
(e) the Capital Stock of any Subsidiary may be sold, transferred or
otherwise disposed of to the Company or any wholly owned Subsidiary of the
Company; and
(f) Dispositions of property by the Company or any Subsidiary having an
aggregate fair market value not exceeding $10,000,000; and
(g) Dispositions of property by the Company or any Subsidiary to effect
Sale/Leaseback Transactions permitted under Section 7.12.
SECTION 7.05. Lines of Business. The Company will not, and will not permit
any of its Subsidiaries to, engage to any material extent in any business other
than businesses of the type conducted by the Company and its Subsidiaries on the
date hereof and businesses reasonably related or incidental or ancillary
thereto.
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SECTION 7.06. Investments and Acquisitions. The Company will not, and will
not permit any of its Subsidiaries to, make or suffer to exist any Investment in
any Person or purchase or otherwise acquire (in one transaction or a series of
transactions) any assets of any other Person constituting a business unit,
except:
(a) Cash Equivalents;
(b) Investments (other than Investments permitted under clauses (a) and (c)
of this Section) existing on the date hereof and set forth on Schedule 7.06;
(c) (i) Investments by any Loan Party in any other Loan Party; and (ii)
Investments by the Company or any Subsidiary in any Subsidiary that is not a
Loan Party; provided that that the aggregate amount of Investments by the Loan
Parties in any Subsidiary that is not a Loan Party after the date hereof,
together with the aggregate principal amount of Indebtedness owing by any Loan
Party to such Subsidiaries incurred under Section 7.01(c)(iii) after the date
hereof, shall not exceed $5,000,000;
(d) Indebtedness permitted by Section 7.01;
(e) purchases of inventory and other property to be sold or used in the
ordinary course of business;
(f) Acquisitions after the date hereof by the Company or any other Loan
Party; provided that (i) the aggregate consideration (including assumed
Indebtedness, but excluding consideration in the form of Capital Stock of the
Company) for all such Acquisitions shall not exceed $100,000,000, (ii) if such
Acquisition is an acquisition of Capital Stock of a Person, such Acquisition
shall not be opposed by the board of directors (or similar governing body) of
such Person, (iii) no Default shall have then occurred and be continuing or
would result therefrom, (iv) after giving effect to such Acquisition on a pro
forma basis as if such Acquisition had occurred on the first day of the most
recent period of four consecutive fiscal quarters, the Consolidated Leverage
Ratio on the last day of such period would not have been greater than 2.50 to
1.0; provided that the Company shall be permitted to consummate Acquisitions
having aggregate consideration (including assumed Indebtedness, but excluding
consideration in the form of Capital Stock of the Company) not exceeding
$25,000,000 without complying with the requirements of this clause (iv); and (v)
prior to the consummation of any such Acquisition, the Administrative Agent
shall have received a certificate of a Responsible Officer setting forth the
calculations required to determine compliance with clause (iv) above (if
applicable) and certifying that the conditions set forth in this clause (f) with
respect to such Acquisition have been satisfied.
(g) Investments (including debt obligations) received by the Company and
its Subsidiaries in connection with the bankruptcy or reorganization of
suppliers and/or customers and in good faith settlement of delinquent
obligations of, and other disputes with, customers and/or suppliers arising in
the ordinary course of business;
(h) Investments under Swap Agreements permitted by Section 7.10;
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(i) bona fide advances to employees and officers of the Company and its
Subsidiaries for the purpose of paying payroll, travel and related expenses
incurred for proper business purposes of the Company or such Subsidiary;
(j) Investments received by the Company and its Subsidiaries in connection
with any Disposition permitted by Section 7.04;
(k) Investments held by any Person that becomes a Subsidiary after the date
hereof; provided that (i) such Investments exist at the time such Person becomes
a Subsidiary and are not created in contemplation of or in connection with such
Person becoming a Subsidiary and (ii) such Investments shall not be increased
after such time unless such increase is permitted by another clause of this
Section;
(l) Investments by the Company or any Subsidiary in the Capital Stock of
any other Person (other than any Acquisition) in an aggregate amount (valued at
cost) not exceeding $10,000,000; and
(m) other Investments in an aggregate amount (valued at cost) not exceeding
$20,000,000.
SECTION 7.07. Restricted Payments. The Company will not, and will not
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except that:
(a) the Company may declare and pay dividends with respect to its Capital
Stock payable solely in additional shares of its Capital Stock;
(b) the Company may make Restricted Payments after the date hereof in an
aggregate amount not exceeding $50,000,000; provided that, at the time of such
Restricted Payment and immediately after giving effect thereto, (i) no Default
shall have occurred and be continuing and (ii) (other than in respect of
purchases of Capital Stock of the Company not exceeding an aggregate amount of
$10,000,000 after the date hereof), the Consolidated Leverage Ratio shall not be
greater than 2.50 to 1.0; and
(c) the Company may pay cash dividends in respect of preferred Capital
Stock of the Company not exceeding an aggregate amount of $10,000,000 in any
fiscal year; provided that, at the time of such dividend and immediately after
giving effect thereto, (i) no Default shall have occurred and be continuing and
(ii) the Consolidated Leverage Ratio shall not be greater than 2.50 to 1.0;
provided that nothing herein shall be deemed to prohibit (x) the payment of
dividends by any Subsidiary of the Company to the Company or any other
Subsidiary of the Company or, if applicable, any minority shareholder of such
Subsidiary (in accordance with the percentage of the Capital Stock of such
Subsidiary owned by such minority shareholder) and (y) repurchases of Capital
Stock deemed to occur as a result of the surrender of such Capital Stock for
cancellation in connection with the exercise of stock options or warrants.
SECTION 7.08. Transactions with Affiliates. The Company will not, and will
not permit any of its Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except:
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(a) transactions in the ordinary course of business at prices and on terms
and conditions not less favorable to the Company or such Subsidiary than could
be obtained on an arm's-length basis from a Person that is not an Affiliate;
(b) transactions between or among the Company and its wholly-owned
Subsidiaries not involving any other Affiliate;
(c) any Investment permitted by Section 7.06;
(d) any Restricted Payment permitted by Section 7.07; and
(e) any Affiliate who is a natural person may serve as an employee or
director of any Borrower and receive reasonable compensation for his services in
such capacity.
SECTION 7.09. Restrictive Agreements. The Company will not, and will not
permit any of its Subsidiaries to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of the Company or any Subsidiary to
create, incur or permit to exist any Lien upon any of its property or assets, or
(b) the ability of any Subsidiary to pay dividends or other distributions with
respect to any shares of its Capital Stock or to make or repay loans or advances
to the Company or any other Subsidiary or to Guarantee Indebtedness of the
Company or any other Subsidiary; except:
(i) restrictions and conditions imposed by law or by this Agreement;
(ii) restrictions and conditions existing on the date hereof set forth on
Schedule 7.09 (but shall apply to any extension or renewal of, or any amendment
or modification expanding the scope of, any such restriction or condition);
(iii) customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale; provided that such
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder;
(iv) (with respect to clause (a) above) (x) restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness and (y) customary provisions in leases and
other contracts restricting the assignment thereof; and
(v) (with respect to clause (a) above) provisions in any lease or lease
agreement, or any restrictions or conditions imposed by any landlord,
prohibiting or restricting the granting, creation or incurrence of any liens on
any premises leased by the Company or any of its Subsidiaries.
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SECTION 7.10. Swap Agreements. The Company will not, and will not permit
any of its Subsidiaries to, enter into any Swap Agreement, other than Swap
Agreements entered into in the ordinary course of business to hedge or mitigate
risks to which the Company or any Subsidiary is exposed in the conduct of its
business or the management of its liabilities.
SECTION 7.11. Financial Covenants.
-------------------
(a) Consolidated Leverage Ratio. The Company will not, as of the last day
of any fiscal quarter of the Company, permit the Consolidated Leverage Ratio to
exceed (i) 2.50 to 1.0, as of the end of each fiscal quarter of each fiscal year
ending on or nearest to March 31, June 30 and December 31 and (ii) 3.50 to 1.0,
as of the end of the fiscal quarter of each fiscal year ending on or nearest to
September 30.
(b) Consolidated Fixed Charges Ratio. The Company will not, as of the last
day of any fiscal quarter of the Company, permit the Consolidated Fixed Charge
Coverage Ratio to be less than 1.25 to 1.0.
(c) Consolidated Net Worth. The Company will not, as of the last day of any
fiscal quarter of the Company, permit the Consolidated Net Worth to be less than
the sum of (i) $200,000,000, (ii) 50% of consolidated net income of the Company
and its Subsidiaries for each fiscal year of the Company (beginning with the
fiscal year ending on or nearest to June 30, 2009) for which such consolidated
net income is positive and (iii) 50% of the Net Proceeds of any Equity Issuance.
SECTION 7.12. Sale-Leasebacks. The Company will not, and will not permit
any of its Subsidiaries to, enter into any arrangement with any Person providing
for the leasing by the Company or any Subsidiary of real or personal property
which has been or is to be sold or transferred by the Company or such Subsidiary
to such Person or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such property or rental obligations
of the Company or such Subsidiary (a "Sale/Leaseback Transaction"), except for
Sale/Leaseback Transactions by the Company and its Subsidiaries with an
aggregate sales price not exceeding $20,000,000.
SECTION 7.13. Modifications of Organizational Documents. The Company will
not, and will not permit any of its Subsidiaries to, consent to any
modification, supplement or waiver of any of the provisions of the charter,
by-laws or other organizational documents of the Company or any of its
Subsidiaries that could reasonably be expected to be materially adverse to the
interests of the Lenders, in each case, without the prior consent of the
Required Lenders (or the Administrative Agent, with the approval of the Required
Lenders); provided that the foregoing shall not apply to any modification of the
charter, by-laws or other organizational documents of any Subsidiary effected
solely in connection with the liquidation or dissolution thereof permitted by
Section 7.03.
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ARTICLE VIII
EVENTS OF DEFAULT
-----------------
If any of the following events ("Events of Default") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or any fee or
any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement or under any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of three or more Business Days;
(c) any representation or warranty made or deemed made by or on behalf of
the Company or any of its Subsidiaries in or in connection with this Agreement
or any other Loan Document or any amendment or modification hereof or thereof or
waiver hereunder or thereunder, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with this
Agreement or any other Loan Document or any such amendment, modification or
waiver, shall prove to have been incorrect when made or deemed made in any
material respect;
(d) any Loan Party shall fail to observe or perform any covenant, condition
or agreement contained in Section 6.02, 6.03 (with respect to the existence of
any Borrower) or 6.09 or in Article VII or any of its respective obligations
contained in Section 4.01 or 4.02 of the Security Agreement;
(e) any Loan Party shall fail to observe or perform any covenant, condition
or agreement contained in this Agreement (other than those specified in clause
(a), (b) or (d) of this Article) or any other Loan Document and such failure
shall continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Company (given at the request of any Lender);
(f) the Company or any of its Subsidiaries shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and payable;
(g) any event or condition occurs that results in any Material Indebtedness
becoming due prior to its scheduled maturity or that enables or permits (with or
without the giving of notice, the lapse of time or both) the holder or holders
of any Material Indebtedness or any trustee or agent on its or their behalf to
cause any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed seeking (i) liquidation, reorganization or other relief in
respect of the Company or any Subsidiary or its debts, or of a substantial part
of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Company or any Subsidiary or for a substantial part of its assets, and,
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in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Company or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Company or any Subsidiary or for a substantial part of
its assets, (iv) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of effecting any of
the foregoing;
(j) the Company or any Subsidiary shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount
in excess of $7,500,000 (not covered by insurance where the carrier has accepted
responsibility) shall be rendered against the Company or any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively stayed, or any
action shall be legally taken by a judgment creditor to attach or levy upon any
assets of the Company or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that when taken together with all
other ERISA Events that have occurred, could reasonably be expected to result in
a Material Adverse Effect;
(m) a Change in Control shall occur; or
(n) the Liens created by the Security Documents shall at any time not
constitute a valid and perfected Lien on the collateral intended to be covered
thereby (to the extent perfection by filing, registration, recordation or
possession is required herein or therein) in favor of the Administrative Agent,
free and clear of all other Liens (other than Liens permitted under Section 7.02
or under the respective Security Documents), or, except for expiration in
accordance with its terms, any of the Security Documents shall for whatever
reason be terminated or cease to be in full force and effect, or the
enforceability thereof shall be contested by any Loan Party;
then, and in every such event (other than any event with respect to any Loan
Party described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Company, take
either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
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interest thereon and all fees and other obligations of the Borrowers accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrowers; and in case of any event with respect to any Loan Party described
in clause (h) or (i) of this Article, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and all fees and other obligations of the Borrowers accrued
hereunder, shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrowers.
ARTICLE IX
THE ADMINISTRATIVE AGENT
------------------------
Each of the Lenders and the Issuing Lenders hereby irrevocably appoints the
Administrative Agent as its agent hereunder and under the other Loan Documents
and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the
terms hereof or thereof, together with such actions and powers as are reasonably
incidental thereto.
The Person serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such
Person and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Company or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or
by the other Loan Documents that the Administrative Agent is required to
exercise in writing as directed by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances provided
in Section 10.02), and (c) except as expressly set forth herein and in the other
Loan Documents, the Administrative Agent shall not have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating to
the Company or any of its Subsidiaries that is communicated to or obtained by
the Person serving as Administrative Agent or any of its Affiliates in any
capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the
circumstances provided in Section 10.02) or in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Company or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or
in connection herewith or therewith, (iii) the performance or observance of any
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of the covenants, agreements or other terms or conditions set forth herein or
therein, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article V or
elsewhere herein or therein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for a Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders, the Issuing Lenders and the Company. Upon any
such resignation, the Required Lenders shall have the right, in consultation
with the Company, to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Lenders, appoint a successor Administrative Agent which
shall be a Lender with an office in New York, New York or an Affiliate of a
Lender. Upon the acceptance of its appointment as Administrative Agent hereunder
by a successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Company to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Company and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 10.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
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to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document or any
related agreement or any document furnished hereunder or thereunder.
Notwithstanding anything herein to the contrary the Sole Bookrunner and the
Sole Lead Arranger, the Syndication Agents and the Documentation Agent named on
the cover page of this Agreement shall not have any duties or liabilities under
this Agreement, except in their capacity, if any, as Lenders.
ARTICLE X
MISCELLANEOUS
-------------
SECTION 10.01. Notices.
-------
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) of this Section), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopy, (i)
if to the Company, any Subsidiary Borrower, the Administrative Agent, any
Issuing Lender or the Swingline Lender, as set forth in Schedule 10.01; and (ii)
if to any other Lender, to it at its address (or telecopy number) set forth in
its Administrative Questionnaire.
(b) Electronic Communications. Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communications
pursuant to procedures approved by the Administrative Agent; provided that the
foregoing shall not apply to notices pursuant to Article II unless otherwise
agreed by the Administrative Agent and the applicable Lender. The Administrative
Agent or a Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
(c) Change of Address, Etc. Any party hereto may change its address or
telecopy number for notices and other communications hereunder by notice to the
other parties hereto. All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be deemed to
have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments.
-------------------
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay by the
Administrative Agent, any Issuing Lender or any Lender in exercising any right
or power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent, the Issuing Lenders and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by a Borrower therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section, and then
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such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. Without limiting the generality of the foregoing,
the making of a Loan or issuance of a Letter of Credit shall not be construed as
a waiver of any Default, regardless of whether the Administrative Agent, any
Lender or any Issuing Lender may have had notice or knowledge of such Default at
the time.
(b) Amendments. Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Loan Parties and the Required Lenders (or, in the
case of any such waiver, amendment or modification relating to Letters of Credit
or Swingline Loans, the Required Revolving Credit Lenders) or by the Loan
Parties and the Administrative Agent with the consent of the Required Lenders
(or the Required Revolving Credit Lenders, as applicable); provided that no such
agreement shall:
(i) increase the Commitment of any Lender without the written consent of
each Lender directly adversely affected thereby;
(ii) reduce the principal amount of any Loan or LC Disbursement or reduce
the rate of interest thereon, or reduce any fees payable hereunder, without
the written consent of each Lender directly adversely affected thereby;
(iii) postpone the scheduled date of payment of the principal amount of any
Loan or LC Disbursement, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the
written consent of each Lender directly adversely affected thereby;
(iv) change Section 2.17(b), (c) or (d) in a manner that would alter the
pro rata sharing of payments required thereby, without the written consent of
each Lender affected thereby;
(v) change any of the provisions of this Section or the definition of the
term "Required Lenders" or any other provision hereof specifying the number
or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without
the written consent of each Lender affected thereby; or
(vi) release all or substantially all of the Guarantors from their
guarantee obligations under Article III or all or substantially all of the
collateral, in each case without the written consent of each Lender;
and provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, any Issuing Lender or
the Swingline Lender hereunder without the prior written consent of the
Administrative Agent, such Issuing Lender or the Swingline Lender, as the case
may be.
Except as otherwise provided in this Section with respect to this
Agreement, the Administrative Agent may, with the prior consent of the Required
Lenders (but not otherwise), consent to any modification, supplement or waiver
under any of the Security Documents; provided that, without the prior consent of
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each Lender, the Administrative Agent shall not (except as provided herein or in
the Security Documents) release all or substantially all of the collateral or
otherwise terminate all or substantially all of the Liens under any Security
Document providing for collateral security, except that no such consent shall be
required, and the Administrative Agent is hereby authorized, to release any Lien
covering property (and to release any such guarantor) that is the subject of
either a disposition of property permitted hereunder or a disposition to which
the Required Lenders have consented.
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
----------------------------------
(a) Costs and Expenses. The Company shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by any Issuing Lender in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder, (iii) all out-of-pocket expenses incurred by the
Administrative Agent, any Issuing Lender or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, any
Issuing Lender or any Lender, in connection with the enforcement or protection
of its rights in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect thereof
and (iv) and all reasonable costs, expenses, taxes, assessments and other
charges incurred in connection with any filing, registration, recording or
perfection of any security interest contemplated by any Security Document or any
other document referred to therein.
(b) Indemnification by the Company. The Company shall indemnify the
Administrative Agent, each Issuing Lender and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the
use of the proceeds therefrom (including any refusal by any Issuing Lender to
honor a demand for payment under a Letter of Credit if the documents presented
in connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any Environmental Liability related in any way to the
Company or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
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(c) Reimbursement by Lenders. To the extent that the Company fails to pay
any amount required to be paid by it to the Administrative Agent, any Issuing
Lender or the Swingline Lender under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to the Administrative Agent, each Issuing Lender
or the Swingline Lender, as the case may be, such Lender's Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent, any
Issuing Lender or the Swingline Lender in its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent permitted by
applicable law, no Borrower shall assert, and each Borrower hereby waives, any
claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or
Letter of Credit or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 10.04. Successors and Assigns.
----------------------
(a) Assignments Generally. 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 (including any Affiliate of any Issuing
Lender that issues any Letter of Credit), except that (i) no Borrower may 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 any Borrower without such consent shall be null and void) and (ii) no Lender
may assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Section. 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 (including any
Affiliate of any Issuing Lender that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative
Agent, the Issuing Lenders and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
(b) Assignments by Lenders.
(i) Assignments Generally. Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it) with the prior written
consent (such consent not to be unreasonably withheld) of:
(A) the Company; provided that no consent of the Company shall be
required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund or, if an Event of Default has occurred and is
continuing, any other assignee;
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(B) the Administrative Agent; provided that no consent of the
Company shall be required for an assignment of a Term Loan to an
existing Term Loan Lender or an Affiliate or Approved Fund thereof;
and
(C) (in the case of assignments of the Revolving Credit
Commitment and Revolving Credit Loans) each Issuing Lender and the
Swingline Lender.
(ii) Certain Conditions to Assignments. Assignments shall be subject to the
following additional conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount
of the assigning Lender's Commitment or Loans, the amount of the
Commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000 or, in the case of an
assignment of a Term Loan, $1,000,000, unless each of the Company and
the Administrative Agent otherwise consent; provided that no such
consent of the Company shall be required if an Event of Default has
occurred and is continuing;
(B) 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; provided that this clause shall not
be construed to prohibit the assignment of a proportionate part of all
the assigning Lender's rights and obligations in respect of one Class
of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire in which the
assignee designates one or more credit contacts to whom all
syndicate-level information (which may contain material non-public
information about the Company and its Related Parties or their
respective securities) will be made available and who may receive such
information in accordance with the assignee's compliance procedures
and applicable laws, including Federal and state securities laws.
(iii) Effectiveness of Assignments. Subject to acceptance and recording
thereof pursuant to paragraph (b)(iv) of this Section, from and after the
effective date specified in each Assignment and Assumption, the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 10.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this Section 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 paragraph (c) of this Section.
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(iv) Maintenance of Register. The Administrative Agent, acting for this
purpose as an agent of the Borrowers, shall maintain at one of its offices a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrowers, the Administrative Agent,
the Issuing Lenders and the Lenders shall treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrowers, any Issuing Lender
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(v) Acceptance of Assignments by Administrative Agent. Upon its receipt of
a duly completed Assignment and Assumption executed by an assigning Lender and
an assignee, the assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent
shall accept such Assignment and Assumption and record the information contained
therein in the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(c) Participations.
(i) Participations Generally. Any Lender may, without the consent of the
Borrowers, the Administrative Agent, any Issuing Lender or the Swingline Lender,
sell participations to one or more banks or other entities (a "Participant") in
all or a portion of such Lender's rights and obligations under this Agreement
and the other Loan Documents (including all or a portion of its Commitment and
the Loans owing to it); provided that (A) such Lender's obligations under this
Agreement and the other Loan Documents shall remain unchanged, (B) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (C) the Borrowers, the Administrative Agent, the Issuing
Lenders 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 and the other Loan Documents. 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 this Agreement and the other Loan Documents and
to approve any amendment, modification or waiver of any provision of this
Agreement or any other Loan Document; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first proviso to
Section 10.02(b) that affects such Participant. Subject to paragraph (c)(ii) of
this Section, the Borrowers agree that each Participant shall be entitled to the
benefits of Sections 2.14, 2.15 and 2.16 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.08 as though it were a Lender; provided
that such Participant agrees to be subject to Section 2.17(c) as though it were
a Lender. Each Lender that sells a participation shall, acting solely for this
purpose as an agent of the Borrowers, maintain a register on which it enters the
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name and address of each Participant and the principal amounts (and stated
interest) of each Participant's interest in the Loans, LC Disbursements or other
obligations under this Agreement (the "Participant Register"). The entries in
the Participant Register shall be conclusive absent manifest error, and such
Lender shall treat each person whose name is recorded in the Participant
Register as the owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary.
(ii) Limitations on Rights of Participants. A Participant shall not be
entitled to receive any greater payment under Section 2.14 or 2.16 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 the Company's prior written consent. A Participant
that would be a Non-U.S. Lender if it were a Lender shall not be entitled to the
benefits of Section 2.16 unless Company is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrowers,
to comply with Section 2.16(e) as though it were a Lender.
(d) Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section
shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release
a Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
SECTION 10.05. Survival. All covenants, agreements, representations and
warranties made by the Borrowers herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, any Issuing Lender or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.14, 2.15, 2.16, 3.03 and 10.03 and
Article IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 5.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
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upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by such Lender or Affiliate to or for the credit or the account of any Borrower
against any of and all the obligations of any Borrower now or hereafter existing
under this Agreement held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process.
----------------------------------------------------------
(a) Governing Law. This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Submission to Jurisdiction. Each Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in Nassau
County and of the United States District Court of the Eastern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, any Issuing Lender or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement against any Borrower
or its properties in the courts of any jurisdiction.
(c) Waiver of Venue. Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
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(d) Service of Process. Each party to this Agreement irrevocably consents
to service of process in the manner provided for notices in Section 10.01.
Nothing in this Agreement will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the Administrative Agent, the
Issuing Lenders and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (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 regulatory 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 under any other Loan
Document or any suit, action or proceeding relating to this Agreement or any
other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective counterparty (or its advisors) to
any swap or derivative transaction relating to the Company and its Subsidiaries
and their respective obligations, (g) with the consent of the Company or (h) to
the extent such Information (A) becomes publicly available other than as a
result of a breach of this Section or (iii) becomes available to the
Administrative Agent, any Issuing Lender or any Lender on a nonconfidential
basis from a source other than a Borrower. For the purposes of this Section,
"Information" means all information received from any Loan Party relating to the
Company and its Subsidiaries and their business, other than any such information
that is available to the Administrative Agent, any Issuing Lender or any Lender
on a nonconfidential basis prior to disclosure by a Borrower; provided that, in
the case of information received from any Loan Party after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
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EACH LENDER ACKNOWLEDGES THAT INFORMATION (AS DEFINED IN THIS SECTION)
FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC
INFORMATION CONCERNING THE BORROWERS AND THEIR RELATED PARTIES OR THEIR
RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES
REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE
SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND
APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED
BY THE BORROWERS OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF
ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY
CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWERS AND THEIR RELATED
PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO
THE BORROWERS AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS
ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT
MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE
PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
SECTION 10.13. USA PATRIOT Act. Each Lender hereby notifies the Borrowers
that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)), such Lender may be required to
obtain, verify and record information that identifies the Borrowers, which
information includes the name and address of each Borrower and other information
that will allow such Lender to identify the Borrowers in accordance with said
Act.
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SECTION 10.14. Authorization of Company. Each Subsidiary Borrower hereby
authorizes the Company to give on behalf of such Subsidiary Borrower all
notices, consents and other communications that may be given by such Subsidiary
Borrower under or in connection with this Agreement or any other Loan Document,
and to receive on behalf of such Subsidiary Borrower all notices, consents and
other communications that may be given to such Subsidiary Borrower under or in
connection with this Agreement or any other Loan Document (in each case,
irrespective of whether or not such notice, consent or other communication is
expressly provided elsewhere in this Agreement to be given or received by the
Company on behalf of such Subsidiary Borrower). Such notices, consents and other
communications may include Borrowing Requests, notices as to continuations,
conversions and prepayments of Loans, notices and demands in connection with
Defaults, and notices and demands in connection with the exercise by the
Administrative Agent or any Lender of remedies. Such notices, consents and other
communications may be given by or to the Company in its own name or in the name
of the applicable Subsidiary Borrower. The authority given by each Subsidiary
Borrower in this Section is coupled with an interest and is irrevocable until
all the Revolving Credit Commitments and all Letters of Credit have expired or
been terminated and all the obligations of such Subsidiary Borrower under this
Agreement and the other Loan Documents have been paid in full.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
▇-▇▇▇-▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: CFO
[Signature Page to Credit Agreement]
SUBSIDIARY GUARANTORS
▇▇▇▇▇▇'▇, INC.
THE WINTASTING NETWORK
1-800-FLOWERS RETAIL INC.
1-800-FLOWERS SEASONAL TEAN, INC.
1-800-FLOWERS TEAM SERVICES, INC.
▇-▇▇▇-▇▇▇▇▇▇▇.▇▇▇ FRANCHISE CO., INC.
BLOOMNET, INC.
THE CHILDREN'S GROUP, INC.
THE POPCORN FACTORY, INC.
AMALGAMATED CONSOLIDATED ENTERPRISES, INC.
800-FLOWERS, INC.
BLOOMNET TECHNOLOGIES, INC.
CHERYL&CO.
THE PLOW & HEARTH, INC.
▇▇▇▇▇▇ MAY CONFECTIONS BRANDS, INC.
▇▇▇▇▇ LONDON CANDIES, INC.
FMCB ACQUISITION CO., INC.
DESIGNPAC CO., INC.
FRESH GIFT CARDS, INC.
1-800-FLOWERS SERVICE SUPPORT CENTER, INC.
NAPCO MARKETING CORP.
For each of the foregoing entities:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:Corporate Secretary
DESIGNPAC GIFTS LLC
By: DESIGNPAC CO., its sole member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:Corporate Secretary
GUARDED REALTY HOLDINGS, LLC
By: 1-800-FLOWERS SERVICE SUPPORT CENTER,
INC., its sole member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:Corporate Secretary
THE PLOW & HEARTH, LLC
By: THE PLOW & HEARTH, INC., it sole member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:Corporate Secretary
CONNECT 7 PRODUCTIONS, LLC
By: 800-FLOWERS, INC., its sole member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:Corporate Secretary
WTN SERVICES, LLC
By: THE WINTASTING NETWORK, its sole member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:Corporate Secretary
SUBSIDIARY BORROWERS:
THE WINETASTING NETWORK
BLOOMNET, INC.
THE CHILDREN'S GROUP, INC.
THE POPCORN FACTORY, INC.
800-FLOWERS, INC.
BLOOMNET TECHNOLOGIES, INC.
▇▇▇▇▇▇ & CO.
THE PLOW & HEARTH, INC.
▇▇▇▇▇▇ MAY CONFECTIONS BRANDS, INC.
▇▇▇▇▇▇ MAY CONFECTIONS, INC.
▇▇▇▇▇ LONDON CANDIES, INC.
NAPCO MARKETING CORP.
For each of the foregoing entities:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:Corporate Secretary
DESIGNPAC GIFTS LLC
By: DESIGNPAC CO., INC. its sole member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:Corporate Secretary
WTN SERVICES, LLC
By: THE WINETASTING NETWORK, its sole member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:Corporate Secretary
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
JPMORGAN CHASE BANK, N.A.
as Administrative Agent and as a Lender,
and as Swing Line Lender, and as Issuing Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
BANK OF AMERICA, N.A.,
as Syndication Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. MELCHAREK
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Name: ▇▇▇▇▇▇ ▇. MELCHAREK
Title: Senior Vice President
WACHOVIA BANK, N.A.
as Syndication Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
CAPITAL ONE, N.A.
as Documentation Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
HSBC BANK USA, National Association
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: First Vice President
RBS CITIZENS, N.A.
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
TD BANK N.A.
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Loan Officer
S
