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Exhibit 10.9
CONFORMED COPY
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CREDIT AGREEMENT
dated as of
June 5, 1998
among
THE DUN & BRADSTREET CORPORATION
(to be renamed ▇.▇. ▇▇▇▇▇▇▇▇▇ Corporation)
▇. ▇. ▇▇▇▇▇▇▇▇▇ INC.
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
---------------------------
CHASE SECURITIES INC.,
as Arranger
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▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
as Co-Arranger and Syndication Agent
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TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS
SECTION 1.01. Defined Terms.....................................1
SECTION 1.02. Classification of Loans and Borrowings...........24
SECTION 1.03. Terms Generally..................................25
SECTION 1.04. Accounting Terms; GAAP...........................25
ARTICLE 2 THE CREDITS
SECTION 2.01. Commitments......................................26
SECTION 2.02. Loans and Borrowings.............................26
SECTION 2.03. Requests for Borrowings..........................27
SECTION 2.04. Swingline Loans..................................28
SECTION 2.05. Funding of Borrowings............................29
SECTION 2.06. Interest Elections...............................30
SECTION 2.07. Termination and Reduction of Commitments.........31
SECTION 2.08. Repayment of Loans; Evidence of Debt.............32
SECTION 2.09. Amortization of Term Loans.......................34
SECTION 2.10. Prepayment of Loans..............................37
SECTION 2.11. Fees.............................................38
SECTION 2.12. Interest.........................................39
SECTION 2.13. Alternate Rate of Interest.......................40
SECTION 2.14. Increased Costs..................................41
SECTION 2.15. Break Funding Payments...........................42
SECTION 2.16. Taxes............................................42
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs..............................44
SECTION 2.18. Mitigation Obligations; Replacement of Lenders...46
ARTICLE 3 REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers.............................47
SECTION 3.02. Authorization; Enforceability....................47
SECTION 3.03. Governmental Approvals; No Conflicts.............47
SECTION 3.04. Financial Condition; No Material Adverse Change..48
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SECTION 3.05. Properties.......................................50
SECTION 3.06. Litigation and Environmental Matters.............50
SECTION 3.07. Compliance with Laws and Agreements..............51
SECTION 3.08. Investment and Holding Company Status............51
SECTION 3.09. Taxes............................................51
SECTION 3.10. ERISA............................................51
SECTION 3.11. Disclosure.......................................52
SECTION 3.12. Subsidiaries and Joint Ventures..................52
SECTION 3.13. Insurance........................................52
SECTION 3.14. Use of Proceeds..................................52
SECTION 3.15. Solvency.........................................52
SECTION 3.16. Senior Indebtedness..............................53
SECTION 3.17. Security Documents...............................53
SECTION 3.18. Representation and Warranties Related to
New D&B and the Spin-off.........................53
ARTICLE 4 CONDITIONS
SECTION 4.01. Effective Date...................................54
SECTION 4.02. Each Credit Event................................57
ARTICLE 5 AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Statements and Other Information.......58
SECTION 5.02. Notices of Material Events.......................61
SECTION 5.03. Information Regarding Collateral.................61
SECTION 5.04. Existence; Conduct of Business...................62
SECTION 5.05. Payment of Obligations...........................62
SECTION 5.06. Maintenance of Properties........................62
SECTION 5.07. Insurance........................................63
SECTION 5.08. Casualty and Condemnation........................63
SECTION 5.09. Books and Records; Inspection and Audit Rights...63
SECTION 5.10. Compliance with Laws.............................63
SECTION 5.11. Year 2000........................................64
SECTION 5.12. Use of Proceeds..................................64
SECTION 5.13. Subsidiaries.....................................64
SECTION 5.14. Further Assurances...............................65
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ARTICLE 6 NEGATIVE COVENANTS
SECTION 6.01. Leverage Ratio...................................66
SECTION 6.02. Fixed Charge Coverage Ratio......................66
SECTION 6.03. Indebtedness; Certain Equity Securities..........66
SECTION 6.04. Liens............................................68
SECTION 6.05. Fundamental Changes..............................70
SECTION 6.06. Investments, Loans, Advances, Guarantees and
Acquisitions.....................................71
SECTION 6.07. Asset Sales......................................73
SECTION 6.08. Sale and Leaseback Transactions..................74
SECTION 6.09. Hedging Agreements...............................74
SECTION 6.10. Restricted Payments; Certain Payments of
Indebtedness.....................................74
SECTION 6.11. Transactions with Affiliates.....................76
SECTION 6.12. Restrictive Agreements...........................77
SECTION 6.13. Amendment of Material Documents..................77
ARTICLE 7 EVENTS OF DEFAULT
ARTICLE 8 THE ADMINISTRATIVE AGENT
ARTICLE 9 MISCELLANEOUS
SECTION 9.01. Notices..........................................84
SECTION 9.02. Waivers; Amendments..............................85
SECTION 9.03. Expenses; Indemnity; Damage Waiver...............87
SECTION 9.04. Successors and Assigns...........................88
SECTION 9.05. Survival.........................................91
SECTION 9.06. Counterparts; Effectiveness......................92
SECTION 9.07. Severability.....................................92
SECTION 9.08. Right of Setoff..................................92
SECTION 9.09. Governing Law; Jurisdiction; Consent to
Service of Process...............................92
SECTION 9.10. WAIVER OF JURY TRIAL.............................93
SECTION 9.11. Headings.........................................93
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SECTION 9.12. Confidentiality..................................94
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Borrower Security Agreement
Exhibit C -- Form of Holdings Collateral Agreement
Exhibit D -- Form of Subsidiary Collateral Agreement
Exhibit E-1 -- Form of Opinion of New York Counsel for the Loan Parties
Exhibit E-2 -- Form of Opinion of Counsel for Holdings
Exhibit E-3 -- Form of Opinion of Counsel for the Borrower
Exhibit F -- Section 2.16(e) Certificate
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CREDIT AGREEMENT dated as of June 5, 1998 among ▇. ▇. ▇▇▇▇▇▇▇▇▇ INC., THE
DUN & BRADSTREET CORPORATION (to be renamed ▇.▇. ▇▇▇▇▇▇▇▇▇ Corporation), the
LENDERS party hereto, and THE CHASE MANHATTAN BANK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"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.
"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 The Chase Manhattan Bank, in its capacity as
administrative agent for the Lenders under the Loan Documents.
"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 1/2 of 1%. 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.
"Applicable Percentage" means, with respect to any Revolving Lender, the
percentage of the total Revolving Commitments represented by such Lender's
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Revolving Commitment. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments (assuming,
for this purpose, that any assignment by a Revolving Lender of any of its
Revolving Exposure is an assignment by such Revolving Lender of an equivalent
portion of its Revolving Commitment).
"Applicable Rate" means, for any day,
(a) with respect to any ABR Loan or Eurodollar Loan that is a Revolving
Loan, a Tranche A Term Loan or a Swingline 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", as the case may be, based upon the Leverage Ratio as of
the most recent determination date; provided that for any day on or prior to the
day which falls six months after the Effective Date, the "Applicable Rate" for
purposes of this clause shall be the applicable rate per annum set forth below
in Category 3:
Leverage ABR Eurodollar Commitment
Ratio Spread Spread Fee Rate
------------ ---------- ---------- ------------
Category 1 1.00% 2.00% 0.375%
Category 2 0.75% 1.75% 0.350%
Category 3 0.50% 1.50% 0.300%
Category 4 0.25% 1.25% 0.250%
------------ ---------- ------------- ------------
Category 5 0% 1.00% 0.200%
============ ========== ============= ============
(b) with respect to any ABR Loan or Eurodollar Loan that is a Tranche B
Term Loan, the applicable rate per annum set forth below under the caption "ABR
Spread" or "Eurodollar Spread", as the case may be, based upon the Leverage
Ratio as of the most recent determination date; provided that for any day on or
prior to the day which falls six months after the Effective Date, the
"Applicable Rate" for purposes of this clause shall be the applicable rate per
annum set forth below in Category 3:
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Leverage ABR Spread Eurodollar Spread
------------ -------------- ---------------------
Category 1 1.25% 2.25%
Category 2 1.00% 2.00%
Category 3 0.75% 1.75%
Category 4 0.50% 1.50%
-------------- ----------------- -------------------
Category 5 0.50% 1.50%
============== ================= ===================
and
(c) with respect to any ABR Loan or Eurodollar Loan that is a Tranche C
Term Loan, the applicable rate per annum set forth below under the caption "ABR
Spread" or "Eurodollar Spread", as the case may be, based upon the Leverage
Ratio as of the most recent determination date; provided that for any day on or
prior to the day which falls six months after the Effective Date, the
"Applicable Rate" for purposes of this clause shall be the applicable rate per
annum set forth below in Category 3:
Leverage ABR Spread Eurodollar Spread
------------ -------------- ---------------------
Category 1 1.50% 2.50%
Category 2 1.25% 2.25%
Category 3 1.00% 2.00%
Category 4 0.75% 1.75%
----------------------------------------------------
Category 5 0.75% 1.75%
====================================================
For purposes of the foregoing, (i) the Leverage Ratio shall be determined
as of the end of each fiscal quarter of the Borrower's fiscal year based upon
the Borrower's consolidated financial statements delivered pursuant to Section
5.01(a) or 5.01(b) and (ii) each change in the Applicable Rate resulting from a
change in the Leverage Ratio shall be effective during the period commencing on
and including the date of delivery to the Administrative Agent of such
consolidated financial statements indicating such change and ending on the date
immediately preceding the effective date of the next such change; provided that
the 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) at the option of the
Administrative Agent or the Required Lenders, if the Borrower fails to deliver
the consolidated financial statements required to be delivered by it pursuant to
Section 5.01(a) or (b), during the period from the expiration of the time for
delivery thereof until such consolidated financial statements are delivered.
"Approved Fund" means, with respect to any Lender that is a fund that
invests in commercial loans, any other fund that invests in commercial loans and
is managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
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"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Basket Amount" means, on any date, an amount equal to the sum of (1)
$25,000,000 and (2) 50% of cumulative consolidated net income (including any net
losses) of the Borrower and its Consolidated Subsidiaries for the period from
and including the first day of the first fiscal quarter commencing on or after
the Effective Date to and including the last day of the fiscal quarter most
recently ended on or prior to such date, treated as a single accounting period.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means ▇. ▇. ▇▇▇▇▇▇▇▇▇ Inc., a Delaware corporation, and its
successors.
"Borrower Security Agreement" means the Security Agreement dated as of the
Effective Date between the Borrower and the Administrative Agent, substantially
in the form of Exhibit B, as amended from time to time.
"Borrowing" means (a) Loans of the same Class and Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect, or (b) a Swingline Loan.
"Borrowing Request" means a request by the 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 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
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obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Category 1" exists if the Leverage Ratio is greater than or equal to
4.25:1.
"Category 2" exists if the Leverage Ratio is greater than or equal to
3.75:1 and less than 4.25:1.
"Category 3" exists if the Leverage Ratio is greater than or equal to
3.25:1 and less than 3.75:1.
"Category 4" exists if the Leverage Ratio is greater than or equal to
2.75:1 and less than 3.25:1.
"Category 5" exists if the Leverage Ratio is less than 2.75:1.
"CenDon" means The CenDon Partnership, an Illinois partnership, and its
successors.
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person other than Holdings of any
shares of capital stock of the Borrower; (b) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934, as amended, and the
rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof), of shares representing more than 25% of the aggregate ordinary
voting power represented by the issued and outstanding capital stock of
Holdings; (c) occupation of a majority of the seats (other than vacant seats) on
the board of directors of Holdings by Persons who were neither (i) nominated by
the board of directors of Holdings nor (ii) appointed by directors so nominated;
or (d) the acquisition of direct or indirect Control of Holdings by any Person
or group.
"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, for
purposes of Section 2.14(b), by any lending office of such Lender or by such
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
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Loans, Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans or
Swingline Loans and, when used in reference to any Commitment, refers to whether
such Commitment is a Revolving Commitment, Tranche A Commitment, Tranche B
Commitment or Tranche C Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral" means any and all "Collateral", as defined in any applicable
Security Document.
"Commitment" means a Revolving Commitment, Tranche A Commitment, Tranche B
Commitment or Tranche C Commitment, or any combination thereof (as the context
requires).
"Consolidated Capital Expenditures" means, for any period, (a) the
additions to property, plant and equipment and other capital expenditures of the
Borrower and its consolidated Subsidiaries that are (or would be) set forth
under the caption "Cash Flow from Investing Activities" or a comparable caption
in a consolidated statement of cash flows of the Borrower for such period
prepared in accordance with GAAP and (b) Capital Lease Obligations incurred by
the Borrower and its consolidated Subsidiaries during such period.
"Consolidated Cash Interest Expense" for any period means Consolidated
Interest Expense for such period minus (a) in each case to the extent included
in determining such Consolidated Interest Expense for such period, the sum of
the following: (i) non-cash expenses for interest payable in kind and (ii)
amortization of debt discount and fees plus (b) to the extent subtracted
pursuant to clause (a) of this definition for any prior period, cash payments
made during such period in respect of the items referred to in clause (a)(i).
"Consolidated EBITDA" means, for any period, the sum of:
(1) consolidated net income of the Borrower and its Consolidated
Subsidiaries for such period (exclusive of the portion of net income allocable
to minority interests in unconsolidated Persons (including without limitation
any Material Joint Venture) to the extent that cash distributions have not
actually been received from such Persons), plus
(2) to the extent deducted in determining such consolidated net income,
the aggregate amount of (i) Consolidated Interest Expense, (ii) income tax
expense and (iii) depreciation and amortization (including without limitation
amortization of debt issuance costs); minus
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(3) any Restricted Payment made by Borrower to Holdings during such period
in reliance on clause (iv) of Section 6.10;
provided that:
(x) "Consolidated EBITDA" for any period will in any event include 100% of
the cash distributions to the Borrower or any Consolidated Subsidiary from any
Material Joint Venture to the extent not otherwise included in Consolidated
EBITDA;
(y) "Consolidated EBITDA" for any fiscal quarter ended prior to June 30,
1998 shall be determined on the basis of the pro forma statements of operations
of the Borrower set forth on Schedule 1 and "Consolidated EBITDA" for any other
fiscal quarter ended prior to the Spin-off Date or during which the Spin-off
Date occurs shall be determined on the basis of the financial statements for
such fiscal quarter delivered by the Borrower to the Lenders pursuant to Section
5.01(a) or (b) and prepared in accordance therewith; and
(z) solely for purposes of calculating the Leverage Ratio, "Consolidated
EBITDA" for any period in which the Borrower or any of its Consolidated
Subsidiaries shall have consummated a Permitted Acquisition or a sale, transfer
or other disposition of assets (other than any such disposition permitted by
clauses (i) or (ii) of Section 6.07) shall be calculated on a pro forma basis as
if such Permitted Acquisition or disposition of assets had occurred on the first
day of such period. Nothing in this clause (z) shall be construed to affect any
limitation on the consummation of Permitted Acquisitions or the sale, transfer
or other disposition of any assets by the Borrower and its Subsidiaries imposed
by Article VI.
"Consolidated Interest Expense" means, for any period, the interest
expense of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis for such period, including in any event the interest portion
of payments under Capital Lease Obligations.
"Consolidated Subsidiary"means, at any date, any Subsidiary or other
entity the accounts of which would be consolidated with those of the Borrower in
its consolidated financial statements if such statements were prepared as of
such date.
"Consolidated Total Debt" means, at any date, the Indebtedness of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis
as of such date.
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"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.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in the Information Memorandum, the Offering
Circular or Schedule 3.06.
"Distribution Agreement" means the Distribution Agreement between Holdings
and New D&B, substantially in the form provided to the Lenders on June 2, 1998,
as amended from time to time in accordance with Section 6.13.
"dollars" or "$" refers to lawful money of the United States of America.
"DonTech I" means Am-Don Partnership, an Illinois partnership, and its
successors.
"DonTech II" means DonTech II, an Illinois partnership, and its
successors.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"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 in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of Holdings, the Borrower or any Subsidiary directly
or indirectly resulting from or based upon (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
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contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"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 the 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 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 Plan (other than
an event for which the 30-day notice period is waived); (b) 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) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of 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 7.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, or any other recipient of any payment to be made by or on account of any
obligation of the 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
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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 by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.18(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
(or designates a new lending office) or is attributable to such Foreign Lender's
failure to comply with Section 2.16(e), except to the extent that such Foreign
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
Borrower with respect to such withholding tax pursuant to Section 2.16(e).
"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.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Financing Transactions" means (a) the execution, delivery and performance
by each Loan Party of the Loan Documents to which it is to be a party, the
borrowing of Loans and the use of the proceeds thereof and (b) the execution,
delivery and performance by each Loan Party of the Subordinated Debt Documents
to which it is to be a party, the issuance of the Subordinated Debt and the use
of the proceeds thereof.
"Fixed Charge Coverage Ratio" means, at the last day of any fiscal
quarter, the ratio of (i) Consolidated EBITDA for the period of four consecutive
fiscal quarters then ended to (ii) the sum of (A) Consolidated Cash Interest
Expense for such period plus (B) Consolidated Capital Expenditures for such
period plus (C) income tax expense of the Borrower and its Consolidated
Subsidiaries for such period plus (D) dividends paid or payable (without
duplication) by the Borrower during such period plus (E) the aggregate principal
amount of long term Indebtedness of the Borrower and its Consolidated
Subsidiaries scheduled to be amortized during such period minus (F) any
Restricted Payment made by Borrower to Holdings in reliance on clause (iv) of
Section 6.10 during such
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period. The "Fixed Charge Coverage Ratio" for any fiscal quarter ended prior to
June 30, 1998 shall be determined on the basis of the pro forma financial
statements of the Borrower set forth on Schedule 1 and the "Fixed Charge
Coverage Ratio" for any other fiscal quarter ended prior to the Spin-off Date or
during which the Spin-off Date occurs shall be determined on the basis of the
financial statements for such fiscal quarter delivered by the Borrower to the
Lenders pursuant to Section 5.01(a) or (b) and prepared in accordance therewith.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under the laws
of a jurisdiction other than the United States of America or any State thereof
or the District of Columbia.
"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.
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"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.
"Hedging Agreement" means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
"Holdings" means The Dun & Bradstreet Corporation, a Delaware corporation
(which will be renamed ▇. ▇. ▇▇▇▇▇▇▇▇▇ Corporation before or immediately after
the consummation of the Spin-off), and its successors.
"Holdings Collateral Agreement" means the Guarantee and Collateral
Agreement dated as of the Effective Date between Holdings and the Administrative
Agent, substantially in the form of Exhibit C, as amended from time to time.
"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 and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any Material Joint Venture or other 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
(including by virtue of any partnership agreement), except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor;
provided that, for purposes of the definition of "Consolidated Total Debt", the
Indebtedness of the Borrower and its Consolidated Subsidiaries shall
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include only a percentage of the Indebtedness of any Material Joint Venture or
other partnership equal to the percentage interest in such Material Joint
Venture held by the Borrower and its Consolidated Subsidiaries, so long as the
long term unsecured debt securities of each other partner in such Material Joint
Venture (or any entity which holds, directly or indirectly, 100% of the equity
interests of such partner) are rated at least BBB- by S&P and Baa3 by Moody's.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Information Memorandum" means the Confidential Information Memorandum
dated May 1998 relating to Holdings, the Borrower and the Transactions.
"Information Statement" means the Information Statement of Holdings and
New D&B dated May __, 1998.
"Interest Election Request" means a request by the Borrower to convert or
continue a Revolving Borrowing or Term Borrowing in accordance with Section
2.06.
"Interest Payment Date" means (a) with respect to any ABR Loan (other than
a Swingline Loan), the last day of each March, June, September and December, (b)
with respect to any Eurodollar Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a
Eurodollar Borrowing with an 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
thereafter, as the 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 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
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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.
"IRS Ruling" has the meaning set forth in Section 4.01(i).
"Lenders" means the Persons listed on Schedule 2.01 and any other Person
that shall have become a party hereto pursuant to an Assignment and Acceptance,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Leverage Ratio" means, on any date, the ratio of (i) Consolidated Total
Debt at such date to (ii) Consolidated EBITDA for the period of four consecutive
fiscal quarters ended on or most recently prior to such date.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow ▇▇▇▇▇ Market Service
(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 this Agreement and the Security Documents.
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"Loan Parties" means Holdings, the Borrower and the Subsidiary Loan
Parties.
"Loans" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
Holdings, the Borrower and the Subsidiaries taken as a whole, or of the Material
Joint Ventures, taken as a whole, (b) the ability of any Loan Party to perform
any of its obligations under any Loan Document or (c) the rights of or benefits
available to the Lenders or the Administrative Agent under any Loan Document.
"Material Agreements" means (i) the Partnership Agreement dated as of
August 19, 1997 between the Borrower and Ameritech Publishing of Illinois, Inc.
with respect to DonTech II, (ii) the Revenue Participation Agreement dated as of
August 19, 1997 between the Borrower and the APIL Partners Partnership, (iii)
the Partnership Agreement dated as of May 5, 1988 between the Borrower and
Centel Directory Company, with respect to CenDon, (iv) the Directory Services
Agreement dated September 5, 1985 between NYNEX Information Resources Company
and Donnelley Directory, a division of the Borrower and (v) the Indemnity and
Joint Defense Agreement dated as of October 28, 1996, among ▇▇ ▇▇▇▇▇▇▇
Corporation, Holdings and Cognizant Corporation, as amended by the side letter
dated December 10, 1996, from ▇▇ ▇▇▇▇▇▇▇ Corporation and confirmed and agreed by
Holdings and Cognizant Corporation, in each case as amended, revised or replaced
from time to time in accordance with Section 6.13.
"Material Indebtedness" means Indebtedness (other than the Loans), or
obligations in respect of one or more Hedging Agreements, of any one or more of
Holdings, the Borrower and its Subsidiaries in an aggregate principal amount
exceeding $5,000,000. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of Holdings, the Borrower or any
Subsidiary in respect of any Hedging Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that Holdings, the
Borrower or such Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.
"Material Joint Ventures" means (i) DonTech II and (ii) CenDon and, for
the purpose of the definition of "Consolidated EBITDA", DonTech I.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., and its successors.
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"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any Prepayment Event (a) the cash
proceeds received in respect of such event including (i) any cash received in
respect of any non-cash proceeds, but only as and when received, (ii) in the
case of a casualty, insurance proceeds, and (iii) in the case of a condemnation
or similar event, condemnation awards and similar payments, net of (b) the sum
of (i) all reasonable fees and out-of-pocket expenses paid by Holdings, the
Borrower and the Subsidiaries to third parties (other than Affiliates) in
connection with such event, (ii) the amount of all payments required to be made
by Holdings, the Borrower and the Subsidiaries as a result of such event to
repay Indebtedness (other than Loans and the Subordinated Debt) secured by such
asset or otherwise subject to mandatory prepayment as a result of such event,
and (iii) the amount of all taxes paid (or reasonably estimated to be payable)
by Holdings, the Borrower and the Subsidiaries, and the amount of any reserves
established by Holdings, the Borrower and the Subsidiaries to fund contingent
liabilities reasonably estimated to be payable, in each case during the year
that such event occurred or the next succeeding year and that are directly
attributable to such event (as determined reasonably and in good faith by the
chief financial officer of the Borrower).
"New D&B" means The New Dun & Bradstreet Corporation, a Delaware
corporation (which will be renamed The Dun & Bradstreet Corporation before or
immediately after the consummation of the Spin-off), and its successors.
"Obligations" means all obligations of the Loan Parties under the Loan
Documents.
"Offering Circular" means the Confidential Offering Circular dated June 3,
1998 relating to Holdings, the Borrower and the Transactions.
"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 any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Acquisition" means any acquisition, whether in a single
transaction or series of related transactions, by the Borrower or any one or
more Subsidiaries, or any combination thereof, of all or a substantial part of
the assets,
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or a going concern business or division, of any Person, whether through purchase
of assets or securities, by merger or otherwise; provided that:
(w) both before and immediately after giving effect to such acquisition,
no Default shall have occurred and be continuing;
(x) the Person whose assets, securities or equity interests are being
acquired is engaged in the same line of business activity as the Borrower and
its Subsidiaries and businesses reasonably related thereto in compliance with
Section 6.05;
(y) immediately after giving effect to such acquisition, the Borrower
shall be in compliance with the ratios set forth in Sections 6.01 and 6.02,
respectively, opposite the period in which the date of proposed consummation of
such acquisition falls (the "Transaction Date") (and, for purposes of
determining such compliance, "Consolidated EBITDA" and the "Fixed Charge
Coverage Ratio" shall each be as in effect on the last day of the fiscal quarter
most recently ended on or prior to such Transaction Date and adjusted to give
effect to the proposed acquisition as if it had occurred on the first day of the
relevant period for testing compliance and "Consolidated Total Debt" shall be as
in effect on such Transaction Date and assuming the proposed acquisition has
been consummated); and
(z) if immediately after giving effect to such acquisition, the Borrower
shall have any additional Subsidiaries, the Borrower shall have complied, and
shall have caused such additional Subsidiaries to have complied, with the
provision of Section 5.13 with respect thereto.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.05;
(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 5.05;
(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;
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(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 7; 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 Borrower or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(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 Moody's;
(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; and
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in
clause (c) above.
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"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"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 the 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.
"Prepayment Event" means:
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset of the Borrower
or any Subsidiary or Holdings, other than (i) dispositions described in
clauses (i), (ii), (iii) and (iv) of Section 6.07 and (ii) other
dispositions resulting in aggregate Net Proceeds not exceeding $5,000,000
during any fiscal year of the Borrower; or
(b) any casualty or other insured damage to, or any taking under
power of eminent domain or by condemnation or similar proceeding of, any
property or asset of the Borrower or any Subsidiary or Holdings, other
than any such damage to, or taking of, any property or asset the Net
Proceeds of which do not exceed in the aggregate $20,000,000;
provided that any transaction not otherwise excluded from the definition of
"Prepayment Event" shall not constitute a "Prepayment Event" if the Net Proceeds
therefrom have been reinvested by the Borrower and its Subsidiaries within 360
days after receipt thereof (and, to the extent such Net Proceeds are not so
invested within such period, such transaction shall constitute a "Prepayment
Event" on the first day after such period, and the Net Proceeds with respect
thereto shall be equal to the amount of such Net Proceeds not so invested during
such period.)
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by The Chase Manhattan Bank 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.
"Register" has the meaning set forth in Section 9.04(c).
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"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 Exposures,
Term Loans and unused Commitments representing more than 50% of the sum of the
total Revolving Exposures, outstanding Term Loans and unused Commitments at such
time.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any shares of any class of
capital stock or other equity interests of Holdings, the Borrower or any
Subsidiary, or any payment (whether in cash, securities or other property) in
respect of any shares of any class of capital stock or other equity interests of
Holdings, the Borrower or any Subsidiary, including any sinking fund or similar
deposit or any payment on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such shares of capital stock or
other equity interests or any option, warrant or other right to acquire any such
shares of capital stock or other equity interests.
"Revolving Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Revolving Maturity Date and
the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the commitment,
if any, of such Lender to make Revolving Loans and to acquire participations in
Swingline Loans hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.07 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender's Revolving
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Revolving Commitment, as
applicable. The initial aggregate amount of the Lenders' Revolving Commitments
is $100,000,000.
"Revolving Exposure" means, with respect to any Lender at any time, the
sum of the outstanding principal amount of such Lender's Revolving Loans and
Swingline Exposure at such time.
"Revolving Lender" means a Lender with a Revolving Commitment or, if the
Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
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"Revolving Loan" means a Loan made pursuant to clause (d) of Section 2.01.
"Revolving Maturity Date" means June 5, 2004 (or, if such day is not a
Business Day, the immediately succeeding Business Day).
"S&P" means Standard & Poor's Ratings Group and its successors.
"Security Documents" means the Borrower Security Agreement, the Holdings
Collateral Agreement, the Subsidiary Collateral Agreement and each other
security agreement, pledge agreement, mortgage or other instrument or document
executed and delivered pursuant to Section 5.13 or 5.14 to secure any of the
Obligations.
"Spin-off" means all of the transactions contemplated by the Information
Statement and Article 2 of the Distribution Agreement to be consummated on or
prior to the Distribution Date (as defined therein), including without
limitation (i) the transfer by Holdings to New D&B of all of Holdings' and its
subsidiaries' right, title and interest in the New D&B Assets (as defined in the
Distribution Agreement), (ii) the transfer by New D&B and its subsidiaries to
Holdings, the Borrower and its Subsidiaries of all of New D&B's and its
subsidiaries' right, title and interest in the RHD Assets (as defined in the
Distribution Agreement), (iii) the execution and delivery of each Spin-off
Document by each party thereto, and (iv) the Distribution (as defined in the
Distribution Agreement).
"Spin-off Date" means the date of consummation of the Spin-off.
"Spin-off Documents" means (i) the Information Statement, (ii) the
Distribution Agreement and (iii) each Ancillary Agreement (as defined in the
Distribution Agreement), in the case of the documents described in clauses (ii)
and (iii), substantially in the form provided to the Lenders on June 2, 1998 and
as amended from time to time in accordance with Section 6.13.
"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
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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.
"Subordinated Debt" means the Senior Subordinated Notes Due 2008 to be
issued by the Borrower on or prior to the Effective Date in the aggregate
principal amount of $150,000,000 and the Indebtedness represented thereby.
"Subordinated Debt Documents" means the indenture under which the
Subordinated Debt is issued and all other instruments, agreements and other
documents evidencing or governing the Subordinated Debt or providing for any
Guarantee or other right in respect thereof, as amended from time to time in
accordance with Section 6.13.
"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.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Collateral Agreement" means the Subsidiary Guarantee and
Collateral Agreement dated as of the Effective Date among the Subsidiary Loan
Parties and the Administrative Agent substantially in the form of Exhibit D, as
amended from time to time.
"Subsidiary Loan Party" means any Subsidiary that is not a Foreign
Subsidiary.
"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.
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"Swingline Lender" means The Chase Manhattan Bank, 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 Loans" means Tranche A Term Loans, Tranche B Term Loans and Tranche
C Term Loans.
"Tranche A Commitment" means, with respect to each Lender, the commitment,
if any, of such Lender to make a Tranche A Term Loan hereunder on the Effective
Date, expressed as an amount representing the maximum principal amount of the
Tranche A Term Loan to be made by such Lender hereunder, as such commitment may
be (a) reduced from time to time pursuant to Section 2.07 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Tranche A
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Tranche A Commitment, as
applicable. The initial aggregate amount of the Lenders' Tranche A Commitments
is $75,000,000.
"Tranche A Lender" means a Lender with a Tranche A Commitment or an
outstanding Tranche A Term Loan.
"Tranche A Maturity Date" means June 5, 2004 (or, if such day is not a
Business Day, the immediately succeeding Business Day).
"Tranche A Term Loan" means a Loan made pursuant to clause (a) of Section
2.01.
"Tranche B Commitment" means, with respect to each Lender, the commitment,
if any, of such Lender to make a Tranche B Term Loan hereunder on the Effective
Date, expressed as an amount representing the maximum principal amount of the
Tranche B Term Loan to be made by such Lender hereunder, as such commitment may
be (a) reduced from time to time pursuant to Section 2.07 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Tranche B
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Tranche B Commitment, as
applicable. The initial aggregate amount of the Lenders' Tranche B Commitments
is $125,000,000.
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"Tranche B Lender" means a Lender with a Tranche B Commitment or an
outstanding Tranche B Term Loan.
"Tranche B Maturity Date" means December 5, 2005 (or, if such day is not a
Business Day, the immediately succeeding Business Day).
"Tranche B Term Loan" means a Loan made pursuant to clause (b) of Section
2.01.
"Tranche C Commitment" means, with respect to each Lender, the commitment,
if any, of such Lender to make a Tranche C Term Loan hereunder on the Effective
Date, expressed as an amount representing the maximum principal amount of the
Tranche C Term Loan to be made by such Lender hereunder, as such commitment may
be (a) reduced from time to time pursuant to Section 2.07 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Tranche C
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Tranche C Commitment, as
applicable. The initial aggregate amount of the Lenders' Tranche C Commitments
is $100,000,000.
"Tranche C Lender" means a Lender with a Tranche C Commitment or an
outstanding Tranche C Term Loan.
"Tranche C Maturity Date" means December 5, 2006 (or, if such day is not a
Business Day, the immediately succeeding Business Day).
"Tranche C Term Loan" means a Loan made pursuant to clause (c) of Section
2.01.
"Transactions" means the Spin-off and the Financing Transactions.
"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. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a
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"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. 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 1.04. 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 Borrower notifies the Administrative Agent that the Borrower
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
Borrower 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.
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ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees (a) to make a Tranche A Term Loan to the Borrower on
the Effective Date in a principal amount not exceeding its Tranche A Commitment,
(b) to make a Tranche B Term Loan to the Borrower on the Effective Date in a
principal amount not exceeding its Tranche B Commitment, (c) to make a Tranche C
Term Loan to the Borrower on the Effective Date in a principal amount not
exceeding its Tranche C Commitment, and (d) to make Revolving Loans to the
Borrower from time to time during the Revolving Availability Period in an
aggregate principal amount that will not result in such Lender's Revolving
Exposure exceeding such Lender's Revolving Commitment. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Revolving Loans. Amounts repaid in respect of
Term Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings.Each Loan (other than a Swingline Loan)
shall be made as part of a Borrowing consisting of Loans of the same Class and
Type made 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) Subject to Section 2.13, each Revolving Borrowing and Term Borrowing
shall be comprised entirely of ABR Loans or Eurodollar Loans as the 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 Borrower to repay
such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $10,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. Each Swingline
Loan shall be in an amount that is an integral multiple of $50,000 and not less
than $250,000. Borrowings of more than one Type and Class may be outstanding
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at the same time; provided that there shall not at any time be more than a total
of five Eurodollar Borrowings in each Class outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Revolving Maturity Date, Tranche A Maturity Date, Tranche B Maturity Date or
Tranche C Maturity Date, as applicable.
SECTION 2.03. Requests for Borrowings. To request a Revolving Borrowing or
Term Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00
a.m., New York City time, one Business Day before 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 the Borrower. Each such 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 Borrowing,
Tranche A Term Borrowing, Tranche B Term Borrowing or Tranche C Term
Borrowing;
(ii) the aggregate amount of such 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 initial Interest Period to
be applicable thereto, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to which funds are
to be disbursed, which shall comply with the requirements of Section 2.05.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
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33
respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration. 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.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and conditions set
forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower from time to time during the Revolving 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 sum of the total Revolving Exposures exceeding the total
Revolving Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Swingline Loans.
(b) To request a Swingline Loan, the Borrower 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 Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender by 3:00 p.m., New York
City time, on the requested date of such Swingline Loan.
(c) 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 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 Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice
thereof to each Revolving Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Revolving 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 Lender's Applicable Percentage of such Swingline Loan or Loans.
Each Revolving 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
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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 Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in
Section 2.05 with respect to Loans made by such Lender (and Section 2.05 shall
apply, mutatis mutandis, to the payment obligations of the Revolving Lenders),
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Revolving Lenders. The Administrative Agent
shall notify the Borrower 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 Borrower (or other party
on behalf of the Borrower) 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 Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear. The
purchase of participations in a Swingline Loan pursuant to this paragraph shall
not relieve the Borrower of any default in the payment thereof.
SECTION 2.05. Funding of Borrowings. (a) 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
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request.
(b) 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 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 the 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 the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i)
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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 the 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 2.06. Interest Elections. (a) Each Revolving Borrowing and Term
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 Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The 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 comprising such Borrowing, and the Loans comprising 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) To make an election pursuant to this Section, the 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 the Borrower were
requesting a Revolving 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 the
Borrower.
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02 and paragraph (f) of
this Section:
(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;
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(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".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) 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) If the 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 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 Borrower, 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.
(f) A Borrowing of any Class may not be converted to or continued as a
Eurodollar Borrowing if after giving effect thereto (i) the Interest Period
therefor would commence before and end after a date on which any principal of
the Loans of such Class is scheduled to be repaid and (ii) the sum of the
aggregate principal amount of outstanding Eurodollar Borrowings of such Class
with Interest Periods ending on or prior to such scheduled repayment date plus
the aggregate principal amount of outstanding ABR Borrowings of such Class would
be less than the aggregate principal amount of Loans of such Class required to
be repaid on such scheduled repayment date.
SECTION 2.07. Termination and Reduction of Commitments. (a) Unless
previously terminated, (i) the Tranche A Commitments, Tranche B Commitments and
Tranche C Commitments shall terminate at 3:00 p.m., New York City time, on the
earlier of (x) July 15, 1998 and (y) the date of the first Borrowing
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hereunder and (ii) the Revolving Commitments shall terminate on the Revolving
Maturity Date.
(b) In the event and on each occasion that any Net Proceeds are received
by or on behalf of the Borrower or any Subsidiary or Holdings in respect of any
Prepayment Event, the Revolving Commitments shall be immediately and permanently
reduced by an amount (if any) equal to the amount of such Net Proceeds minus the
portion of such amount required to be applied to repay the Term Borrowings in
accordance with Section 2.10(b); provided that after giving effect to any such
reduction pursuant to this subsection (b), the Revolving Commitments shall not
be less than $50,000,000.
(c) The Borrower may at any time terminate, or from time to time reduce,
the Commitments of any Class; provided that (i) each reduction of the
Commitments of any Class shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.10,
the sum of the Revolving Exposures would exceed the total Revolving Commitments.
(d) The Borrower shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under paragraph (c) of this Section 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 Borrower pursuant
to this Section shall be irrevocable; provided that a notice of termination of
the Revolving Commitments delivered by the Borrower may state that such notice
is conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (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 Commitments of any Class shall be
permanent. Each reduction of the Commitments of any Class shall be made ratably
among the Lenders in accordance with their respective Commitments of such Class.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
of such Lender on the Revolving Maturity Date, (ii) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each Term
Loan of such Lender as provided in Section 2.09 and (iii) to the Swingline
Lender the then unpaid principal amount of each Swingline Loan on the earlier of
the Revolving Maturity Date and the first date after such Swingline Loan is made
that
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is the 15th or last day of a calendar month and is at least two Business Days
after such Swingline Loan is made.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the 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.
(c) 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 the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b)
or (c) 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 Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be evidenced
by a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Administrative Agent. Thereafter, the Loans evidenced
by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) 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 2.09. Amortization of Term Loans. (a) Subject to adjustment
pursuant to paragraph (d) of this Section, the Borrower shall repay Tranche A
Term Borrowings on each date set forth below in the aggregate principal amount
set forth opposite such date:
----------------------------------------------------
Date Amount
----- ------
9/30/99 $ 937,500
12/31/99 $ 937,500
3/31/00 $ 937,500
6/30/00 $ 937,500
9/30/00 $2,812,500
12/31/00 $2,812,500
3/31/01 $2,812,500
6/30/01 $2,812,500
9/30/01 $3,750,000
12/31/01 $3,750,000
3/31/02 $3,750,000
6/30/02 $3,750,000
9/30/02 $4,687,500
12/31/02 $4,687,500
3/31/03 $4,687,500
6/30/03 $4,687,500
9/30/03 $6,562,500
12/31/03 $6,562,500
3/31/04 $6,562,500
Tranche A $6,562,500
Maturity Date
----------------------------------------------------
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(b) Subject to adjustment pursuant to paragraph (d) of this Section,
the Borrower shall repay Tranche B Term Borrowings on each date set forth below
in the aggregate principal amount set forth opposite such date:
----------------------------------------------------
Date Amount
----- ------
9/30/98 $ 312,500
12/31/98 $ 312,500
3/31/99 $ 312,500
6/30/99 $ 312,500
9/30/99 $ 312,500
12/31/99 $ 312,500
3/31/00 $ 312,500
6/30/00 $ 312,500
9/30/00 $ 312,500
12/31/00 $ 312,500
3/31/01 $ 312,500
6/30/01 $ 312,500
9/30/01 $ 312,500
12/31/01 $ 312,500
3/31/02 $ 312,500
6/30/02 $ 312,500
9/30/02 $ 312,500
12/31/02 $ 312,500
3/31/03 $ 312,500
6/30/03 $ 312,500
9/30/03 $ 312,500
12/31/03 $ 312,500
3/31/04 $ 312,500
6/30/04 $ 312,500
9/30/04 $ 9,375,000
12/31/04 $ 9,375,000
3/31/05 $ 9,375,000
6/30/05 $ 9,375,000
9/30/05 $40,000,000
Tranche B $40,000,000
Maturity Date
----------------------------------------------------
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(c) Subject to adjustment pursuant to paragraph (d) of this Section, the
Borrower shall repay Tranche C Term Borrowings on each date set forth below in
the aggregate principal amount set forth opposite such date:
----------------------------------------------------
Date Amount
----- ------
9/30/98 $ 250,000
12/31/98 $ 250,000
3/31/99 $ 250,000
6/30/99 $ 250,000
9/30/99 $ 250,000
12/31/99 $ 250,000
3/31/00 $ 250,000
6/30/00 $ 250,000
9/30/00 $ 250,000
12/31/00 $ 250,000
3/31/01 $ 250,000
6/30/01 $ 250,000
9/30/01 $ 250,000
12/31/01 $ 250,000
3/31/02 $ 250,000
6/30/02 $ 250,000
9/30/02 $ 250,000
12/31/02 $ 250,000
3/31/03 $ 250,000
6/30/03 $ 250,000
9/30/03 $ 250,000
12/31/03 $ 250,000
3/31/04 $ 250,000
6/30/04 $ 250,000
9/30/04 $ 250,000
12/31/04 $ 250,000
3/31/05 $ 250,000
6/30/05 $ 250,000
9/30/05 $ 250,000
12/31/05 $ 250,000
3/31/06 $ 250,000
6/30/06 $ 250,000
9/30/06 $46,000,000
Tranche C $46,000,000
Maturity Date
----------------------------------------------------
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(d) If the initial aggregate amount of the Lenders' Term Commitments of
any Class exceeds the aggregate principal amount of Term Loans of such Class
that are made on the Effective Date, then the scheduled repayments of Term
Borrowings of such Class to be made pursuant to this Section shall be reduced
ratably by an aggregate amount equal to such excess. Any prepayment of a Term
Borrowing of any Class shall be applied to reduce the subsequent scheduled
repayments of the Term Borrowings of such Class to be made pursuant to this
Section (i) in the case of a prepayment made pursuant to Section 2.10(a), first,
to reduce scheduled repayments of the Term Borrowings of such Class due in the
365-day period immediately following the day such prepayment is made (until all
such scheduled repayments have been reduced to zero) and thereafter, ratably and
(ii) in the case of a prepayment made pursuant to Section 2.10(b), ratably.
(e) Prior to any repayment of any Term Borrowings of any Class hereunder,
the Borrower shall select the Borrowing or Borrowings of the applicable Class to
be repaid and shall notify the Administrative Agent by telephone (confirmed by
telecopy) of such selection not later than 11:00 a.m., New York City time, three
Business Days before the scheduled date of such repayment. Each repayment of a
Borrowing shall be applied ratably to the Loans included in the repaid
Borrowing. Repayments of Term Borrowings shall be accompanied by accrued
interest on the amount repaid.
Section 2.10. Prepayment of Loans. (a) The Borrower 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 this Section.
(b) In the event and on each occasion that any Net Proceeds are received
by or on behalf of the Borrower or any Subsidiary or Holdings in respect of any
Prepayment Event, the Borrower shall, within three Business Days after such Net
Proceeds are received, prepay Term Borrowings in an aggregate amount equal to
such Net Proceeds.
(c) If on any date the Revolving Commitments are permanently reduced
pursuant to Section 2.07(b), then, on such date, the Borrower shall prepay
Revolving Borrowings and/or Swingline Loans in an aggregate amount equal to the
amount (if any) by which the sum of the Revolving Exposures exceed the Revolving
Commitments as then reduced.
(d) Prior to any optional or mandatory prepayment of Borrowings hereunder,
the Borrower shall select the Borrowing or Borrowings to be prepaid and shall
specify such selection in the notice of such prepayment pursuant to paragraph
(e) of this Section. In the event of any optional or mandatory prepayment of
Term Borrowings made at a time when Term Borrowings of more
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than one Class remain outstanding, the Borrower shall select Term Borrowings to
be prepaid so that the aggregate amount of such prepayment is allocated between
the Term Borrowings of each Class then outstanding pro rata based on the
aggregate principal amount of outstanding Borrowings of each such Class;
provided that any Tranche B Lender or Tranche C Lender may elect, by notice to
the Administrative Agent by telephone (confirmed by telecopy) at least one
Business Day prior to the prepayment date, to decline all or any portion of any
prepayment of its Tranche B Term Borrowings or Tranche C Term Borrowings, as the
case may be, pursuant to paragraph (b) of this Section, in which case the
aggregate amount of the prepayment that would have been applied to prepay
Tranche B Term Borrowings or Tranche C Term Borrowings, as the case may be, but
was so declined shall be applied to prepay Tranche A Term Borrowings then
outstanding.
(e) The 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 11:00 a.m., New York City time, three
Business Days before the date of prepayment, (ii) in the case of prepayment of
an ABR Borrowing, not later than 11:00 a.m., 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
optional prepayment is given in connection with a conditional notice of
termination of the Revolving Commitments as contemplated by Section 2.07, then
such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.07. Promptly following receipt of any such
notice (other than a notice relating solely to Swingline Loans), the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance 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 shall be applied ratably to
the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.12 and, to the extent
applicable, amounts required to be paid by Section 2.15.
Section 2.11. Fees. (a) The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a commitment fee, which shall accrue at the
Applicable Rate on the average daily unused amount of each
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Commitment of such Lender during the period from and including the Effective
Date to but excluding the date on which such Commitment terminates. Accrued
commitment fees shall be payable in arrears (i) in the case of commitment fees
in respect of the Revolving Commitments, on the last day of March, June,
September and December of each year and on the date on which the Revolving
Commitments terminate, commencing on the first such date to occur after the date
hereof, and (ii) in the case of commitment fees in respect of the Term
Commitments of any Class, on the date on which such Commitments terminate. 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 with respect
to Revolving Commitments, a Revolving Commitment of a Lender shall be deemed to
be used to the extent of the outstanding Revolving Loans of such Lender (and the
Swingline Exposure of such Lender shall be disregarded for such purpose).
(b) The Borrower 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 Borrower and the Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of commitment fees, to the Lenders entitled thereto. Fees paid shall
not be refundable under any circumstances.
Section 2.12. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate
plus the Applicable Rate.
(b) 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) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by the Borrower 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 Revolving Loans as provided in paragraph (a) of this Section.
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(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving 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 Loan prior to the end of the Revolving 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.
(e) 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 a 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 (or Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for
such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower 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
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
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Section 2.14. Increased Costs. (a) 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
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such
Lender;
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 to
reduce the amount of any sum received or receivable by such Lender hereunder
(whether of principal, interest or otherwise), then the Borrower will pay to
such Lender such additional amount or amounts as will compensate such Lender for
such additional costs incurred or reduction suffered.
(b) If any 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 capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by, such Lender, to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such 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
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 270 days prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions
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and of such 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 Revolving Loan or Term Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.10(e) 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 Borrower pursuant to
Section 2.18, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount 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 Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
Section 2.16. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower 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 the 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 or Lender (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
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amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each Lender,
within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower hereunder or under any other Loan Document
(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 the Borrower by a Lender or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the 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.
(e) Each Foreign Lender, or any estate or trust that is subject to federal
income taxation regardless of the source of its income (each, a "Non-U.S.
Lender") shall deliver to the Borrower and the Administrative Agent (or, in the
case of a participant, to the Lender from which the related participation shall
have been purchased) two copies of either U.S. Internal Revenue Service Form
1001 or Form 4224, or, in the case of a Non-U.S. Lender claiming exemption from
U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest" a statement substantially in the
form of Exhibit F and a Form W-8, or any subsequent versions thereof or
successors thereto properly completed and duly executed by such Non-U.S. Lender
claiming complete exemption from, or a reduced rate of, U.S. federal withholding
tax on all payments by the Borrower under this Agreement and the other Loan
Documents. Such forms shall be delivered by each Non-U.S. Lender on or before
the date it becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the related
participation), In addition, each Non-U.S. Lender shall deliver such forms
promptly upon the obsolescence or
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invalidity of any form previously delivered by such Non-U.S. Lender. Each Non-
U.S. Lender shall promptly notify the Borrower at any time it determines that it
is no longer in a position to provide any previously delivered certificate to
the Borrower (or any other form of certification adopted by the U.S. taxing
authorities for such purpose). Notwithstanding any other provision of this
Section, a Non- U.S. Lender shall not be required to deliver any form pursuant
to this Section that such Non-U.S. Lender is not legally able to deliver.
Section 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-
offs. (a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest or
fees, or of amounts payable under Section 2.14, 2.15, 2.16 or 9.03, or
otherwise) 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 its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made directly to the Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.14,
2.15, 2.16 and 9.03 shall be made directly to the Persons entitled thereto and
payments pursuant to other Loan Documents shall be made to the Persons specified
therein. 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 under any Loan Document 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 under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, 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 then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal then
due to such parties.
(c) 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 Revolving Loans, Term Loans or Swingline Loans resulting
in such Lender receiving payment of a greater proportion of the aggregate amount
of its
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Revolving Loans, Term Loans and Swingline Loans 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
Revolving Loans, Term Loans and Swingline Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans, Term Loans and Swingline
Loans; 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 Borrower 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 to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). The 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 the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such 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.
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.04(c), 2.05(b), 2.17(d) or 9.03(c), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the 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. (a) If any
Lender requests compensation under Section 2.14, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the
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 Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower 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 9.04), 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 Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Commitment is being assigned, 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 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 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 Borrower to require
such assignment and delegation cease to apply.
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ARTICLE 3
Representations and Warranties
Each of Holdings and the Borrower represents and warrants to the Lenders
that:
Section 3.01. Organization; Powers. Each of Holdings, the Borrower and its
Subsidiaries and each Material Joint Venture 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
as proposed to be conducted on or after the Spin-off Date 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 3.02. Authorization; Enforceability. The Transactions to be
entered into by each Loan Party are within such Loan Party's corporate powers
and have been duly authorized by all necessary corporate and stockholder action.
This Agreement has been duly executed and delivered by each of Holdings and the
Borrower and constitutes, and each other Loan Document to which any Loan Party
is to be a party, when executed and delivered by such Loan Party, will
constitute, a legal, valid and binding obligation of Holdings, the Borrower or
such Loan Party (as the case may be), 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. Each Spin-off Document to which any Loan Party is to be a party, when
executed and delivered by such Loan Party, will constitute a legal, valid and
binding obligation of such Loan Party, 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 3.03. 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 the filing of a Form 10
by Holdings and New D&B with the Securities and Exchange Commission, the filing
of a Form 8-K by Holdings with the Securities and Exchange Commission, the
filing by Holdings and the Borrower with and declaration of effectiveness of a
registration statement by the Securities and Exchange Commission relating to an
exchange offer of the Subordinated Debt, the filing of UCC-1 financing
statements necessary to perfect the Liens created under the Security Documents,
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each of which has been made and is in full force and effect, and certain filings
and approvals relating to the Spin-off with respect to the transfer of assets
and stock of non-United States entities and to the transfer of licenses related
to the collection agency business, the failure of which to make or obtain could
not reasonably be expected to result in a Material Adverse Effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of Holdings, the Borrower or any of its Subsidiaries or
any Material Joint Venture or any order of any Governmental Authority, (c) will
not violate or result in a default under any indenture, material agreement or
other material instrument binding upon Holdings, the Borrower or any of its
Subsidiaries or any Material Joint Venture or its assets, or give rise to a
right thereunder to require any payment to be made by Holdings, the Borrower or
any of its Subsidiaries or any Material Joint Venture, and (d) will not result
in the creation or imposition of any Lien on any asset of Holdings, the Borrower
or any of its Subsidiaries or any Material Joint Venture, except Liens created
under the Security Documents.
Section 3.04. Financial Condition; No Material Adverse Change. (a) The
Borrower has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income, stockholders equity and cash flows (i) as of and for
the fiscal years ended December 31, 1996 and December 31, 1997, each reported on
by Coopers & ▇▇▇▇▇▇▇ L.L.P., independent public accountants, and (ii) as of and
for the fiscal quarter and the portion of the fiscal year ended March 31, 1998,
certified by a Financial Officer. Such financial statements present fairly, in
all material respects, the financial position and results of operations and cash
flows of the Borrower and its consolidated Subsidiaries as of such dates and for
such periods in accordance with GAAP, subject to year-end audit adjustments and
the absence of footnotes in the case of the statements referred to in clause
(ii) above.
(b) The Borrower has heretofore furnished to the Lenders (i) its unaudited
pro forma condensed balance sheet and unaudited pro forma condensed statement of
operations, each prepared giving effect to the Transactions as if the
Transactions had occurred on December 31, 1997, in the case of such balance
sheet and January 1, 1997, in the case of such statement of operations and (ii)
its unaudited pro forma combined balance sheet and unaudited pro forma condensed
statement of operations, each prepared giving effect to the Transactions as if
the Transactions had occurred on March 31, 1998, in the case of such balance
sheet and January 1, 1998, in the case of such statement of operations. Such pro
forma financial statements (i) have been prepared in good faith based on the
same assumptions used to prepare the pro forma financial statements included in
the Information Memorandum (which assumptions are believed by Holdings and the
Borrower to be reasonable), (ii) are based on the best information available to
Holdings and the Borrower after due inquiry, (iii) accurately reflect all
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adjustments necessary to give effect to the Transactions and (iv) present
fairly, in all material respects (x) in the case of such pro forma balance
sheets, the financial position of the Borrower and its consolidated Subsidiaries
as of December 31, 1997 and March 31, 1998, respectively (as if the Transactions
had occurred on such dates) and (y) in the case of such pro forma statements of
operations, the results of operations of the Borrower and its consolidated
Subsidiaries for the fiscal year ended December 31, 1997 (as if the Transactions
had occurred on January 1, 1997) and for the fiscal quarter ended March 31, 1998
(as if the Transactions had occurred on January 1, 1998), respectively.
(c) The Borrower has heretofore furnished to the Lenders (i) the audited
combined balance sheets of DonTech I and DonTech II and the audited balance
sheet of CenDon as of the fiscal years ended December 31, 1996 and December 31,
1997, in each case reported on by Coopers & ▇▇▇▇▇▇▇ L.L.P., independent public
accountants, (ii) the audited combined statements of operations, partners'
capital and cash flows for DonTech I and DonTech II and the audited statements
of operations and cash flows for CenDon for each of the fiscal years ended
December 31, 1995, December 31, 1996 and December 31, 1997, in each case
reported on by Coopers & ▇▇▇▇▇▇▇ L.L.P., independent public accountants, and
(iii) the unaudited balance sheet of each of DonTech I and DonTech II as of the
fiscal quarter ended March 31, 1998 and their respective statements of
operations, partners' capital and cash flows for the fiscal quarter and the
portion of the fiscal year then ended, certified by a Financial Officer. Such
financial statements present fairly, in all material respects, (x) in the case
of the financial statements described in clause (i), the combined financial
position of DonTech I and DonTech II and the financial position of CenDon as of
December 31, 1996 and December 31, 1997, respectively, (y) in the case of the
financial statements described in clause (ii), the combined statements of
operations of DonTech I and DonTech II and their combined cash flows and the
statement of operations and cash flows of CenDon for each of the fiscal years in
the three year period ended December 31, 1997 and (z) in the case of the
financial statements described in clause (iii), the financial position of each
of DonTech I and DonTech II, respectively, at March 31, 1998 and their
respective results of operations and their respective cash flows for the portion
of the fiscal year then ended, in each case in accordance with GAAP, subject to
year-end audit adjustments and the absence of footnotes in the case of the
statements referred to in clause (iii) above.
(d) Except as disclosed in the financial statements referred to above or
the notes thereto or in the Information Memorandum or the Offering Circular and
except for the Disclosed Matters, after giving effect to the Transactions, none
of Holdings, the Borrower or its Subsidiaries or the Material Joint Ventures
has, as of each of the Effective Date and the Spin-off Date, any material
contingent liabilities, unusual long-term commitments or unrealized losses.
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(e) Since December 31, 1997, except as disclosed in the Information
Memorandum or the Offering Circular, there has been no material adverse change
in the business, assets, operations, prospects or condition, financial or
otherwise, of Holdings, the Borrower and its Subsidiaries, taken as a whole, or
the Material Joint Ventures, taken as a whole.
Section 3.05. Properties. (a) Each of Holdings, the Borrower and its
Subsidiaries and each Material Joint Venture has good title to, or valid
leasehold interests in, all its real and personal property material to its
business, 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. There are no Liens on any such property
other than Liens permitted under Section 6.04.
(b) Each of Holdings, the Borrower and its Subsidiaries and each Material
Joint Venture owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to its business,
and the use thereof by Holdings, the Borrower and its Subsidiaries and each
Material Joint Venture 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.
(c) Schedule 3.05 sets forth the address of each real property that is or
will be owned or leased by the Borrower or any of its Subsidiaries as of each of
the Effective Date and the Spin-off Date, in each case after giving effect to
the Transactions.
Section 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of Holdings or the Borrower,
threatened against or affecting Holdings, the Borrower or any of its
Subsidiaries or any Material Joint Venture (i) as to which there is a reasonable
possibility of an adverse determination and 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 (ii) that involve
any of the Loan Documents, any of the Spin-off Documents, any of the Material
Agreements or the Transactions.
(b) 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 Holdings, the Borrower nor any
of its Subsidiaries nor any Material Joint Venture (i) has failed to comply with
any Environmental Law or to obtain, maintain or comply with any permit,
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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 basis for any
Environmental Liability.
(c) 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 3.07. Compliance with Laws and Agreements. Each of Holdings, the
Borrower and its Subsidiaries and each Material Joint Venture is in compliance
with all laws, regulations and orders of any Governmental Authority applicable
to it or its property (including without limitation any "margin" rules or
regulations promulgated by the Board) and all indentures, agreements (including
without limitation all Material Agreements) and other instruments 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. No Default has occurred and is continuing.
Section 3.08. Investment and Holding Company Status. Neither Holdings, the
Borrower nor any of its Subsidiaries nor any Material Joint Venture is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
Section 3.09. Taxes. Each of Holdings, the Borrower and its Subsidiaries
and each Material Joint Venture 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 Holdings, the
Borrower or such Subsidiary or such Material Joint Venture, 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 3.10. ERISA. No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of such Plan.
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Section 3.11. Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which Holdings,
the Borrower or any of its Subsidiaries or any Material Joint Venture is
subject, and all other matters known to any of them, that, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse
Effect. None of the Information Statement, the Offering Circular, the
Information Memorandum or any of the other reports, financial statements,
certificates or other information furnished by or on behalf of any Loan Party to
the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or any other Loan Document or delivered hereunder or thereunder
(as modified or supplemented by other information so furnished) 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 misleading; provided that, with respect to projected financial
information, Holdings and the Borrower represent only that such information was
prepared in good faith based upon assumptions believed by management to be
reasonable at the time.
Section 3.12. Subsidiaries and Joint Ventures. On the Effective Date,
Holdings will not have any subsidiaries other than the Borrower, New D&B and New
D&B's subsidiaries, and the Borrower will have no Subsidiaries. On the Spin-off
Date and after giving effect to the Spin-off, Holdings will not have any
subsidiaries other than the Borrower and the Borrower will not have any
Subsidiaries. Schedule 3.12 sets forth the name of, and the ownership interest
of the Borrower in, each Material Joint Venture and each partnership or joint
venture to which the Borrower is a party or in which the Borrower has an
economic interest as of the Effective Date and the Spin-off Date.
Section 3.13. Insurance. Schedule 3.13 sets forth a description of all
insurance maintained by or on behalf of the Borrower and its Subsidiaries as of
the Effective Date. As of the Effective Date, all premiums in respect of such
insurance that are due have been paid.
Section 3.14. Use of Proceeds. The proceeds of the Loans will be applied
by the Borrower in accordance with the provisions of Section 5.12.
Section 3.15. Solvency. Immediately after the consummation of the
Transactions to occur on the Effective Date and the Spin-off Date and
immediately following the making of each Loan, if any, made on the Effective
Date and the Spin-off Date, respectively, and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
each Loan Party, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of each Loan Party will be greater than the amount that will be
required to pay the probable liability
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of its debts and other liabilities, subordinated, contingent or otherwise, as
such debts and other liabilities become absolute and matured; (c) each Loan
Party will be able to pay its debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; and (d)
each Loan Party will not have unreasonably small capital with which to conduct
the business in which it is engaged as such business is now conducted and is
proposed to be conducted following the Spin-off Date.
Section 3.16. Senior Indebtedness. The Obligations constitute "Senior
Debt" and "Parent Company Senior Debt" under and as defined in the Subordinated
Debt Documents.
Section 3.17. Security Documents. The Security Documents create valid
security interests in the Collateral purported to be covered thereby, which
security interests are and will remain perfected security interests, prior to
all other Liens other than Permitted Encumbrances in existence on the Effective
Date. Each of the representations and warranties made by any Loan Party in the
Security Documents is true and correct.
Section 3.18. Representation and Warranties Related to New D&B and the
Spin-off. (a) New D&B is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and has all requisite
power and authority to execute, deliver and perform the Spin-off Documents to
which it is a party and to consummate the Spin-off.
(b) The execution, delivery and performance by New D&B of the Spin-off
Documents to which it is a party and the consummation by New D&B of the Spin-off
(i) are within New D&B's corporate powers, (ii) have been duly authorized by all
necessary corporate and, if required, stockholder action and (iii) (w) do not
require any consent or approval of, registration or filing with, or any other
action by, any Governmental Authority, except for the filings which have been
made and are in full force and effect and except for those referred to in
Section 3.03(a), (x) will not violate any applicable law or regulation or the
charter, by-laws or other organizational documents of New D&B or any order of
any Governmental Authority and (y) will not violate or result in a default under
any indenture, material agreement or other material instrument binding upon New
D&B or any of its subsidiaries or its assets, or give rise to a right thereunder
to require any material payment to be made by New D&B or any of its
subsidiaries. Each Spin-off Document to which New D&B is to be a party, when
executed and delivered by New D&B, will constitute a legal, valid and binding
obligation of New D&B, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting
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creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
ARTICLE 4
Conditions
Section 4.01. Effective Date. The obligations of the Lenders to make Loans
shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
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 of this Agreement) that such party has
signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and
dated the Effective Date) of each of (i) Cravath, Swaine & ▇▇▇▇▇,
New York counsel for the Loan Parties, substantially in the form of
Exhibit E-1, (ii) ▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President and General
Counsel of Holdings, substantially in the form of Exhibit E-2 and
(iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower,
substantially in the form of Exhibit E-3, and, in each case,
covering such other matters relating to the Loan Parties, the Loan
Documents or the Transactions as the Required Lenders shall
reasonably request. The Borrower and Holdings hereby request each
such counsel to deliver such opinions.
(c) The Administrative Agent shall have received 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, the Loan
Documents or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, a Vice
President or a
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Financial Officer of the Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by any Loan
Party hereunder or under any other Loan Document.
(f) The Administrative Agent (or its counsel) shall have received
counterparts of the Holdings Collateral Agreement and the Borrower
Security Agreement duly executed by each party thereto, together
with the following:
(i) stock certificates representing all the outstanding
shares of capital stock of the Borrower owned by or on behalf
of Holdings as of the Effective Date after giving effect to
the Transactions and stock powers endorsed in blank with
respect to such stock certificates;
(ii) all documents and instruments, including Uniform
Commercial Code financing statements, required by law or
reasonably requested by the Administrative Agent to be filed,
registered or recorded to create or perfect the Liens intended
to be created under the Security Documents; and
(iii) a completed Perfection Certificate of each Loan
Party dated the Effective Date and signed by an executive
officer or Financial Officer of such Loan Party, together with
all attachments contemplated thereby, including the results of
a search of the Uniform Commercial Code (or equivalent)
filings made with respect to the Loan Parties in the
jurisdictions contemplated by the Perfection Certificate and
copies of the financing statements (or similar documents)
disclosed by such search and evidence reasonably satisfactory
to the Administrative Agent that the Liens indicated by such
financing statements (or similar documents) are permitted by
Section 6.04(a) or have been released;
(g) The Administrative Agent shall have received evidence that the
insurance required by Section 5.07 is in effect.
(h) The Borrower shall have received gross cash proceeds of not less
than $150,000,000 from the issuance of the Subordinated Debt. The
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terms and conditions of the Subordinated Debt and the provisions of
the Subordinated Debt Documents shall be substantially as described
in the Offering Circular. The Administrative Agent shall have
received copies of the Subordinated Debt Documents, certified by a
Financial Officer as complete and correct.
(i) The proposed distribution by Holdings of all of its assets
(other than the capital stock of the Borrower and certain related
miscellaneous assets) to the shareholders of Holdings as approved by
the board of directors of Holdings shall be substantially on the
terms and conditions described in the Information Statement. All
material authorizations and approvals to be obtained from any
Governmental Authority with respect to the Transactions (including
without limitation the private letter ruling from the Internal
Revenue Service to the effect that the Spin-off will be tax-free to
Holdings and the shareholders of Holdings (the "IRS Ruling")) shall
have been obtained and shall be in full force and effect, with only
the exceptions described in Section 3.03(a). The board of directors
of Holdings shall have authorized the Spin-off and declared a
ratable dividend to the shareholders of Holdings payable in shares
of capital stock of New D&B and all other conditions precedent to
the consummation of the Spin-off on the terms and conditions
described in the Information Statement shall have been satisfied,
except for the conditions precedent set forth on Schedule 4.01(i).
The Administrative Agent shall have received copies of each such
material authorization or approval (including without limitation the
IRS Ruling), each Spin-off Document, if any, in effect on the
Effective Date and each Material Agreement, certified by a Financial
Officer as complete and correct. All agreements relating to
Holdings, the Borrower, each Subsidiary and each Material Joint
Venture (including without limitation all material contracts, tax
sharing agreements, indemnity agreements and transitional agreements
to which Holdings, the Borrower, any Subsidiary or any Material
Joint Venture is a party) and all organizational documents and the
corporate and capital structure of such entities, in each case as
proposed to be in effect after giving effect to the Spin-off, shall
be in all material respects as described in the Information
Statement or the Offering Circular, with only such material changes
as the Required Lenders shall have approved.
(j) The Lenders shall have received a solvency certificate, dated
the Effective Date and signed by a Financial Officer, in form and
substance satisfactory to the Lenders.
(k) The Lenders shall have received evidence satisfactory to them
that there are no actions, suits or proceedings by or before any
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arbitrator or Governmental Authority pending against, or threatened
against or affecting Holdings, the Borrower or any of its
Subsidiaries or any Material Joint Venture (i) as to which there is
a reasonable possibility of an adverse determination and 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 (ii) that involve any of the Loan
Documents, any of the Spin-off Documents, any of the Material
Agreements or the Transactions.
(l) The Administrative Agent shall have received evidence
satisfactory to it that, concurrently with the application of the
proceeds of the loans to be made on the Effective Date, all
commitments to extend credit under the Multi-year Revolving Credit
and Competitive Advance Facility and the 364-Day Revolving Credit
and Competitive Advance Facility, each dated as of August 30, 1996
and among Holdings, the Borrowing Subsidiaries party thereto, the
lenders party thereto, The Chase Manhattan Bank, as administrative
agent, Citibank, N.A., as syndication agent and ▇▇▇▇▇▇ Guaranty
Trust Company of New York, as documentation agent, shall have been
terminated and all amounts outstanding thereunder shall have been
repaid in full.
(m) The Lenders shall have received the financial statements
described in clauses (a), (b) and (c) of Section 3.04. After giving
effect to the Transactions to be consummated on the Effective Date,
neither Holdings, the Borrower nor any of its Subsidiaries shall
have outstanding any shares of preferred stock or any Indebtedness,
other than Indebtedness permitted by Section 6.03(a) or (c).
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on July
15, 1998 (and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
Section 4.02. Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) The representations and warranties of each Loan Party set forth
in the Loan Documents shall be true and correct on and as of the
date of such Borrowing.
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(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
Holdings and the Borrower on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section.
ARTICLE 5
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, each of Holdings and the Borrower covenants and agrees with the Lenders
that:
Section 5.01. Financial Statements and Other Information. The Borrower
will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the
Borrower, its audited consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows 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 Coopers & ▇▇▇▇▇▇▇ L.L.P. 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 Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
provided that such financial statements for any fiscal year ended
prior to the Spin-off Date or during which the Spin-off Date occurs
shall be prepared on a pro forma basis giving effect to the
Transactions as if the Transactions had occurred on the first day of
such fiscal year and on the basis of the assumptions used to prepare
the financial statements set forth in Schedule 1;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, its consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows
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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 the corresponding period or periods
of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers
as presenting fairly in all material respects the financial
condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consis tently applied, subject to normal year-end audit
adjustments and the absence of footnotes; provided that such
financial statements for any fiscal quarter ended prior to the
Spin-off Date or during which the Spin-off Date occurs shall be
prepared on a pro forma basis giving effect to the Transactions as
if the Transactions had occurred on the first day of such fiscal
quarter and on the basis of the assumptions used to prepare the
financial statements set forth in Schedule 1;
(c) within 90 days after the end of each fiscal year of each
Material Joint Venture, its audited balance sheet and related
statements of operations, partners' capital and cash flows 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
Coopers & ▇▇▇▇▇▇▇ L.L.P. 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
financial statements present fairly in all material respects the
financial condition and results of operations of such Material Joint
Venture in accordance with GAAP consistently applied;
(d) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Material Joint Ventures (i) in
the case of CenDon, its balance sheet and related statements of
operations as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year and (ii) in the case of DonTech
II, its balance sheet and related statements of operations,
partners' capital and cash flows 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 the
corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by
one of such Material Joint Venture's financial officers as
presenting fairly in all material respects the financial condition
and results of operations of such Material Joint Venture in
accordance with GAAP consistently applied, subject to normal
year-end audit adjustments and the absence of footnotes;
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(e) concurrently with any delivery of financial statements under
clause (a) and (b) above, a certificate of a Financial Officer of
the Borrower (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 Sections 6.01 through 6.04, inclusive, 6.06, 6.07,
6.08 and 6.10, (iii) listing the Subsidiaries at the last day of the
relevant fiscal quarter or fiscal year, as the case may be, and
setting forth reasonably detailed calculations demonstrating the
determination thereof and (iv) stating whether any change in GAAP or
in the application thereof has occurred since the date of the
Borrower's most recent audited financial statements referred to in
Section 3.04 and, if any such change has occurred, specifying the
effect of such change on the financial statements accompanying such
certificate;
(f) concurrently with any delivery of financial statements under
clause (a) above, 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);
(g) at least 30 days prior to the commencement of each fiscal year
of the Borrower, a detailed consolidated budget for the Borrower for
such fiscal year (including a projected consolidated balance sheet
and related statements of projected operations and cash flow as of
the end of and for such fiscal year and the assumptions used
therein) and, promptly when available, any material revisions of
such budget;
(h) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials
filed by Holdings, the Borrower or any Subsidiary or any Material
Joint Venture with the Securities and Exchange Commission, or any
Govern mental Authority succeeding to any or all of the functions of
said Commission, or with any national securities exchange, or
distributed by Holdings to its shareholders generally, as the case
may be; and
(i) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition
of Holdings, the Borrower or any Subsidiary or any Material Joint
Venture, or compliance with the terms of any Loan Document, Spin-off
Document or Material Agreement, as the Administrative Agent or any
Lender may reasonably request.
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Section 5.02. Notices of Material Events. Holdings and the Borrower 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 Holdings, the Borrower, any Subsidiary or any Material
Joint Venture that, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be
expected to result in liability of Holdings, the Borrower and its
Subsidiaries in an aggregate amount exceeding $2,500,000; 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 Financial Officer or other executive officer of the Borrower 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 5.03. Information Regarding Collateral. (a) The Borrower will
furnish to the Administrative Agent prompt written notice of any change (i) in
any Loan Party's corporate name or in any trade name used to identify it in the
conduct of its business or in the ownership of its properties, (ii) in the
location of any Loan Party's chief executive office, its principal place of
business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by it
is located (including the establishment of any such new office or facility),
(iii) in any Loan Party's identity or corporate structure or (iv) in any Loan
Party's Federal Taxpayer Identification Number. Holdings and the Borrower agree
not to effect or permit any change referred to in the preceding sentence
(including without limitation the change of Holdings' corporate name to "▇. ▇.
▇▇▇▇▇▇▇▇▇ Corporation," as contemplated in the Information Statement), unless
all filings have been made under the Uniform Commercial Code or otherwise that
are required in order for the Administrative Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral. The Borrower also agrees
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promptly to notify the Administrative Agent if any material portion of the
Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial statements with
respect to the preceding fiscal year pursuant to clause (a) of Section 5.01, the
Borrower shall deliver to the Administrative Agent a certificate of a Financial
Officer and the chief legal officer of the Borrower (i) setting forth the
information required pursuant to Section 2 of each of the Perfection
Certificates (as defined in the Borrower Security Agreement or the Subsidiary
Collateral Agreement, as applicable) or confirming that there has been no change
in such information since the date of such Perfection Certificate delivered on
the Effective Date or the date of the most recent certificate delivered pursuant
to this Section and (ii) certifying that all Uniform Commercial Code financing
statements (including fixture filings, as applicable) or other appropriate
filings, recordings or registrations, including all refilings, rerecordings and
reregistrations, containing a description of the Collateral have been filed of
record in each governmental, municipal or other appropriate office in each
jurisdiction identified pursuant to clause (i) above to the extent necessary to
protect and perfect the security interests under the Security Documents for a
period of not less than 18 months after the date of such certificate (except as
noted therein with respect to any continuation statements to be filed within
such period).
Section 5.04. Existence; Conduct of Business. Each of Holdings and the
Borrower 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, franchises,
patents, copyrights, trademarks and trade names material to the conduct of its
business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.05.
Section 5.05. Payment of Obligations. Each of Holdings and the Borrower
will, and will cause each of its Subsidiaries to, pay its Indebtedness and other
material obligations, including Tax liabilities, 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) Holdings, the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP, (c) such contest effectively suspends
collection of the contested obligation and the enforcement of any Lien securing
such obligation and (d) the failure to make payment pending such contest could
not reasonably be expected to result in a Material Adverse Effect.
Section 5.06. Maintenance of Properties. Each of Holdings and the Borrower
will, and will cause each of its Subsidiaries to, keep and maintain all
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property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
Section 5.07. Insurance. (a) Each of Holdings and the Borrower will, and
will cause each of its Subsidiaries to, maintain with financially sound and
responsible insurance companies, insurance on all their respective properties in
at least such amounts (with no greater risk retention) and against at least such
risks as are usually maintained, retained or insured against in the same general
area by companies of established repute engaged in the same or a similar
business. In addition, each of Holdings and the Borrower will, and will cause
each of its Subsidiaries to, maintain all the insurance required to be
maintained under the Security Documents. The Borrower will furnish to the
Lenders, upon request from the Administrative Agent, information presented in
reasonable detail as to the insurance so carried.
Section 5.08. Casualty and Condemnation. The Borrower will furnish to the
Administrative Agent and the Lenders prompt written notice of any casualty or
other insured damage to any material portion of any Collateral or the
commencement of any action or proceeding for the taking of any Collateral or any
part thereof or interest therein under power of eminent domain or by
condemnation or similar proceeding in accordance with the provisions of the
Security Documents.
Section 5.09. Books and Records; Inspection and Audit Rights. Each of
Holdings and the Borrower 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. Each of Holdings and the Borrower 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 (including without limitation, but subject to any confidentiality
obligation to which the Borrower or any Subsidiary is subject, any of the
foregoing in the possession of the Borrower or any of its Subsidiaries with
respect to, or relating to, the Material Joint Ventures) all at such reasonable
times and as often as reasonably requested. In addition, Holdings and the
Borrower will, and will cause each of its Subsidiaries to, use its reasonable
efforts to give the Administrative Agent and the Lenders the rights set forth in
the immediately preceding sentence with respect to the Material Joint Ventures.
Section 5.10. Compliance with Laws. Each of Holdings and the Borrower
will, and will cause each of its Subsidiaries to, comply with all laws,
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rules, regulations and orders of any Governmental Authority applicable to 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 5.11. Year 2000. Any reprogramming required to permit the proper
functioning, in and following the year 2000, of (i) the Borrower's and its
Subsidiaries' computer systems and (ii) equipment containing embedded microchips
(including systems and equipment supplied by others or with which Borrower's or
its Subsidiaries' systems interface) and the testing of all such systems and
equipment, as so reprogrammed, will be substantially completed by January 1,
1999. The cost to the Borrower and its Subsidiaries of such reprogramming and
testing and of the reasonably foreseeable consequences of year 2000 to the
Borrower and its Subsidiaries (including, without limitation, reprogramming
errors and the failure of others' systems or equipment ) will not result in a
Default or a Material Adverse Effect. Except for such of the reprogramming
referred to in the preceding sentence as may be necessary, the computer and
management information systems of the Borrower and its Subsidiaries are and,
with ordinary course upgrading and maintenance, will continue for the term of
this Agreement to be, sufficient to permit the Borrower to conduct its business
without Material Adverse Effect.
Section 5.12. Use of Proceeds. The proceeds of the Term Loans and the
Revolving Loans made on the Effective Date, together with the proceeds of the
Subordinated Debt, will be used by the Borrower only for the payment of (a) a
dividend or other distribution to Holdings, the proceeds of which will be
applied by Holdings to repay Indebtedness outstanding on the Effective Date
(including without limitation Indebtedness of Holdings to subsidiaries that,
following the Spin-off, will be subsidiaries of New D&B) and (b) fees and
expenses payable in connection with the Transactions. The proceeds of the
Revolving Loans made after the Effective Date and Swingline Loans will be used
only for general corporate purposes, including working capital and the payment
of fees and expenses payable in connection with the Transactions. 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 G, U and X.
Section 5.13. Subsidiaries. If any Subsidiary is formed or acquired after
the Effective Date, the Borrower will notify the Administrative Agent and the
Lenders thereof and (a) if such Subsidiary is a Subsidiary Loan Party, the
Borrower will cause such Subsidiary to become a party to the Subsidiary
Collateral Agreement within ten Business Days after such Subsidiary is formed or
acquired and promptly take such actions to create and perfect Liens on such
Subsidiary's assets to secure the Obligations as the Administrative Agent or the
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Required Lenders shall reasonably request and (b) if any shares of capital stock
or other equity interests or Indebtedness of such Subsidiary are owned by or on
behalf of any Loan Party, the Borrower will cause such shares and promissory
notes evidencing such Indebtedness to be pledged pursuant to the Security
Documents within ten Business Days after such Subsidiary is formed or acquired
(except that, if such Subsidiary is a Foreign Subsidiary, shares of common stock
of such Subsidiary to be pledged pursuant to the Security Documents may be
limited to 65% of the outstanding shares of common stock or other equity
interests of such Subsidiary).
Section 5.14. Further Assurances. (a) Each of Holdings and the Borrower
will, and will cause each Subsidiary Loan Party to, execute any and all further
documents, financing statements, agreements and instruments, and take all such
further actions (including the filing and recording of financing statements,
fixture filings, deeds of trust and other documents), which may be required
under any applicable law, or which the Administrative Agent or the Required
Lenders may reasonably request, to effectuate the transactions contemplated by
the Loan Documents or to grant, preserve, protect or perfect the Liens created
or intended to be created by the Security Documents or the validity or priority
of any such Lien, all at the expense of the Loan Parties. Holdings and the
Borrower also agree to provide to the Administrative Agent, from time to time
upon request, evidence reasonably satisfactory to the Administrative Agent as to
the perfection and priority of the Liens created or intended to be created by
the Security Documents.
(b) If any material assets (including any real property or improvements
thereto or any interest therein) are acquired by the Borrower or any Subsidiary
Loan Party after the Effective Date (other than assets constituting Collateral
under the Subsidiary Collateral Agreement that become subject to the Lien of the
Subsidiary Collateral Agreement upon acquisition thereof), the Borrower will
notify the Administrative Agent and the Lenders thereof, and, if requested by
the Administrative Agent or the Required Lenders, the Borrower will cause such
assets to be subjected to a Lien securing the Obligations and will take, and
cause the Subsidiary Loan Parties to take, such actions as shall be necessary or
reasonably requested by the Administrative Agent to grant and perfect such
Liens, including actions described in paragraph (a) of this Section, all at the
expense of the Loan Parties.
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ARTICLE 6
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,
each of Holdings and the Borrower covenants and agrees with the Lenders that:
Section 6.01. Leverage Ratio. At any date during any period set forth
below, the Leverage Ratio will not exceed the ratio set forth below opposite
such period:
----------------------------------------------
Period Ratio
------ -----
9/30/98-9/29/99 4.25:1
9/30/99-12/30/00 4.00:1
12/31/00-12/30/01 3.75:1
12/31/01-12/30/02 3.50:1
12/31/02-9/29/03 3.25:1
9/30/03-6/29/04 3.00:1
Thereafter 2.75:1
----------------------------------------------
Section 6.02. Fixed Charge Coverage Ratio. At the last day of any fiscal
quarter, the Fixed Charge Coverage Ratio will not be less than 1.10:1.00.
Section 6.03. Indebtedness; Certain Equity Securities. (a) The Borrower
will not, and will not permit any Subsidiary to, (i) create, incur, assume or
permit to exist any Indebtedness or (ii) issue any preferred stock or other
preferred equity, except:
(i) Indebtedness created under the Loan Documents;
(ii) the Subordinated Debt;
(iii) Indebtedness existing on the date hereof and set forth in
Schedule 6.03(a), and extensions, renewals and replacements of any
such Indebtedness that do not increase the outstanding principal
amount thereof or result in an earlier maturity date or decreased
weighted average life thereof;
(iv) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary; provided that
Indebtedness of any Subsidiary that is not a Loan Party to the
Borrower or any Subsidiary Loan Party shall be subject to Section
6.06;
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(v) Guarantees by the Borrower of Indebtedness of any Subsidiary and
by any Subsidiary of Indebtedness of the Borrower or any other
Subsidiary; provided that Guarantees by the Borrower or any
Subsidiary Loan Party of Indebtedness of any Subsidiary that is not
a Loan Party shall be subject to Section 6.06;
(vi) 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 or result in an earlier maturity date or decreased
weighted average life thereof; provided that (A) such Indebtedness
is incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement and (B) the aggregate
principal amount of Indebtedness permitted by this clause (vi) shall
not exceed $10,000,000 at any time outstanding;
(vii) Indebtedness of any Person that becomes a Subsidiary after the
date hereof; provided that (A) 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 (B)
the aggregate principal amount of Indebtedness permitted by this
clause (vii) shall not exceed $10,000,000 at any time outstanding;
(viii) Indebtedness of the Borrower incurred to finance a Permitted
Acquisition that is permitted by Section 6.06 so long as (w) such
Indebtedness is subordinated to the Indebtedness created under the
Loan Documents in a manner substantially equivalent to the
subordination of the Subordinated Debt, (x) the terms of such
Indebtedness are no more restrictive than the terms applicable to
the Loans, (y) the final maturity of such Indebtedness is no earlier
than the final maturity of the Loans and (z) such Indebtedness shall
not require any payments of principal thereof prior to the final
maturity of the Loans; provided that, immediately after giving
effect to the incurrence of such Indebtedness, the Borrower shall be
in compliance with the ratios set forth in Sections 6.01 and 6.02,
respectively, opposite the period in which the date of the proposed
incurring of such Indebtedness falls (the "Indebtedness Measurement
Date") (and, for purposes of determining such compliance,
"Consolidated EBITDA"and the "Fixed Charge Coverage Ratio" shall
each be as in effect on the last day of the fiscal quarter most
recently ended on or prior to such
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Indebtedness Measurement Date and adjusted to give effect to the
proposed incurrence of Indebtedness and the uses of the proceeds
thereof as if such Indebtedness had been incurred on the first day
of the relevant period for testing compliance and "Consolidated
Total Debt" shall be as in effect on such Indebtedness Measurement
Date and assuming the proposed Indebtedness has been incurred); and
(ix) unsecured Indebtedness of the Borrower or any Subsidiary not
permitted by any of the foregoing clauses in an aggregate principal
amount not to exceed $10,000,000 at any time outstanding.
(b) The Borrower will not vote its direct or indirect interest in any
Material Joint Venture to permit the Material Joint Ventures to create, incur,
assume or permit to exist any Indebtedness except:
(i) Indebtedness existing on the date hereof and set forth in
Schedule 6.03(b), and extensions, renewals and replacements of any
such Indebtedness that do not increase the outstanding principal
amount thereof or result in an earlier maturity date or decreased
weighted average life thereof; and
(ii) other Indebtedness of the Material Joint Ventures in an
aggregate principal amount not to exceed $10,000,000 at any time
outstanding.
(c) Holdings will not create, incur, assume or permit to exist any
Indebtedness except (i) Indebtedness created under the Loan Documents and (ii)
Indebtedness existing on the date hereof and set forth in Schedule 6.03(c).
Section 6.04. Liens. (a) The Borrower will not, and will not permit any
Subsidiary 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
(including without limitation any such rights under any Material Agreement),
except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof of the types and securing
obligations in the amounts set forth in Schedule 6.04(a); provided
that (A)
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such Lien shall not apply to any other property or asset of the
Borrower or any Subsidiary and (B) such Lien shall secure only those
obligations which it secures on the date hereof;
(iv) any Lien (other than Liens permitted by clause (iii)) existing
on any property or asset prior to the acquisition thereof by the
Borrower 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 (A) 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, (B) such Lien shall not apply to any other property or assets of
the Borrower or any Subsidiary and (C) 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
(v) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided that (A) such
Liens secure Indebtedness permitted by Section 6.03(a)(vi), (B) such
security interests and the Indebtedness secured thereby are incurred
prior to or within 90 days after such acquisition or the completion
of such construction or improvement, (C) the Indebtedness secured
thereby does not exceed 90% of the cost of acquiring, constructing
or improving such fixed or capital assets and (D) such security
interests shall not apply to any other property or assets of the
Borrower or any Subsidiary.
(b) The Borrower will not vote its direct or indirect interest in any
Material Joint Venture to permit the Material Joint Ventures to create, incur,
assume or permit to exist any Lien on any property or asset now owned or
hereafter acquired by them, or assign or sell any income or revenues (including
accounts receivable) or rights in respect thereof, except:
(i) Permitted Encumbrances;
(ii) any Lien on any property or asset of any Material Joint Venture
existing on the date hereof and set forth in Schedule 6.04(b);
provided that (A) such Lien shall not apply to any other property or
asset of such Material Joint Venture and (B) such Lien shall secure
only those obligations which it secures on the date hereof;
(iii) any Lien existing on any property or asset prior to the
acquisition thereof by any Material Joint Venture; provided that (A)
such Lien is not created in contemplation of or in connection with
such acquisi tion, (B) such Lien shall not apply to any other
property or assets of such Material Joint Venture and (C) such Lien
shall secure only those obligations which it secures on the date of
such acquisition;
(iv) Liens on fixed or capital assets acquired, constructed or
improved by any Material Joint Venture; provided that (A) such Liens
secure Indebtedness permitted by Section 6.03(b)(ii), (B) such
security interests and the Indebtedness secured thereby are incurred
prior to or within 90 days after such acquisition or the completion
of such construction or improvement, (C) the Indebtedness secured
thereby does not exceed 90% of the cost of acquiring, constructing
or improving such fixed or capital assets and (D) such security
interests shall not apply to any other property or assets of such
Material Joint Venture; and
(v) Liens not otherwise permitted by the foregoing clauses securing
Indebtedness of the Material Joint Ventures in an aggregate
principal amount not to exceed $2,000,000 at any time outstanding.
(c) Holdings will not 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
thereof except liens created under the Holdings Collateral Agreement and
Permitted Encumbrances.
Section 6.05. Fundamental Changes. (a) Neither Holdings nor the Borrower
will, nor will they permit any Subsidiary to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be continuing (i)
any Subsidiary may merge into the Borrower in a transaction in which the
Borrower is the surviving corporation, (ii) any Subsidiary may merge into any
Subsidiary in a transaction in which the surviving entity is a Subsidiary and
(iii) any Subsidiary (other than a Subsidiary Loan Party) may liquidate or
dissolve if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders; provided that any such merger involving a Person
that is not a wholly owned Subsidiary immediately prior to such merger shall not
be permitted unless also permitted by Section 6.06.
(b) The Borrower will not, and will not permit any of its Subsidiaries to,
and will not vote its direct or indirect interest in any Material Joint Venture
to permit such Material Joint Venture to, engage to any material extent in any
business other than businesses of the type conducted by the Borrower and its
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Subsidiaries or such Material Joint Venture, as the case may be, on the date of
execution of this Agreement and businesses reasonably related thereto.
(c) Holdings will not engage in any business or activity other than the
ownership of all the outstanding shares of capital stock of the Borrower (and,
prior to the Spin-off Date, the capital stock of New D&B and of subsidiaries
that, following the Spin-off, will be subsidiaries of New D&B) and activities
incidental thereto. Holdings will not own or acquire any assets (other than
shares of capital stock of the Borrower and, prior to the Spin-off Date, the
capital stock of New D&B and subsidiaries that, following the Spin-off, will be
subsidiaries of New D&B, cash, Permitted Investments and equipment having a de
minimus value) or incur any liabilities (other than liabilities under the Loan
Documents, the Subordinated Debt Documents, the Spin-off Documents, liabilities
imposed by law, including tax liabilities, and other liabilities incidental to
its existence and permitted business and activities).
Section 6.06. Investments, Loans, Advances, Guarantees and Acquisitions.
The Borrower will not, and will not permit any of its Subsidiaries to, purchase,
hold or acquire (including pursuant to any merger with any Person that was not a
wholly owned Subsidiary prior to such merger) any capital stock, evidences of
indebtedness or other securities (including any option, warrant or other right
to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person, or purchase or otherwise
acquire (in one transaction or a series of transactions) any assets of any other
Person constituting a business unit (any of the foregoing, for purposes of this
Section 6.06, an "investment"), except:
(i) Permitted Investments;
(ii) investments existing on the date hereof and set forth on
Schedule 6.06;
(iii) investments by the Borrower and its Subsidiaries in the
capital stock of their Subsidiaries; provided that (i) any such
shares of capital stock held by a Loan Party shall be pledged
pursuant to the Subsidiary Collateral Agreement (subject to the
limitations applicable to common stock of a Foreign Subsidiary
referred to in Section 5.13) and (ii) the amount of investments made
by the Borrower and its Subsidiaries in Subsidiaries that are not
Loan Parties under this clause (iii) after the Effective Date,
together with loans and advances made to any such Subsidiaries after
the Effective Date under Section 6.06(a)(iv) and Guarantees for the
benefit of any such Subsidiaries granted after the
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Effective Date under Section 6.06(a)(v), shall not exceed $5,000,000
in the aggregate at any time outstanding;
(iv) loans or advances made by the Borrower to any Subsidiary and
made by any Subsidiary to the Borrower or any other Subsidiary;
provided that the amount of all such loans and advances made by Loan
Parties to Subsidiaries that are not Loan Parties under this clause
(iv) after the Effective Date, together with investments in any such
Subsidiaries made after the Effective Date under Section
6.06(a)(iii) and Guarantees for the benefit of any such Subsidiaries
granted after the Effective Date under Section 6.06(a)(v), shall not
exceed $5,000,000 in the aggregate at any time outstanding;
(v) Guarantees constituting Indebtedness permitted by Section
6.03(a); provided that (i) a Subsidiary shall not Guarantee the
Subordinated Debt unless (A) such Subsidiary also has Guaranteed the
Obligations pursuant to the Subsidiary Collateral Agreement and (B)
such Guarantee of the Subordinated Debt is subordinated to such
Guarantee of the Obligations on terms no less favorable to the
Lenders than the subordination provisions of the Subordinated Debt
and (ii) the amount of Indebtedness that is (A) outstanding with
respect to Subsidiaries that are not Loan Parties and (B) Guaranteed
by any Loan Party under this clause (v) after the Effective Date,
together with investments made under Section 6.06(a)(iii) after the
Effective Date and loans and advances made to any such Subsidiaries
after the Effective Date under Section 6.06(a)(iv), shall not exceed
$5,000,000 in the aggregate at any time outstanding;
(vi) (x) investments in existence on the date hereof in Material
Joint Ventures and (y) investments in Material Joint Ventures (other
than investments permitted by clause (vi)(x) or any other clause of
this Section) in an aggregate amount not to exceed $10,000,000;
(vii) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course
of business; and
(viii) investments not otherwise permitted by the foregoing clauses
of this Section and consisting of (x) Permitted Acquisitions in an
aggregate amount not to exceed on any date the greater of (1)
$30,000,000 and (2) the amount by which the Basket Amount in effect
on such date exceeds the sum of (xx) the aggregate amount of
Restricted Payments declared or made (without duplication) by the
Borrower in reliance on
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clause (v) of Section 6.10 on or prior to such date and (yy) the
aggregate amount of investments in excess of $30,000,000 made by the
Borrower or any of its Subsidiaries in reliance on clause (y)(2) of
this Section 6.06(viii); provided that at least 10 Business Days
prior to consummating any Permitted Acquisition, the Borrower shall
have delivered to the Lenders a certificate of a Financial Officer
of the Borrower certifying that the conditions described in the
definition of "Permitted Acquisition" have been met with respect
thereto and setting forth in reasonable detail the calculations
required to be made pursuant to clause (y) of such definition and
the assumptions used by the Borrower to make such calculations and
(y) investments in joint ventures and partnerships (other than
Permitted Acquisitions) in an aggregate amount not to exceed on any
date the greater of (1) $30,000,000 and (2) the amount by which the
Basket Amount in effect on such date exceeds the sum of (xx) the
aggregate amount of Restricted Payments declared or made (without
duplication) by the Borrower in reliance on clause (v) of Section
6.10 on or prior to such date and (yy) the aggregate amount of
Permitted Acquisitions in excess of $30,000,000 made by the Borrower
or any of its Subsidiaries in reliance on clause (x)(2) of this
Section 6.06(viii) on or prior to such date. Any calculation to be
made pursuant to this Section 6.06(viii) on any date shall be made
after giving pro forma effect to any Restricted Payments proposed to
be declared or made by the Borrower in reliance on clause (v) of
Section 6.10 and any investments proposed to be made by the Borrower
and its Subsidiaries in reliance on this Section 6.06(viii), in each
case on such date.
Section 6.07. Asset Sales. The Borrower will not, and will not permit any
of its Subsidiaries to, sell, transfer, lease or otherwise dispose of any asset,
including any capital stock, nor will the Borrower permit any of its
Subsidiaries to issue any additional shares of its capital stock or other
ownership interest in such Subsidiary, except:
(i) sales of inventory, used or surplus equipment and Permitted
Investments in the ordinary course of business;
(ii) sales, transfers and other dispositions to the Borrower or a
Subsidiary; provided that any such sales, transfers or dispositions
involving a Subsidiary that is not a Loan Party shall be made in
compliance with Section 6.06;
(iii) sales, transfers and other dispositions pursuant to the
Spin-off, so long as the Spin-off is consummated in accordance with
all
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applicable laws and substantially in accordance with the terms and
conditions set forth in the Information Statement;
(iv) the sale, transfer and other disposition of the assets used in
connection with the Borrower's existing proprietary directory
operation in Cincinnati, Ohio, northern Kentucky and southeast
Indiana; and
(v) sales, transfers and other dispositions of assets (other than
capital stock of a Subsidiary) that are not permitted by any other
clause of this Section; provided that the aggregate fair market
value of all assets sold, transferred or otherwise disposed of in
reliance upon this clause (v) shall not exceed $5,000,000 during any
fiscal year of the Borrower;
provided that all sales, transfers, leases and other dispositions permitted by
clauses (iv) and (v) shall be made for fair value and the consideration therefor
shall consists of at least 75% cash or cash equivalents.
Section 6.08. Sale and Leaseback Transactions. The Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly, enter into
any arrangement with any Person (other than a Subsidiary) whereby it shall sell
or transfer any property used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
which it intends to use for substantially the same purpose or purposes as the
property being sold or transferred, except to the extent that any such
arrangement or arrangements does not contravene the provisions of Section 6.07
and, if applicable, Section 6.03(a)(vi).
Section 6.09. Hedging Agreements. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities.
Section 6.10. Restricted Payments; Certain Payments of Indebtedness. (a)
Neither Holdings nor the Borrower will, nor will they permit any Subsidiary or
Material Joint Venture to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, except (i) Holdings may declare and pay
dividends with respect to its capital stock payable solely in additional shares
of its common stock, (ii) Subsidiaries may declare and pay dividends ratably
with respect to their capital stock, (iii) Holdings may make Restricted Payments
with the proceeds from the sale of capital stock pursuant to stock option plans
or other benefit plans for management or employees of the Borrower and its
Subsidiaries, such Restricted Payments to consist of (1) purchases of capital
stock in respect of
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option or stock grants or repurchases of options or stock, in each case from
management or employees leaving their positions or (2) purchases of capital
stock in the open market to counter the dilutive effect of any issuance of
options or capital stock pursuant to such stock option plans or other benefit
plans, (iv) the Borrower may pay dividends to Holdings so long as upon receipt
of any such dividends Holdings shall apply the proceeds thereof in full to pay
taxes of Holdings then due and payable, (v) the Borrower may declare and pay
dividends to Holdings so long as: (x) after giving effect to the declaration of
any such proposed dividend on any date (a "Dividend Date"), the aggregate amount
of dividends declared and/or paid (without duplication) by the Borrower to
Holdings in reliance on this clause (v) would not exceed the amount by which
(aa) the Basket Amount in effect on such Dividend Date exceeds (bb) the sum of
the aggregate amount of Restricted Payments declared or made by the Borrower in
reliance on this clause (v) on or prior to such Dividend Date plus the aggregate
amount of Permitted Acquisitions in excess of $30,000,000 made by the Borrower
and its Subsidiaries in reliance on Section 6.06(viii)(x)(2) plus the aggregate
amount of investments in excess of $30,000,000 made by the Borrower and its
Subsidiaries in reliance on Section 6.06(viii)(y)(2), in each case on or prior
to such Dividend Date, (y) on such Dividend Date, immediately before and after
giving effect to such dividend, (1) no Default shall have occurred and be
continuing and (2) the Borrower shall be in compliance with the ratios set forth
in Sections 6.01 and 6.02, respectively, opposite the period in which such
Dividend Date falls (and, for purposes of determining such compliance,
"Consolidated EBITDA" and the "Fixed Charge Coverage Ratio" shall each be for
the period of four consecutive fiscal quarters most recently ended on or prior
to such Dividend Date, and adjusted to give effect to the payment of each
dividend, including the proposed dividend, declared or paid (without
duplication) during the period from and including the first day immediately
after such period of four consecutive fiscal quarters to and including such
Dividend Date, but excluding each dividend declared or paid (without
duplication) during the first quarter included in such period of four
consecutive fiscal quarters) and (z) upon receipt of any such dividends,
Holdings shall apply the proceeds thereof in full to make Restricted Payments in
an aggregate amount equal to the amount of any such dividend paid by the
Borrower to Holdings, (vi) Holdings may make Restricted Payments as contemplated
by clause (v)(z) and (vii) the Borrower may dividend to Holdings (x) the net
proceeds from the issuance of the Subordinated Debt and the proceeds from the
initial Borrowings hereunder in an aggregate amount not in excess of $500
million plus (y) any other cash of the Borrower on and prior to the effective
date of the Spin-off up to an amount equal to the amount required to be
distributed by Holdings to New D&B pursuant to the Distribution Agreement on
such date, and Holdings may use the proceeds of such dividends to repay
Indebtedness of Holdings and for advances to New D&B, in all cases without such
dividends or uses contemplated by this clause (vii) counting against any
restriction set forth in
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this Section including without limitation clause (v) hereof. Nothing in this
Section shall prohibit the Borrower from paying any dividend to Holdings in
reliance on clause (v) within 60 days after the declaration thereof in
accordance therewith. Any calculation to be made pursuant to clause (v) of this
Section 6.10 on any Dividend Date shall be made after giving pro forma effect to
any Restricted Payments proposed to be declared or made by the Borrower in
reliance on such clause (v) and any investments proposed to be made by the
Borrower and its Subsidiaries in reliance on Section 6.06(viii), in each case on
such Dividend Date.
(b) Neither Holdings nor the Borrower will, nor will they permit any
Subsidiary to, make or agree to pay or make, directly or indirectly, any payment
or other distribution (whether in cash, securities or other property) of or in
respect of principal of or interest on any Indebtedness, or any payment or other
distribution (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 Indebtedness,
except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments
as and when due in respect of any Indebtedness (including without
limitation intercompany Indebtedness), other than payments in
respect of the Subordinated Debt prohibited by the subordination
provisions thereof; and
(iii) payment of secured Indebtedness that becomes due as a result
of the voluntary sale or transfer of the property or assets securing
such Indebtedness.
Section 6.11. Transactions with Affiliates. Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary 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 (a) transactions in the ordinary course of business
that do not involve Holdings and are at prices and on terms and conditions not
less favorable to the Borrower or such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties, (b) transactions between or
among the Borrower and the Subsidiary Loan Parties not involving any other
Affiliate, (c) transactions contemplated by the Spin-off Documents and
consummated in accordance therewith, (d) transactions contemplated by the
Material Agreements and consummated in accordance therewith and (e) any
Restricted Payment permitted by Section 6.10.
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Section 6.12. Restrictive Agreements. (a) Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary to, directly or indirectly,
enter into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (i) the ability of Holdings,
the Borrower or any Subsidiary to create, incur or permit to exist any Lien upon
any of its property or assets, or (ii) 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 Borrower or any other Subsidiary or
to Guarantee Indebtedness of the Borrower or any other Subsidiary; provided that
(v) the foregoing shall not apply to restrictions and conditions imposed by law
or by any Loan Document or Subordinated Debt Document, (w) the foregoing shall
not apply to restrictions and conditions existing on the date hereof identified
on Schedule 6.12(a) (but shall apply to any extension or renewal of, or any
amendment or modification expanding the scope of, any such restriction or
condition), (x) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (y) clause
(i) of the foregoing shall not apply to 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 (z) clause (i) of the foregoing shall not apply to
customary provisions in leases and other contracts restricting the assignment
thereof.
(b) The Borrower will not vote its direct or indirect interest in any
Material Joint Venture to permit such Material Joint Venture to, directly or
indirectly, enter into, incur or permit to exist any agreement or other
arrangement with any Person (other than any partner in any such Material Joint
Venture) that prohibits, restricts or imposes any condition upon the ability of
such Material Joint Venture to pay dividends or other distributions to, or to
make or repay loans or advances to, the Borrower or any Subsidiary; provided
that the foregoing shall not apply to restrictions and conditions existing on
the date hereof identified on Schedule 6.12(b) (but shall apply to any amendment
or modification expanding the scope of, any such restriction or condition).
Section 6.13. Amendment of Material Documents. Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary to, (a) amend, waive or
modify any provisions of any Subordinated Debt Document relating to
subordination, (b) change the interest rate applicable to the Subordinated Debt,
(c) change the maturity date or the amortization of the Subordinated Notes, or
(d) amend, waive or modify any covenants applicable to the Subordinated Debt.
Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to,
amend, modify or waive any of its rights under (i) any Subordinated Debt
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Document (other than any such amendment, waiver or modification described in
clauses (a) through (d) of the immediately preceding sentence), (ii) its
certificate of incorporation, by-laws or other organizational documents or (iii)
any Material Agreement or any Spin-off Document (other than Sections 2.1(a),
(i), (m), (n) and (p) or Article III (or any related definitions) the amendment,
waiver or modification of which is governed by the last sentence of this
Section) of the Distribution Agreement), if any such amendment, modification or
waiver could reasonably be expected to have (x) a Material Adverse Effect or (y)
an adverse effect on the rights or remedies of the Agent or the Lenders under
the Loan Documents. Neither Holdings nor the Borrower will, nor will they permit
any Subsidiary to, amend, waive or modify in any material respect any provision
of Section 2.1(a), (i), (m), (n) and ( p) or Article III (or any related
definitions) of the Distribution Agreement.
ARTICLE 7
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan 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) the 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 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
Business Days;
(c) any representation or warranty made or deemed made by or on
behalf of Holdings, the Borrower or any Subsidiary in or in
connection with any Loan Document or any amendment or modification
thereof or waiver thereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in
connection with any Loan Document or any amendment or modification
thereof or waiver thereunder, shall prove to have been incorrect in
any material respect when made or deemed made;
(d) Holdings or the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.04
(with
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respect to the existence of Holdings or the Borrower) or 5.12 or in
Article 6;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than
those specified in clause (a), (b) or (d) of this Article), and such
failure shall continue unremedied for a period of 30 days after
notice thereof from the Administrative Agent to the Borrower (which
notice will be given at the request of any Lender);
(f) Holdings, the Borrower or any Subsidiary 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 Holdings, the Borrower, any Subsidiary or
any Material Joint Venture or any of their respective debts, or of a
substantial part of their respective 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 Holdings, the Borrower, any Subsidiary or any Material Joint
Venture or for a substantial part of their respective assets, and,
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) Holdings, the Borrower, any Subsidiary or any Material Joint
Venture 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
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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 Holdings, the Borrower, any
Subsidiary or any Material Joint Venture 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) Holdings, the Borrower, any Subsidiary or any Material Joint
Venture 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 $5,000,000 shall be rendered against Holdings,
the Borrower, any Subsidiary, any Material Joint Venture 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 Holdings, the
Borrower, any Subsidiary or any Material Joint Venture to enforce
any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in
liability of the Borrower and its Subsidiaries in an aggregate
amount exceeding $5,000,000;
(m) (i) any Lien purported to be created under any Security Document
shall cease to be a valid and perfected Lien on any Collateral
(other than Collateral which in the aggregate has a fair market
value not in excess of $1,000,000) with the priority required by the
applicable Security Document, except as a result of the
Administrative Agent's failure to maintain possession of any stock
certificates, promissory notes or other instruments delivered to it
under any pledge agreement which is a Security Document, (ii) any
Loan Party shall assert, in writing, that any Lien purported to be
created under any Security Document shall cease to be a valid and
perfected Lien on any Collateral with the priority required by the
applicable Security Document, except as a result of the
Administrative Agent's failure to maintain possession of any stock
certificates, promissory notes or other instruments delivered to it
under any pledge agreement which is a Security Document or (iii) the
Holdings Collateral
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Agreement or the Subsidiary Collateral Agreement shall cease to be
in full force and effect (or any Loan Party shall so assert in
writing);
(n) a Change in Control shall occur;
(o) the Spin-off Date shall not have occurred by the 45th day after
the Effective Date;
(p) (i) any Material Agreement shall cease to be in full force and
effect (or any party shall so assert in writing) or (ii) any
Material Joint Venture shall terminate (other than on the final
scheduled termination date thereof in accordance with the terms of
the Material Agreements applicable thereto);
(q) (i) any Spin-off Document shall cease to be in full force and
effect (or any party shall so assert in writing) or (ii) any party
to any Spin-off Document shall fail to perform its obligations
thereunder and such failure (x) could result in the loss by the
Borrower of any material right thereunder or (y) could result in a
Material Adverse Effect; or
(r) (i) the IRS Ruling shall cease to be in full force and effect,
(ii) the Spin-off shall for any reason cease to qualify as a
tax-free distribution under Section 355 of the Code or (iii)
Holdings shall fail to take any action, or shall take any action, in
each case that would constitute non-compliance with, or a breach of,
any of the representations or undertakings of Holdings set forth in
Section 2.10 of the Distribution Agreement;
then, and in every such event (other than an event with respect to the Borrower
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 Borrower, 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 interest thereon and all
fees and other obligations of the Borrower 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 Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then
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outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower 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 Borrower.
ARTICLE 8
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the Administrative Agent
as its agent 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 of the Loan Documents, together with such actions and powers as are
reasonably incidental thereto.
The bank serving as the Administrative Agent under the Loan Documents
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 bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with Holdings, the Borrower or any
Subsidiary, any Material Joint Venture 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 in the 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 by the Loan Documents
that the Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.02), and (c) except as
expressly set forth in the 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 Holdings, the Borrower or any of its Subsidiaries or
any Material Joint Ventures that is communicated to or obtained by the bank
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 as
provided in Section
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9.02) or in the absence of its own gross negligence or wilful 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
Holdings, the Borrower 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 any Loan Document, (ii)
the contents of any certificate, report or other document delivered thereunder
or in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, (v) the existence
or sufficiency of any Collateral or (vi) the satisfaction of any condition set
forth in Article 4 or elsewhere in any Loan Document, 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 Holdings or the 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 each
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 the
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, 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
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resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. 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 Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 9.03 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
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
related agreement or any document furnished hereunder or thereunder.
ARTICLE 9
Miscellaneous
Section 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
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delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to Holdings (x) prior to the Spin-off Date, to Holdings at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇) and (y) on and
after the Spin-off Date, to Holdings at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (Telecopy No.
(914) 933- 6744);
(b) if to the Borrower, to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (Telecopy No. (914)
933-6744 );
(c) if to the Administrative Agent, to The Chase Manhattan Bank,
Loan and Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to The Chase Manhattan Bank, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇);
(d) if to the Swingline Lender, to it at Loan and Agency Services
Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with
a copy to The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(e) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
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 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, or any Lender in exercising any right or power hereunder
or under any other Loan Document 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 and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or
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remedies that they would otherwise have. No waiver of any provision of any Loan
Document or consent to any departure by any Loan Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then 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 shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent or any Lender may have
had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any provision
hereof or thereof may be waived, amended or modified except, in the case of this
Agreement, pursuant to an agreement or agreements in writing entered into by
Holdings, the Borrower and the Required Lenders or, in the case of any other
Loan Document, pursuant to an agreement or agreements in writing entered into by
the Administrative Agent and the Loan Party or Loan Parties that are parties
thereto, in each case with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, 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 affected thereby, (iv)
change Section 2.17(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision of any Loan Document specifying the number or
percentage of Lenders (or Lenders of any Class) required to waive, amend or
modify any rights thereunder or make any determination or grant any consent
thereunder, without the written consent of each Lender (or each Lender of such
Class, as the case may be), (vi) release all or substantially all of the Loan
Parties Guaranteeing the Obligations (or limit their liability with respect
thereto) without the written consent of each Lender, (vii) release all or
substantially all of the Collateral from the Liens of the Security Documents,
without the written consent of each Lender, (viii) change any provisions of any
Loan Document in a manner that by its terms adversely affects the rights in
respect of payments due to Lenders holding Loans of any Class differently than
those holding Loans of any other Class, without the written consent of Lenders
holding a majority in interest of the outstanding Loans and unused Commitments
of each affected Class, (ix) change the rights of the Tranche B Lenders to
decline mandatory prepayments as provided in Section 2.10, without the written
consent of Tranche B Lenders holding a majority of the outstanding Tranche B
Term Loans or (x) change the rights of the Tranche C
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Lenders to decline mandatory prepayments as provided in Section 2.10, without
the written consent of Tranche C Lenders holding a majority of the outstanding
Tranche C Term Loans; provided further that (A) no such agreement shall amend,
modify or otherwise affect the rights or duties of the Administrative Agent or
the Swingline Lender without the prior written consent of the Administrative
Agent or the Swingline Lender, as the case may be, and (B) any waiver, amendment
or modification of this Agreement that by its terms affects the rights or duties
under this Agreement of the Revolving Lenders (but not the Tranche A Lenders,
Tranche B Lenders and Tranche C Lenders), the Tranche A Lenders (but not the
Revolving Lenders, Tranche B Lenders and Tranche C Lenders), the Tranche B
Lenders (but not the Revolving Lenders, Tranche A Lenders and Tranche C Lenders)
or the Tranche C Lenders (but not the Revolving Lenders, Tranche A Lenders and
Tranche B Lenders) may be effected by an agreement or agreements in writing
entered into by Holdings, the Borrower and requisite percentage in interest of
the affected Class of Lenders.
Section 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower 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 the Loan Documents or any amendments, modifications or waivers
of the provisions thereof (whether or not the transactions contemplated hereby
or thereby shall be consummated), and (ii) all out-of-pocket expenses incurred
by the Administrative Agent or any Lender, including the fees, charges and
disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with
the Loan Documents, including its rights under this Section, or in connection
with the Loans made hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans.
(b) The Borrower shall indemnify the Administrative Agent 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 any Loan Document or any other
agreement or instrument contemplated hereby, the performance by the parties to
the Loan Documents of their respective obligations thereunder or the
consummation of the Transactions or any other transactions contemplated hereby,
(ii) any Loan or the use of the proceeds therefrom (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property owned or
operated by the Borrower
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or any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower 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 judgment to have resulted from the gross negligence or
wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required to be
paid by it to the Administrative Agent or the Swingline Lender under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or the Swingline Lender, as the case may be, such Lender's
pro rata share (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 or the Swingline Lender in its capacity as such. For
purposes hereof, a Lender's "pro rata share" shall be determined based upon its
share of the sum of the total Revolving Exposures, outstanding Term Loans and
unused Commitments at the time.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and each 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 the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than 10
days after written demand therefor.
Section 9.04. Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither Holdings
nor the 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 Holdings or the Borrower without such
consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and
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the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) 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); provided that (i) except in
the case of an assignment to a Lender, an Affiliate of a Lender or, solely in
the case of a Lender that is a fund that invests in commercial loans, to an
Approved Fund of such Lender, each of the Borrower and the Administrative Agent
(and, in the case of an assignment of all or a portion of a Revolving Commitment
or any Lender's obligations in respect of its Swingline Exposure, the Swingline
Lender) must give their prior written consent to such assignment (which consent
shall not be unreasonably withheld), (ii) except in the case of an assignment to
a Lender, an Affiliate of a Lender or, solely in the case of a Lender that is a
fund that invests in commercial loans, to an Approved Fund of such 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 Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 unless each of the Borrower and the Administrative
Agent otherwise consent, (iii) 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, except that this clause (iii) 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, (iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500 and (v) the assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire; and
provided further that any consent of the Borrower otherwise required under this
paragraph shall not be required if an Event of Default under clause (h) or (i)
of Article 7 has occurred and is continuing. Subject to acceptance and recording
thereof pursuant to paragraph (d) of this Section, from and after the effective
date specified in each Assignment and Acceptance the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, 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 Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance 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 9.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for
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purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in The City of New York a copy of
each Assignment and Acceptance 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 to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and Holdings, the Borrower, the Administrative Agent and the Lenders
may 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 Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
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
Acceptance 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.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent 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 (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) Holdings, the Borrower, the Administrative Agent and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the 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 the Loan Documents and to approve any amendment, modification or waiver
of any provision of the Loan Documents; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such Participant. Subject to
paragraph (f) of this
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Section, the Borrower agrees 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 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.17(c) as though it were a
Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.14 and 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 Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.16 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.16(e) as
though it were a Lender.
(g) 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 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 9.05. Survival. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, 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 and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.14,
2.15, 2.16, and 9.03 and Article 8 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 Commitments or
the termination of this Agreement or any provision hereof.
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Section 9.06. Counterparts; 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. Except as provided in Section 4.01, 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 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 9.07. 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 9.08. 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 the Borrower
against any of and all the obligations of the 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 9.09. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the law
of the State of New York.
(b) Each of Holdings and the 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 New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and
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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 or any other Loan Document shall
affect any right that the Administrative Agent, or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement or any other Loan
Document against Holdings, the Borrower or its properties in the courts of any
jurisdiction.
(c) Each of Holdings and the 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 or
any other Loan Document 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.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
Section 9.10. 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, ANY OTHER LOAN DOCUMENT 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 AGREE MENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
Section 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
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Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
Section 9.12. Confidentiality. Each of the Administrative Agent 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 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 any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (g) to
any direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provisions of Section 9.12), (h) with the consent of the
Borrower or (i) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
the Administrative Agent or any Lender on a nonconfidential basis from a source
other than Holdings or the Borrower. For the purposes of this Section,
"Information" means all information received from Holdings or the Borrower
relating to Holdings or the Borrower or its business, other than any such
information that is available to the Administrative Agent, or any Lender on a
nonconfidential basis prior to disclosure by Holdings or the Borrower; provided
that, in the case of information received from Holdings or the Borrower 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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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
▇. ▇. ▇▇▇▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President and Treasurer
THE DUN & BRADSTREET CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK, as
Lender, Swingline Lender and
Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.
as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Title: Authorized Signatory
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BANKBOSTON, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Director
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Title: First Vice President - Manager
PARIBAS
By: /s/ ▇▇▇▇ Aizenberg
-------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Title: Director
ROYAL BANK OF CANADA
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Title: Senior Manager
95
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Title: Authorized Signatory
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Title: AVP
UNION BANK OF CALIFORNIA, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Title: Vice President
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ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Title: First Vice President
SUNTRUST BANK, ATLANTA
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Title: Group Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Assistant Vice President
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KZH-IV CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Title: Authorized Agent
DLJ CAPITAL FUNDING, INC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Title: Vice President
KZH-CYPRESS TREE-1 CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Title: Authorized Agent
KZH-ING-2 CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Title: Authorized Agent
THE TRAVELERS INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Investment Officer
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KZH-CRESCENT CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Title: Authorized Agent
TRANSAMERICA LIFE INSURANCE AND
ANNUITY COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: Investment Officer
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING
RATE FUND, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Title: Vice President
OCTAGON LOAN TRUST
By: Octagon Credit Investors as Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Managing Director
KZH-SOLEIL-2 CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Authorized Agent
99
105
METROPOLITAN LIFE INSURANCE
COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Director
NATIONAL WESTMINSTER BANK PLC
By: NatWest Capital Markets Limited, its agent
By: Greenwich Capital Markets, Inc., its agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice President
THE TRAVELERS LIFE AND ANNUITY COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Investment Officer
100