CREDIT AGREEMENT dated as of October 5, 2005, among VENTIV HEALTH, INC., as Borrower, THE GUARANTORS PARTY HERETO, as Guarantors, THE LENDERS PARTY HERETO and UBS SECURITIES LLC, as Sole Bookmanager and Joint Lead Arranger and KEYBANK N.A. as...
$225,000,000
dated
as of October 5, 2005,
among
VENTIV
HEALTH, INC.,
as
Borrower,
THE
GUARANTORS PARTY HERETO,
as
Guarantors,
THE
LENDERS PARTY HERETO
and
UBS
SECURITIES LLC,
as
Sole Bookmanager and Joint Lead Arranger
and
KEYBANK
N.A. as Documentation Agent,
and
UBS
AG, STAMFORD BRANCH,
as
Issuing Bank, Administrative Agent and Collateral Agent,
and
UBS
LOAN FINANCE LLC,
as
Swingline Lender,
and
BANC
OF AMERICA SECURITIES LLC,
as
Joint Lead Arranger,
and
BANK
OF AMERICA, N.A.,
as
Syndication Agent
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TABLE
OF CONTENTS
SectionPage
ARTICLE
I
DEFINITIONS
SECTION
1.01 Defined
Terms
SECTION
1.02 Classification
of Loans and Borrowings
SECTION
1.03 Terms
Generally
SECTION
1.04 Accounting
Terms; GAAP
SECTION
1.05 Resolution
of Drafting Ambiguities
ARTICLE
II
THE
CREDITS
SECTION
2.01 Commitments
SECTION
2.02 Loans
SECTION
2.03 Borrowing
Procedure
SECTION
2.04 Evidence
of Debt; Repayment of Loans
SECTION
2.05 Fees
SECTION
2.06 Interest
on Loans
SECTION
2.07 Termination
and Reduction of Commitments
SECTION
2.08 Interest
Elections
SECTION
2.09 Amortization
of Term Borrowings
SECTION
2.10 Optional
and Mandatory Prepayments of Loans.
SECTION
2.11 Alternate
Rate of Interest
SECTION
2.12 Yield
Protection
SECTION
2.13 Breakage
Payments
SECTION
2.14 Payments
Generally; Pro Rata Treatment; Sharing of Setoffs
SECTION
2.15 Taxes
SECTION
2.16 Mitigation
Obligations; Replacement of Lenders
SECTION
2.17 Swingline
Loans
SECTION
2.18 Letters
of Credit
SECTION
2.19 Increase
in Commitments
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
SECTION
3.01 Organization;
Powers
SECTION
3.02 Authorization;
Enforceability
SECTION
3.03 No
Conflicts
SECTION
3.04 Financial
Statements; Projections
SECTION
3.05 Properties
SECTION
3.06 Intellectual
Property
SECTION
3.07 Equity
Interests and Subsidiaries
SECTION
3.08 Litigation;
Compliance with Laws
SECTION
3.09 Agreements
SECTION
3.10 Federal
Reserve Regulations
SECTION
3.11 Investment
Company Act; Public Utility Holding Company Act
SECTION
3.12 Use
of
Proceeds
SECTION
3.13 Taxes
SECTION
3.14 No
Material Misstatements
SECTION
3.15 Labor
Matters
SECTION
3.16 Solvency
SECTION
3.17 Employee
Benefit Plans
SECTION
3.18 Environmental
Matters
SECTION
3.19 Insurance
SECTION
3.20 Security
Documents
SECTION
3.21 Acquisition
Documents; Representations and Warranties in Acquisition Agreement
SECTION
3.22 Anti-Terrorism
Law
ARTICLE
IV
CONDITIONS
TO CREDIT EXTENSIONS
SECTION
4.01 Conditions
to Initial Credit Extension
SECTION
4.02 Conditions
to All Credit Extensions
ARTICLE
V
AFFIRMATIVE
COVENANTS
SECTION
5.01 Financial
Statements, Reports, etc.
SECTION
5.02 Litigation
and Other Notices
SECTION
5.03 Existence;
Businesses and Properties
SECTION
5.04 Insurance
SECTION
5.05 Obligations
and Taxes
SECTION
5.06 Employee
Benefits
SECTION
5.07 Maintaining
Records; Access to Properties and Inspections; Annual Meetings
SECTION
5.08 Use
of
Proceeds
SECTION
5.09 Compliance
with Environmental Laws; Environmental Reports
SECTION
5.10 Interest
Rate Protection
SECTION
5.11 Additional
Collateral; Additional Guarantors
SECTION
5.12 Security
Interests; Further Assurances
SECTION
5.13 Information
Regarding Collateral
SECTION
5.14 Affirmative
Covenants with Respect to Leases
ARTICLE
VI
NEGATIVE
COVENANTS
SECTION
6.01 Indebtedness
SECTION
6.02 Liens
SECTION
6.03 Sale
and
Leaseback Transactions
SECTION
6.04 Investment,
Loan and Advances
SECTION
6.05 Mergers
and Consolidations
SECTION
6.06 Asset
Sales
SECTION
6.07 Acquisitions
SECTION
6.08 Dividends
SECTION
6.09 Transactions
with Affiliates
SECTION
6.10 Financial
Covenants
SECTION
6.11 Prepayments
of Other Indebtedness; Modifications of Organizational Documents and Other
Documents, etc.
SECTION
6.12 Limitation
on Certain Restrictions on Subsidiaries
SECTION
6.13 Limitation
on Issuance of Capital Stock
SECTION
6.14 Limitation
on Creation of Subsidiaries
SECTION
6.15 Business
SECTION
6.16 [Reserved]
SECTION
6.17 Fiscal
Year
SECTION
6.18 [Reserved]
SECTION
6.19 No
Further Negative Pledge
SECTION
6.20 Anti-Terrorism
Law; Anti-Money Laundering
SECTION
6.21 Embargoed
Person
SECTION
6.22 Post-Closing
Matters
ARTICLE
VII
GUARANTEE
SECTION
7.01 The
Guarantee
SECTION
7.02 Obligations
Unconditional
SECTION
7.03 Reinstatement
SECTION
7.04 Subrogation;
Subordination
SECTION
7.05 Remedies
SECTION
7.06 Instrument
for the Payment of Money
SECTION
7.07 Continuing
Guarantee
SECTION
7.08 General
Limitation on Guarantee Obligations
SECTION
7.09 Release
of Guarantors
ARTICLE
VIII
EVENTS
OF
DEFAULT
SECTION
8.01 Events
of
Default
SECTION
8.02 Rescission
SECTION
8.03 Application
of Proceeds
ARTICLE
IX
THE
ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
SECTION
9.01 Appointment
and Authority
SECTION
9.02 Rights
as
a Lender
SECTION
9.03 Exculpatory
Provisions
SECTION
9.04 Reliance
by Agent
SECTION
9.05 Delegation
of Duties
SECTION
9.06 Resignation
of Agent
SECTION
9.07 Non-Reliance
on Agent and Other Lenders
SECTION
9.08 No
Other
Duties, etc
ARTICLE
X
MISCELLANEOUS
SECTION
10.01 Notices
SECTION
10.02 Waivers;
Amendment
SECTION
10.03 Expenses;
Indemnity; Damage Waiver
SECTION
10.04 Successors
and Assigns.
SECTION
10.05 Survival
of Agreement
SECTION
10.06 Counterparts;
Integration; Effectiveness; Electronic Execution
SECTION
10.07 Severability
SECTION
10.08 Right
of
Setoff
SECTION
10.09 Governing
Law; Jurisdiction; Consent to Service of Process
SECTION
10.10 Waiver
of
Jury Trial
SECTION
10.11 Headings
SECTION
10.12 Treatment
of Certain Information; Confidentiality
SECTION
10.13 USA
PATRIOT Act Notice
SECTION
10.14 Interest
Rate Limitation
SECTION
10.15 Lender
Addendum
SECTION
10.16 Obligations
Absolute
--
SectionPage
ANNEXES
Annex
I Amortization
Table
SCHEDULES
Schedule
1.01(a) Refinancing
Indebtedness to Be Repaid
Schedule
1.01(b) Subsidiary
Guarantors
Schedule
1.01(c) Excluded
Subsidiaries
Schedule
3.03 Governmental
Approvals; Compliance with Laws
Schedule
3.06(c) Violations
or Proceedings
Schedule
3.09 Material
Agreements
Schedule
3.18 Environmental
Matters
Schedule
3.19 Insurance
Schedule
3.21 Acquisition
Documents
Schedule
4.01(g) Local
Counsel
Schedule
4.01(n)(vi) Landlord
Access Agreements
Schedule
4.01(o)(iii) Title
Insurance Amounts
Schedule
6.01(b) Existing
Indebtedness
Schedule
6.02(c) Existing
Liens
Schedule
6.04(b) Existing
Investments
EXHIBITS
Exhibit
A Form
of
Administrative Questionnaire
Exhibit
B Form
of
Assignment and Assumption
Exhibit
C Form
of
Borrowing Request
Exhibit
D Form
of
Compliance Certificate
Exhibit
E Form
of
Interest Election Request
Exhibit
F Form
of
Joinder Agreement
Exhibit
G Form
of
Landlord Access Agreement
Exhibit
H Form
of
LC Request
Exhibit
I Form
of
Lender Addendum
Exhibit
J Form
of
Mortgage
Exhibit
K-1 Form
of
Term Note
Exhibit
K-2 Form
of
Revolving Note
Exhibit
K-3 Form
of
Swingline Note
Exhibit
L-1 Form
of
Perfection Certificate
Exhibit
L-2 Form
of
Perfection Certificate Supplement
Exhibit
M Form
of
Security Agreement
Exhibit
N Form
of
Opinion of Company Counsel
Exhibit
O Form
of
Solvency Certificate
Exhibit
P Form
of
Intercompany Note
Exhibit
Q Form
of
Non-Bank Certificate
--
This
CREDIT AGREEMENT (this “Agreement”)
dated
as of October 5, 2005, among VENTIV
HEALTH, INC.,
a
Delaware corporation (“Borrower”),
the
Subsidiary Guarantors (such term and each other capitalized term used but not
defined herein having the meaning given to it in Article I),
the
Lenders, UBS SECURITIES LLC, as bookmanager (in such capacity, “Bookmanager”)
and as
joint lead arranger (in such capacity, a “Joint
Lead Arranger”),
KeyBank N.A. as documentation agent (in such capacity, “Documentation
Agent”),
UBS
LOAN FINANCE LLC, as swingline lender (in such capacity, “Swingline
Lender”),
UBS
AG, STAMFORD BRANCH, as issuing bank (in such capacity, “Issuing
Bank”),
as
administrative agent (in such capacity, “Administrative
Agent”)
for
the Lenders and as collateral agent (in such capacity, “Collateral
Agent”)
for
the Secured Parties and the Issuing Bank, BANC OF AMERICA SECURITIES LLC, as
joint lead arranger (in such capacity, a “Joint
Lead Arranger”),
and
BANK OF AMERICA, N.A., as syndication agent (in such capacity, “Syndication
Agent”).
WITNESSETH:
WHEREAS,
Borrower and Accordion Holding Corporation, a wholly owned subsidiary of
Borrower, have entered into an acquisition agreement, dated as of September
6,
2005 (as amended, supplemented or otherwise modified from time to time in
accordance with the provisions hereof and thereof, the “Acquisition
Agreement”),
with
the existing shareholders of the Acquired Business (collectively, “Seller”)
to
acquire (the “Acquisition”)
inChord Communications, Inc. (the “Acquired
Business”).
WHEREAS,
Borrower has requested the Lenders to extend credit in the form of (a) Term
Loans on the Closing Date, in an aggregate principal amount not in excess of
$175,000,000, and (b) Revolving Loans at any time and from time to time
prior to the Revolving Maturity Date, in an aggregate principal amount at any
time outstanding not in excess of $50,000,000, none of which may be drawn on
the
Closing Date.
WHEREAS,
Borrower has requested the Swingline Lender to make Swingline Loans, at any
time
and from time to time prior to the Revolving Maturity Date, in an aggregate
principal amount at any time outstanding not in excess of
$5,000,000.
WHEREAS,
Borrower has requested the Issuing Bank to issue letters of credit, in an
aggregate face amount at any time outstanding not in excess of $5,000,000,
to
support payment obligations incurred in the ordinary course of business by
Borrower and its Subsidiaries.
WHEREAS,
the proceeds of the Loans are to be used in accordance with Section 3.12.
NOW,
THEREFORE, the Lenders are willing to extend such credit to Borrower and the
Issuing Bank is willing to issue letters of credit for the account of Borrower
on the terms and subject to the conditions set forth herein. Accordingly, the
parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01 Defined
Terms
.
As used
in this Agreement, the following terms shall have the meanings specified
below:
“ABR”,
when
used in reference to any Loan or Borrowing, is used when such Loan, or the
Loans
comprising such Borrowing, are bearing interest at a rate determined by
reference to the Alternate Base Rate.
“ABR
Borrowing”
shall
mean a Borrowing comprised of ABR Loans.
“ABR
Loan”
shall
mean any ABR Term Loan or ABR Revolving Loan.
“ABR
Revolving Loan”
shall
mean any Revolving Loan bearing interest at a rate determined by reference
to
the Alternate Base Rate in accordance with the provisions of Article II.
“ABR
Term Loan”
shall
mean any Term Loan bearing interest at a rate determined by reference to the
Alternate Base Rate in accordance with the provisions of Article II.
“Acquired
Business”
shall
have the meaning assigned to such term in the first recital hereto.
“Acquisition”
shall
have the meaning assigned to such term in the first recital hereto.
“Acquisition
Agreement”
shall
have the meaning assigned to such term in the first recital hereto.
“Acquisition
Consideration”
shall
mean the purchase consideration for any Permitted Acquisition and all other
payments by Borrower or any of its Subsidiaries in exchange for, or as part
of,
or in connection with, any Permitted Acquisition, whether paid in cash or by
exchange of Equity Interests or of properties or otherwise and whether payable
at or prior to the consummation of such Permitted Acquisition or deferred for
payment at any future time, whether or not any such future payment is subject
to
the occurrence of any contingency, and includes any and all payments
representing the purchase price and any assumptions of Indebtedness, “earn-outs”
and other agreements to make any payment the amount of which is, or the terms
of
payment of which are, in any respect subject to or contingent upon the revenues,
income, cash flow or profits (or the like) of any person or business;
provided
that any
such future payment that is subject to a contingency shall be considered
Acquisition Consideration only to the extent of the reserve, if any, required
under GAAP at the time of such sale to be established in respect thereof by
Borrower or any of its Subsidiaries.
“Acquisition
Documents”
shall
mean the collective reference to the Acquisition Agreement and the other
documents listed on Schedule 3.21.
“Adjusted
LIBOR Rate”
shall
mean, with respect to any Eurodollar Borrowing for any Interest Period,
(a) an interest rate per annum (rounded upward, if necessary, to the
nearest 1/100th of 1%) determined by the Administrative Agent to be equal to
the
LIBOR Rate for such Eurodollar Borrowing in effect for such Interest Period
divided by (b) 1 minus
the
Statutory Reserves (if any) for such Eurodollar Borrowing for such Interest
Period.
“Administrative
Agent”
shall
have the meaning assigned to such term in the preamble hereto and includes
each
other person appointed as the successor pursuant to Article IX.
“Administrative
Agent Fee”
shall
have the meaning assigned to such term in Section 2.05(b).
“Administrative
Questionnaire”
shall
mean an Administrative Questionnaire in substantially the form of Exhibit
A.
“Affiliate”
shall
mean, when used 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; provided,
however,
that,
for purposes of Section 6.09,
the
term “Affiliate” shall also include (i) any person that directly or
indirectly owns more than 10% of any class of Equity Interests of the person
specified or (ii) any person that is an executive officer or director
of
the person specified.
“Agents”
shall
mean the Administrative Agent and the Collateral Agent; and “Agent”
shall
mean any of them.
“Agreement”
shall
have the meaning assigned to such term in the preamble hereto.
“Alternate
Base Rate”
shall
mean, for any day, a rate per annum (rounded upward, if necessary, to the
nearest 1/100th of 1%) equal to the greater of (a) the Base Rate in
effect
on such day and (b) the Federal Funds Effective Rate in effect on such
day
plus
0.50%.
If the Administrative Agent shall have determined (which determination shall
be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability or failure of
the
Administrative Agent to obtain sufficient quotations in accordance with the
terms of the definition thereof, the Alternate Base Rate shall be determined
without regard to clause (b) of the preceding sentence until the
circumstances giving rise to such inability no longer exist. Any change in
the
Alternate Base Rate due to a change in the Base Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Base Rate or the Federal Funds Effective Rate, respectively.
“Anti-Terrorism
Laws”
shall
have the meaning assigned to such term in Section 3.22.
“Applicable
Excess Cash Flow Percentage”
shall
mean (i) 0.0%, so long as the Total Leverage Ratio shall be less than
1.0
to 1.0 as of the most recently completed Excess Cash Flow Period,
(ii) 25.0%, so long as the Total Leverage Ratio shall be less than 2.0
to
1.0 and greater than or equal to 1.0 to 1.0 as of the most recently completed
Excess Cash Flow Period, and (iii) 50.0%, so long as the Total Leverage
Ratio shall be greater than or equal to 2.0 to 1.0 as of the most recently
completed Excess Cash Flow Period.
“Applicable
Fee”
shall
mean, for any day, with respect to any Commitment, 0.375% per
annum.
“Applicable
Margin”
shall
mean, for any day, (i) with respect to any Revolving Loan, in the case of ABR
Loans, 0.5% per annum, and in the case of Eurodollar Loans, 1.5% per annum,
and
(ii) with respect to any Tranche B Loan, in the case of ABR Loans, 0.5% per
annum, and in the case of Eurodollar Loans, 1.5% per annum.
“Applicable
Percentage”
shall
mean, with respect to any Lender, the percentage of the total Loans
and
Commitments represented by such Lender’s Loans and Commitments.
“Approved
Fund”
shall
mean any Fund that is administered or managed by (a) a Lender, (b) an Affiliate
of a Lender or (c) an entity or an Affiliate of an entity that administers
or
manages a Lender.
“Arranger”
shall
have the meaning assigned to such term in the preamble hereto.
“Asset
Sale”
shall
mean (a) any conveyance, sale, lease, sublease, assignment, transfer
or
other disposition (including by way of merger or consolidation and including
any
Sale and Leaseback Transaction) of any property excluding sales of inventory
and
dispositions of cash and cash equivalents, in each case, in the ordinary course
of business, by Borrower or any of its Subsidiaries and (b) any issuance
or
sale of any Equity Interests of any Subsidiary of Borrower, in each case, to
any
person other than (i) Borrower, (ii) any Subsidiary Guarantor
or
(iii) other than for purposes of Section
6.06,
any
other Subsidiary.
“Assignment
and Assumption”
shall
mean an assignment and assumption entered into by a Lender and an Eligible
Assignee (with the consent of any party whose consent is required by
Section
10.04(b)),
and
accepted by the Administrative Agent, in substantially the form of Exhibit B,
or any
other form approved by the Administrative Agent.
“Attributable
Indebtedness”
shall
mean, when used with respect to any Sale and Leaseback Transaction, as at the
time of determination, the present value (discounted at a rate equivalent to
Borrower’s then-current weighted average cost of funds for borrowed money as at
the time of determination, compounded on a semi-annual basis) of the total
obligations of the lessee for rental payments during the remaining term of
the
lease included in any such Sale and Leaseback Transaction.
“Bailee
Letter”
shall
have the meaning assigned thereto in the Security Agreement.
“Base
Rate”
shall
mean, for any day, a rate per annum that is equal to the corporate base rate
of
interest established by the Administrative Agent from time to time; each change
in the Base Rate shall be effective on the date such change is effective. The
corporate base rate is not necessarily the lowest rate charged by the
Administrative Agent to its customers.
“Board”
shall
mean the Board of Governors of the Federal Reserve System of the United
States.
“Board
of Directors”
shall
mean, with respect to any person, (i) in the case of any corporation,
the
board of directors of such person, (ii) in the case of any limited
liability company, the board of managers of such person, (iii) in the
case
of any partnership, the Board of Directors of the general partner of such person
and (iv) in any other case, the functional equivalent of the
foregoing.
“Borrower”
shall
have the meaning assigned to such term in the preamble hereto.
“Borrowing”
shall
mean (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”
shall
mean a request by Borrower in accordance with the terms of Section 2.03
and
substantially in the form of Exhibit C,
or such
other form as shall be approved by the Administrative Agent.
“Business
Day”
shall
mean any day other than a Saturday, Sunday or other day on which banks in New
York City are authorized or required by law to close; provided,
however,
that
when used in connection with a Eurodollar Loan, the term “Business Day” shall
also exclude any day on which banks are not open for dealings in dollar deposits
in the London interbank market.
“Capital
Expenditures”
shall
mean, for any period, without duplication, the increase during that period
in
the gross property, plant or equipment account in the consolidated balance
sheet
of Borrower and its Subsidiaries, determined in accordance with GAAP, whether
such increase is due to purchase of properties for cash or financed by the
incurrence of Indebtedness, but excluding (i) expenditures made in
connection with the replacement, substitution or restoration of property
pursuant to Section 2.10(f)
and
(ii) any portion of such increase attributable solely to acquisitions
of
property, plant and equipment in Permitted Acquisitions.
“Capital
Lease Obligations”
of any
person shall mean the obligations of such person to pay rent or other amounts
under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required
to
be classified and accounted for as capital leases on a balance sheet of such
person under GAAP, and the amount of such obligations shall be the capitalized
amount thereof determined in accordance with GAAP.
“Cash
Equivalents”
shall
mean, as to any person, (a) securities issued, or directly, unconditionally
and fully guaranteed or insured, by the United States or any agency or
instrumentality thereof (provided
that the
full faith and credit of the United States is pledged in support thereof) having
maturities of not more than one year from the date of acquisition by such
person; (b) time deposits and certificates of deposit of any Lender
or any
commercial bank having, or which is the principal banking subsidiary of a bank
holding company organized under the laws of the United States, any state thereof
or the District of Columbia having, capital and surplus aggregating in excess
of
$500.0 million and a rating of “A” (or such other similar equivalent rating) or
higher by at least one nationally recognized statistical rating organization
(as
defined in Rule 436 under the Securities Act) with maturities of not more than
one year from the date of acquisition by such person; (c) repurchase
obligations with a term of not more than 30 days for underlying securities
of the types described in clause (a) above entered into with any bank
meeting the qualifications specified in clause (b) above, which repurchase
obligations are secured by a valid perfected security interest in the underlying
securities; (d) commercial paper issued by any person incorporated in
the
United States rated at least A-1 or the equivalent thereof by Standard &
Poor’s Rating Service or at least P-1 or the equivalent thereof by ▇▇▇▇▇’▇
Investors Service Inc., and in each case maturing not more than one year after
the date of acquisition by such person; (e) investments in money market
funds substantially all of whose assets are comprised of securities of the
types
described in clauses (a) through (d) above; and (f) demand deposit
accounts maintained in the ordinary course of business.
“Cash
Interest Expense”
shall
mean, for any period, Consolidated Interest Expense for such period,
less
the sum
of (a) interest on any debt paid by the increase in the principal amount
of
such debt including by issuance of additional debt of such kind, (b) items
described in clause (c) or, other than to the extent paid in cash, clause
(g) of the definition of “Consolidated Interest Expense” and (c) gross
interest income of Borrower and its Subsidiaries for such period.
“Casualty
Event”
shall
mean any involuntary loss of title, any involuntary loss of, damage to or any
destruction of, or any condemnation or other taking (including by any
Governmental Authority) of, any property of Borrower or any of its Subsidiaries;
provided
that no
such event shall constitute a Casualty Event unless Borrower and its
Subsidiaries receive insurance proceeds or proceeds of a condemnation award
or
other compensation in respect of such property in an aggregate amount greater
than or equal to $500,000. “Casualty Event” shall include but not be limited to
any taking of all or any part of any Real Property of any person or any part
thereof, in or by condemnation or other eminent domain proceedings pursuant
to
any Requirement of Law, or by reason of the temporary requisition of the use
or
occupancy of all or any part of any Real Property of any person or any part
thereof by any Governmental Authority, civil or military, or any settlement
in
lieu thereof.
“CERCLA”
shall
mean the Comprehensive Environmental Response, Compensation, and Liability
Act
of 1980, as amended, 42 U.S.C. § 9601 et
seq. and
all
implementing regulations.
A
“Change
in Control”
shall
be deemed to have occurred if:
(a) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act) is or becomes the beneficial owner (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that for purposes of this clause such
person or group shall be deemed to have “beneficial ownership” of all securities
that such person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of Voting Stock of Borrower representing more than 40% of the voting
power of the total outstanding Voting Stock of Borrower; or
(b) during
any period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of Borrower (together with any new
directors whose election to such Board of Directors or whose nomination for
election was approved by a vote of a majority of the members of the Board of
Directors of Borrower, which members comprising such majority are then still
in
office and were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of
Borrower.
For
purposes of this definition, a person shall not be deemed to have beneficial
ownership of Equity Interests subject to a stock purchase agreement, merger
agreement or similar agreement until the consummation of the transactions
contemplated by such agreement.
“Change
in Law”
shall
mean the occurrence, after the date of this Agreement, of any of the following:
(a) the adoption or taking into effect of any law, treaty, order, policy,
rule or regulation, (b) any change in any law, treaty, order, policy,
rule
or regulation or in the administration, interpretation or application thereof
by
any Governmental Authority or (c) the making or issuance of any request,
guideline or directive (whether or not having the force of law) by any
Governmental Authority.
“Charges”
shall
have the meaning assigned to such term in Section 10.14.
“Class,”
when
used in reference to any Loan or Borrowing, refers to whether such Loan, or
the
Loans comprising such Borrowing, are Revolving Loans, Tranche B Loans,
Incremental Term Loans that are not Tranche B Loans or Swingline Loans
and,
when used in reference to any Commitment, refers to whether such Commitment
is a
Revolving Commitment, Tranche B Commitment or Swingline Commitment,
in each
case, under this Agreement as originally in effect or pursuant to Section
2.19,
of
which such Loan, Borrowing or Commitment shall be a part.
“Closing
Date”
shall
mean the date of the initial Credit Extension hereunder.
“Code”
shall
mean the Internal Revenue Code of 1986, as amended from time to
time.
“Collateral”
shall
mean, collectively, all of the Security Agreement Collateral, the Mortgaged
Property and all other property of whatever kind and nature subject or purported
to be subject from time to time to a Lien under any Security
Document.
“Collateral
Agent”
shall
have the meaning assigned to such term in the preamble hereto.
“Commercial
Letter of Credit”
shall
mean any letter of credit or similar instrument issued for the purpose of
providing credit support in connection with the purchase of materials, goods
or
services by Borrower or any of its Subsidiaries in the ordinary course of their
businesses.
“Commitment”
shall
mean, with respect to any Lender, such Lender’s Revolving Commitment,
Tranche B Commitment or Swingline Commitment, and any Commitment to
make
Term Loans or Revolving Loans of a new Class extended by such Lender as provided
in Section
2.19.
“Commitment
Fee”
shall
have the meaning assigned to such term in Section 2.05(a).
“Companies”
shall
mean Borrower and its Subsidiaries; and “Company”
shall
mean any one of them.
“Compliance
Certificate”
shall
mean a certificate of a Financial Officer substantially in the form of
Exhibit D.
“Confidential
Information Memorandum”
shall
mean that certain confidential information memorandum dated as of May of
2005.
“Consolidated
Amortization Expense”
shall
mean, for any period, the amortization expense of Borrower and its Subsidiaries
for such period, determined on a consolidated basis in accordance with
GAAP.
“Consolidated
Current Assets”
shall
mean, as at any date of determination, the total assets of Borrower and its
Subsidiaries which may properly be classified as current assets on a
consolidated balance sheet of Borrower and its Subsidiaries in accordance with
GAAP.
“Consolidated
Current Liabilities”
shall
mean, as at any date of determination, the total liabilities of Borrower and
its
Subsidiaries which may properly be classified as current liabilities (other
than
the current portion of any Indebtedness) on a consolidated balance sheet of
Borrower and its Subsidiaries in accordance with GAAP.
“Consolidated
Depreciation Expense”
shall
mean, for any period, the depreciation expense of Borrower and its Subsidiaries
for such period, determined on a consolidated basis in accordance with
GAAP.
“Consolidated
EBITDA”
shall
mean, for any period, Consolidated Net Income for such period, adjusted by
(x) adding
thereto,
in each
case only to the extent (and in the same proportion) deducted in determining
such Consolidated Net Income and without duplication (and with respect to the
portion of Consolidated Net Income attributable to any Subsidiary of Borrower
only if a corresponding amount would be permitted at the date of determination
to be distributed to Borrower by such Subsidiary without prior approval (that
has not been obtained), pursuant to the terms of its Organizational Documents
and all agreements, instruments and Requirements of Law applicable to such
Subsidiary or its equityholders):
(a) Consolidated
Interest Expense for such period,
(b) Consolidated
Amortization Expense for such period,
(c) Consolidated
Depreciation Expense for such period,
(d) Consolidated
Tax Expense for such period,
(e) costs
and
expenses directly incurred in connection with the Transactions, and
(f) the
aggregate amount of all other non-cash charges reducing Consolidated Net Income
(excluding any non-cash charge that results in an accrual of a reserve for
cash
charges in any future period) for such period, and
(y) subtracting
therefrom
the
aggregate amount of all non-cash items increasing Consolidated Net Income (other
than the accrual of revenue or recording of receivables in the ordinary course
of business) for such period.
Other
than for purposes of calculating Excess Cash Flow, Consolidated EBITDA shall
be
calculated on a Pro Forma Basis to give effect to the Acquisition, any Permitted
Acquisition and Asset Sales (other than any dispositions in the ordinary course
of business) consummated at any time on or after the first day of the Test
Period thereof as if the Acquisition and each such Permitted Acquisition had
been effected on the first day of such period and as if each such Asset Sale
had
been consummated on the day prior to the first day of such period.
“Consolidated
Fixed Charge Coverage Ratio”
shall
mean, for any Test Period, the ratio of (a) Consolidated EBITDA for
such
Test Period to (b) Consolidated Fixed Charges for such Test
Period.
“Consolidated
Fixed Charges”
shall
mean, for any period, the sum, without duplication, of
(a) Consolidated
Interest Expense for such period;
(b) the
aggregate amount of Capital Expenditures for such period;
(c) all
cash
payments in respect of income taxes made during such period (net of any cash
refund in respect of income taxes actually received during such
period);
(d) the
principal amount of all scheduled amortization payments on all Indebtedness
(including the principal component of all Capital Lease Obligations, but
excluding such amortization payments on Indebtedness incurred to finance Capital
Expenditures included in clause (b) above in such period or any prior period)
of
Borrower and its Subsidiaries for such period (as determined on the first day
of
the respective period);
(e) the
product of (i) all dividend payments on any series of Disqualified Capital
Stock of Borrower or any of its Subsidiaries (other than dividend payments
to
Borrower or any of its Subsidiaries) multiplied
by
(ii) a fraction, the numerator of which is one and the denominator of
which
is one minus the then current combined federal, state and local statutory tax
rate of Borrower and its Subsidiaries, expressed as a decimal; and
(f) the
product of (i) all cash dividend payments on any Preferred Stock (other
than Disqualified Capital Stock) of Borrower or any of its Subsidiaries (other
than dividend payments to Borrower or any of its Subsidiaries) multiplied
by
(ii) a fraction, the numerator of which is one and the denominator of
which
is one minus the then current combined federal, state and local statutory tax
rate of Borrower and its Subsidiaries, expressed as a decimal.
“Consolidated
Indebtedness”
shall
mean, as at any date of determination, the aggregate amount of all Indebtedness
of Borrower and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP.
“Consolidated
Interest Coverage Ratio”
shall
mean, for any Test Period, the ratio of (x) Consolidated EBITDA for
such
Test Period to (y) Consolidated Interest Expense for such Test
Period.
“Consolidated
Interest Expense”
shall
mean, for any period, the total consolidated interest expense of Borrower and
its Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP plus,
without
duplication:
(a) imputed
interest on Capital Lease Obligations and Attributable Indebtedness of Borrower
and its Subsidiaries for such period;
(b) commissions,
discounts and other fees and charges owed by Borrower or any of its Subsidiaries
with respect to letters of credit securing financial obligations, bankers’
acceptance financing and receivables financings for such period;
(c) amortization
of debt issuance costs, debt discount or premium and other financing fees and
expenses incurred by Borrower or any of its Subsidiaries for such
period;
(d) cash
contributions to any employee stock ownership plan or similar trust made by
Borrower or any of its Subsidiaries to the extent such contributions are used
by
such plan or trust to pay interest or fees to any person (other than Borrower
or
a Wholly Owned Subsidiary) in connection with Indebtedness incurred by such
plan
or trust for such period;
(e) all
interest paid or payable with respect to discontinued operations of Borrower
or
any of its Subsidiaries for such period;
(f) the
interest portion of any deferred payment obligations of Borrower or any of
its
Subsidiaries for such period; and
(g) all
interest on any Indebtedness of Borrower or any of its Subsidiaries of the
type
described in clause (f) or (k) of the definition of “Indebtedness” for such
period;
provided
that
(a) to the extent directly related to the Transactions, debt issuance
costs, debt discount or premium and other financing fees and expenses shall
be
excluded from the calculation of Consolidated Interest Expense and
(b) Consolidated Interest Expense shall be calculated after giving effect
to Hedging Agreements (including associated costs), but excluding unrealized
gains and losses with respect to Hedging Agreements.
Consolidated
Interest Expense shall be calculated on a Pro Forma Basis to give effect to
any
Indebtedness incurred, assumed or permanently repaid or extinguished during
the
relevant Test Period in connection with the Acquisition, any Permitted
Acquisitions and Asset Sales (other than any dispositions in the ordinary course
of business) as if such incurrence, assumption, repayment or extinguishing
had
been effected on the first day of such period.
“Consolidated
Net Income”
shall
mean, for any period, the consolidated net income (or loss) of Borrower and
its
Subsidiaries determined on a consolidated basis in accordance with GAAP;
provided
that
there shall be excluded from such net income (to the extent otherwise included
therein), without duplication:
(a) the
net
income (or loss) of any person (other than a Subsidiary of Borrower) in which
any person other than Borrower and its Subsidiaries has an ownership interest,
except to the extent that cash in an amount equal to any such income has
actually been received by Borrower or (subject to clause (b) below)
any of
its Subsidiaries during such period;
(b) the
net
income of any Subsidiary of Borrower during such period to the extent that
the
declaration or payment of dividends or similar distributions by such Subsidiary
of that income is not permitted by operation of the terms of its Organizational
Documents or any agreement, instrument or Requirement of Law applicable to
that
Subsidiary during such period, except that Borrower’s equity in net loss of any
such Subsidiary for such period shall be included in determining Consolidated
Net Income;
(c) any
gain
(or loss), together with any related provisions for taxes on any such gain
(or
the tax effect of any such loss), realized during such period by Borrower or
any
of its Subsidiaries upon any Asset Sale (other than any dispositions in the
ordinary course of business) by Borrower or any of its
Subsidiaries;
(e) gains
and
losses due solely to fluctuations in currency values and the related tax effects
determined in accordance with GAAP for such period;
(f) earnings
resulting from any reappraisal, revaluation or write-up of assets;
(g) unrealized
gains and losses with respect to Hedging Obligations for such period;
and
(h) any
extraordinary or nonrecurring gain (or extraordinary or nonrecurring loss),
together with any related provision for taxes on any such gain (or the tax
effect of any such loss), recorded or recognized by Borrower or any of its
Subsidiaries during such period.
For
purposes of this definition of “Consolidated Net Income,”“nonrecurring”
means
any gain or loss as of any date that is not reasonably likely to recur within
the two years following such date; provided
that if
there was a gain or loss similar to such gain or loss within the two years
preceding such date, such gain or loss shall not be deemed
nonrecurring.
“Consolidated
Tax Expense”
shall
mean, for any period, the tax expense of Borrower and its Subsidiaries, for
such
period, determined on a consolidated basis in accordance with GAAP.
“Contested
Collateral Lien Conditions”
shall
mean, with respect to any Permitted Lien of the type described in
clauses (a), (b), (e) and (f) of Section 6.02,
the
following conditions:
(a) Borrower
shall cause any proceeding instituted contesting such Lien to stay the sale
or
forfeiture of any portion of the Collateral on account of such
Lien;
(b) at
the
option and at the request of the Administrative Agent, to the extent such Lien
is in an amount in excess of $100,000, the appropriate Loan Party shall maintain
cash reserves in an amount sufficient to pay and discharge such Lien and the
Administrative Agent’s reasonable estimate of all interest and penalties related
thereto; and
(c) such
Lien
shall in all respects be subject and subordinate in priority to the Lien and
security interest created and evidenced by the Security Documents, except if
and
to the extent that the Requirement of Law creating, permitting or authorizing
such Lien provides that such Lien is or must be superior to the Lien and
security interest created and evidenced by the Security Documents.
“Contingent
Obligation”
shall
mean, as to any person, any obligation, agreement, understanding or arrangement
of such person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations (“primary
obligations”)
of any
other person (the “primary
obligor”)
in any
manner, whether directly or indirectly, including any obligation of such person,
whether or not contingent, (a) to purchase any such primary obligation
or
any property constituting direct or indirect security therefor; (b) to
advance or supply funds (i) for the purchase or payment of any such
primary
obligation or (ii) to maintain working capital or equity capital of
the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor; (c) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation;
(d) with respect to bankers’ acceptances, letters of credit and similar
credit arrangements, until a reimbursement obligation arises (which
reimbursement obligation shall constitute Indebtedness); or (e) otherwise
to assure or hold harmless the holder of such primary obligation against loss
in
respect thereof; provided,
however,
that
the term “Contingent Obligation” shall not include endorsements of instruments
for deposit or collection in the ordinary course of business or any product
warranties. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation
in
respect of which such Contingent Obligation is made (or, if less, the maximum
amount of such primary obligation for which such person may be liable, whether
singly or jointly, pursuant to the terms of the instrument evidencing such
Contingent Obligation) or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such person is required
to
perform thereunder) as determined by such person in good faith.
“Control”
shall
mean 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
ownership of voting securities, by contract or otherwise, and the terms
“Controlling”
and
“Controlled”
shall
have meanings correlative thereto.
“Control
Agreement”
shall
have the meaning assigned to such term in the Security Agreement.
“Credit
Extension”
shall
mean, as the context may require, (i) the making of a Loan by a Lender or
(ii) the issuance of any Letter of Credit, or the amendment, extension
or
renewal of any existing Letter of Credit, by the Issuing Bank.
“Debt
Issuance”
shall
mean the incurrence by Borrower or any of its Subsidiaries of any Indebtedness
after the Closing Date (other than as permitted by Section 6.01).
“Debt
Service”
shall
mean, for any period, Cash Interest Expense for such period plus scheduled
principal amortization of all Indebtedness for such period.
“Default”
shall
mean any event, occurrence or condition which is, or upon notice, lapse of
time
or both would constitute, an Event of Default.
“Default
Rate”
shall
have the meaning assigned to such term in Section
2.06(c).
“Disqualified
Capital Stock”
shall
mean any Equity Interest which, by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable), or upon the
happening of any event, (a) matures (excluding any maturity as the result
of an optional redemption by the issuer thereof) or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof, in whole or in part, on or prior to the first
anniversary of the Final Maturity Date, (b) is convertible into or
exchangeable (unless at the sole option of the issuer thereof) for (i) debt
securities or (ii) any Equity Interests referred to in (a) above, in each case
at any time on or prior to the first anniversary of the Final Maturity Date,
or
(c) contains any repurchase obligation which may come into effect prior
to
payment in full of all Obligations; provided,
however,
that
any Equity Interests that would not constitute Disqualified Capital Stock but
for provisions thereof giving holders thereof (or the holders of any security
into or for which such Equity Interests is convertible, exchangeable or
exercisable) the right to require the issuer thereof to redeem such Equity
Interests upon the occurrence of a change in control or an asset sale occurring
prior to the first anniversary of the Final Maturity Date shall not constitute
Disqualified Capital Stock if such Equity Interests provide that the issuer
thereof will not redeem any such Equity Interests pursuant to such provisions
prior to the repayment in full of the Obligations.
“Dividend”
with
respect to any person shall mean that such person has declared or paid a
dividend or returned any equity capital to the holders of its Equity Interests
or authorized or made any other distribution, payment or delivery of property
(other than Qualified Capital Stock of such person) or cash to the holders
of
its Equity Interests as such, or redeemed, retired, purchased or otherwise
acquired, directly or indirectly, for consideration any of its Equity Interests
outstanding (or any options or warrants issued by such person with respect
to
its Equity Interests), or set aside any funds for any of the foregoing purposes,
or shall have permitted any of its Subsidiaries to purchase or otherwise acquire
for consideration any of the Equity Interests of such person outstanding (or
any
options or warrants issued by such person with respect to its Equity Interests).
Without limiting the foregoing, “Dividends” with respect to any person shall
also include all payments made or required to be made by such person with
respect to any stock appreciation rights, plans, equity incentive or achievement
plans or any similar plans or setting aside of any funds for the foregoing
purposes.
“Documentation
Agent”
shall
have the meaning assigned to such term in the preamble hereto.
“dollars”
or
“$”
shall
mean lawful money of the United States.
“Domestic
Subsidiary”
shall
mean any Subsidiary that is organized or existing under the laws of the United
States, any state thereof or the District of Columbia.
“Eligible
Assignee”
shall
mean (a) if the assignment does not include assignment of a Revolving
Commitment, (i) any Lender, (ii) an Affiliate of any Lender, (iii) an
Approved Fund and (iv) any other person approved by the Administrative
Agent (such approval not to be unreasonably withheld or delayed) and (b) if
the assignment includes assignment of a Revolving Commitment, (i) any
Revolving Lender, (ii) an Affiliate of any Revolving Lender, (iii) an
Approved Fund of a Revolving Lender and (iv) any other person approved
by
the Administrative Agent, the Issuing Bank, the Swingline Lender and Borrower
(each such approval not to be unreasonably withheld or delayed); provided
that (x)
no approval of Borrower shall be required during the continuance of a Default
or
prior to the completion of the primary syndication of the Commitments and Loans
(as determined by the Arranger) and (y) “Eligible Assignee” shall not
include Borrower or any of its Affiliates or Subsidiaries or any natural
person.
“Embargoed
Person”
shall
have the meaning assigned to such term in Section 6.21.
“Environment”
shall
mean ambient air, indoor air, surface water and groundwater (including potable
water, navigable water and wetlands), the land surface or subsurface strata,
natural resources, the workplace or as otherwise defined in any Environmental
Law.
“Environmental
Claim”
shall
mean any claim, notice, demand, order, action, suit, proceeding or other
communication alleging liability for or obligation with respect to any
investigation, remediation, removal, cleanup, response, corrective action,
damages to natural resources, personal injury, property damage, fines, penalties
or other costs resulting from, related to or arising out of (i) the
presence, Release or threatened Release in or into the Environment of Hazardous
Material at any location or (ii) any violation or alleged violation
of any
Environmental Law, and shall include any claim seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting
from, related to or arising out of the presence, Release or threatened Release
of Hazardous Material or alleged injury or threat of injury to health, safety
or
the Environment.
“Environmental
Law”
shall
mean any and all present and future treaties, laws, statutes, ordinances,
regulations, rules, decrees, orders, judgments, consent orders, consent decrees,
code or other binding requirements, and the common law, relating to protection
of public health or the Environment, the Release or threatened Release of
Hazardous Material, natural resources or natural resource damages, or
occupational safety or health, and any and all Environmental
Permits.
“Environmental
Permit”
shall
mean any permit, license, approval, registration, notification, exemption,
consent or other authorization required by or from a Governmental Authority
under Environmental Law.
“Equipment”
shall
have the meaning assigned to such term in the Security Agreement.
“Equity
Interest”
shall
mean, with respect to any person, any and all shares, interests, participations
or other equivalents, including membership interests (however designated,
whether voting or nonvoting), of equity of such person, including, if such
person is a partnership, partnership interests (whether general or limited)
and
any other interest or participation that confers on a person the right to
receive a share of the profits and losses of, or distributions of property
of,
such partnership, whether outstanding on the date hereof or issued after the
Closing Date, but excluding debt securities convertible or exchangeable into
such equity.
“ERISA”
shall
mean the Employee Retirement Income Security Act of 1974, as the same may be
amended from time to time.
“ERISA
Affiliate”
shall
mean, with respect to any person, any trade or business (whether or not
incorporated) that, together with such person, is treated as a single employer
under Section 414 of the Code.
“ERISA
Event”
shall
mean (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 by regulation); (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 failure to make by its due date a required installment
under Section 412(m) of the Code with respect to any Plan or the failure
to
make any required contribution to a Multiemployer Plan; (d) 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; (e) the incurrence by any Company or any of its ERISA Affiliates
of
any liability under Title IV of ERISA with respect to the termination of any
Plan; (f) the receipt by any Company or any of its ERISA Affiliates
from
the PBGC or a plan administrator of any notice relating to the intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan,
or
the occurrence of any event or condition which could reasonably be expected
to
constitute grounds under ERISA for the termination of, or the appointment of
a
trustee to administer, any Plan; (g) the incurrence by any Company or
any
of its ERISA Affiliates of any liability with respect to the withdrawal from
any
Plan or Multiemployer Plan; (h) the receipt by any Company or its ERISA
Affiliates 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; (i) the
“substantial cessation of operations” within the meaning of Section 4062(e) of
ERISA with respect to a Plan; (j) the making of any amendment to any
Plan
which could result in the imposition of a lien or the posting of a bond or
other
security; and (k) the occurrence of a nonexempt prohibited transaction
(within the meaning of Section 4975 of the Code or Section 406
of
ERISA) which could reasonably be expected to result in liability to any
Company.
“Escrow
Agreement”
shall
mean the Escrow Agreement, dated the date hereof, between Borrower and UBS
AG,
Stamford Branch.
“Eurodollar
Borrowing”
shall
mean a Borrowing comprised of Eurodollar Loans.
“Eurodollar
Loan”
shall
mean any Eurodollar Revolving Loan or Eurodollar Term Loan.
“Eurodollar
Revolving Borrowing”
shall
mean a Borrowing comprised of Eurodollar Revolving Loans.
“Eurodollar
Revolving Loan”
shall
mean any Revolving Loan bearing interest at a rate determined by reference
to
the Adjusted LIBOR Rate in accordance with the provisions of Article II.
“Eurodollar
Term Borrowing”
shall
mean a Borrowing comprised of Eurodollar Term Loans.
“Eurodollar
Term Loan”
shall
mean any Term Loan bearing interest at a rate determined by reference to the
Adjusted LIBOR Rate in accordance with the provisions of Article II.
“Event
of Default”
shall
have the meaning assigned to such term in Section
8.01.
“Excess
Amount”
shall
have the meaning assigned to such term in Section 2.10(h).
“Excess
Cash Flow”
shall
mean, for any Excess Cash Flow Period, Consolidated EBITDA for such Excess
Cash
Flow Period, minus,
without
duplication:
(a) Debt
Service for such Excess Cash Flow Period;
(b) any
voluntary prepayments of Term Loans and any permanent voluntary reductions
to
the Revolving Commitments to the extent that an equal amount of the Revolving
Loans simultaneously is repaid, in each case so long as such amounts are not
already reflected in Debt Service, during such Excess Cash Flow
Period;
(c) Capital
Expenditures during such Excess Cash Flow Period (excluding Capital Expenditures
made in such Excess Cash Flow Period where a certificate in the form
contemplated by the following clause (d) was previously delivered) that
are
paid in cash;
(d) Capital
Expenditures that Borrower or any of its Subsidiaries shall, during such Excess
Cash Flow Period, become obligated to make but that are not made during such
Excess Cash Flow Period; provided
that
Borrower shall deliver a certificate to the Administrative Agent not later
than
90 days after the end of such Excess Cash Flow Period, signed by a
Responsible Officer of Borrower and certifying that such Capital Expenditures
will be made in the following Excess Cash Flow Period;
(e) the
aggregate amount of investments made in cash during such period pursuant to
Sections 6.04(e)
and
(i);
(f) taxes
of
Borrower and its Subsidiaries that were paid in cash during such Excess Cash
Flow Period or will be paid within six months after the end of such Excess
Cash
Flow Period and for which reserves have been established;
(g) the
absolute value of the difference, if negative, of the amount of Net Working
Capital at the end of the prior Excess Cash Flow Period over the amount of
Net
Working Capital at the end of such Excess Cash Flow Period;
(h) losses
excluded from the calculation of Consolidated Net Income by operation of
clause (c) or (g) of the definition thereof that are paid in cash during
such Excess Cash Flow Period;
(i) to
the
extent added to determine Consolidated EBITDA, all items that did not result
from a cash payment to Borrower or any of its Subsidiaries on a consolidated
basis during such Excess Cash Flow Period; and
(j) the
aggregate amount of Permitted Acquisitions made in cash during such period
pursuant to Section
6.07(f);
provided
that any
amount deducted pursuant to any of the foregoing clauses that will be paid
after
the close of such Excess Cash Flow Period shall not be deducted again in a
subsequent Excess Cash Flow Period; plus,
without
duplication:
(i)the
difference, if positive, of the amount of Net Working Capital at the end of
the
prior Excess Cash Flow Period over the amount of Net Working Capital at the
end
of such Excess Cash Flow Period;
(ii)all
proceeds received during such Excess Cash Flow Period of any Indebtedness to
the
extent used to finance any Capital Expenditure (other than Indebtedness under
this Agreement to the extent there is no corresponding deduction to Excess
Cash
Flow above in respect of the use of such borrowings);
(iii)to
the
extent any permitted Capital Expenditures referred to in clause (d) above do
not
occur in the Excess Cash Flow Period specified in the certificate of Borrower
provided pursuant to clause (d) above, such amounts of Capital Expenditures
that
were not so made in the Excess Cash Flow Period specified in such
certificates;
(iv)any
return on or in respect of investments received in cash during such period,
which investments were made pursuant to Section 6.04(e)
or
(i);
(v)income
or
gain excluded from the calculation of Consolidated Net Income by operation
of
clause (c) or (g) of the definition thereof that is realized in cash
during
such Excess Cash Flow Period (except to the extent such gain is subject to
Section 2.10(c),
(d),
(e)
or
(f));
(vi)if
deducted in the computation of Consolidated EBITDA, interest income;
and
(vii)to
the
extent subtracted in determining Consolidated EBITDA, all items that did not
result from a cash payment by Borrower or any of its Subsidiaries on a
consolidated basis during such Excess Cash Flow Period.
“Excess
Cash Flow Period”
shall
mean each fiscal year of Borrower commencing with Borrower’s fiscal year ending
December 31, 2006.
“Exchange
Act”
shall
mean the Securities Exchange Act of 1934, as amended.
“Excluded
Subsidiary”
shall
mean (i) each existing Subsidiary of Borrower designated on Schedule
1.01(c)
and (ii)
any other Subsidiary of Borrower that is not a Wholly Owned Subsidiary of
Borrower designated by Borrower to be an Excluded Subsidiary with notice in
writing to the Administrative Agent of such designation; provided
that the
total assets and revenues of the Excluded Subsidiaries, in the aggregate, shall
not exceed 5% of the total assets or 5% of the revenues of Borrower and its
Subsidiaries on a pro forma basis as of, and for the twelve month period ending
on, the date of the last annual or quarterly balance sheet furnished to the
Administrative Agent pursuant to Section
5.01,
determined on a consolidated basis in accordance with GAAP. For purposes of
calculating the 5% thresholds set forth above, (i) the total assets and revenues
of an Excluded Subsidiary shall be limited to such amounts as represent
Borrower’s direct or indirect proportionate equity ownership interest in such
Excluded Subsidiary and (ii) the consolidated total assets and consolidated
revenues of Borrower and its Subsidiaries shall exclude such amounts as
represent the proportionate equity ownership interest in such Excluded
Subsidiary not owned directly or indirectly by Borrower.
“Excluded
Taxes”
shall
mean, with respect to the Administrative Agent, any Lender, the Issuing Bank
or
any other recipient of any payment to be made by or on account of any obligation
of Borrower hereunder, (a) taxes imposed on or measured by its net income
(however denominated), franchise taxes imposed on it (in lieu of net income
taxes) and branch profits taxes imposed on it, by a jurisdiction (or any
political subdivision thereof) as a result of the recipient being organized
or
having an office, fixed place of business or other permanent establishment
or,
in the case of any Lender, its applicable lending office in such jurisdiction
and (b) in the case of a Foreign Lender, any U.S. federal withholding tax that
(i) is imposed on amounts payable to such Foreign Lender at the time such
Foreign Lender becomes a party hereto (or designates a new lending office),
except (x) to the extent that such Foreign Lender (or its assignor, if any)
was
entitled, immediately prior to the time of designation of a new lending office
(or assignment), to receive additional amounts from Borrower with respect to
such withholding tax pursuant to Section
2.15(a)
or (y)
if such Foreign Lender is an assignee pursuant to a request by Borrower under
Section
2.16;
provided
that
this
subclause (b)(i) shall not apply to any Tax imposed on a Lender in connection
with an interest or participation in any Loan or other obligation that such
Lender was required to acquire pursuant to Section
2.14(d), or
(ii)
is attributable to such Foreign Lender’s failure to comply with Section
2.15(e).
“Executive
Order”
shall
have the meaning assigned to such term in Section 3.22.
“Existing
Lien”
shall
have the meaning assigned to such term in Section 6.02(c).
“Federal
Funds Effective Rate”
shall
mean, for any day, the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System of the United States
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 of the quotations
for
the day for such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it.
“Fees”
shall
mean the Commitment Fees, the Administrative Agent Fees, the LC Participation
Fees and the Fronting Fees.
“Final
Maturity Date”
shall
mean the latest of the Revolving Maturity Date, the Tranche B Maturity
Date
and any Incremental Term Loan Maturity Date applicable to existing Incremental
Term Loans, as of any date of determination.
“Financial
Officer”
of any
person shall mean the chief financial officer, principal accounting officer,
treasurer or controller of such person.
“FIRREA”
shall
mean the Federal Institutions Reform, Recovery and Enforcement Act of 1989,
as
amended.
"Foreign
Plan"
shall
mean any employee benefit plan, program, policy, arrangement or agreement
maintained or contributed to by, or entered into with, any Company with respect
to employees employed outside the United States.
“Foreign
Lender”
shall
mean any Lender that is not, for United States federal income tax purposes,
(i) an individual who is a citizen or resident of the United States,
(ii) a corporation, partnership or other entity treated as a corporation
or
partnership created or organized in or under the laws of the United States,
or
any political subdivision thereof, (iii) an estate whose income is subject
to U.S. federal income taxation regardless of its source or (iv) a trust
if
a court within the United States is able to exercise primary supervision over
the administration of such trust and one or more United States persons have
the
authority to control all substantial decisions of such trust.
“Foreign
Subsidiary”
shall
mean a Subsidiary that is organized under the laws of a jurisdiction other
than
the United States or any state thereof or the District of Columbia.
“Fronting
Fee”
shall
have the meaning assigned to such term in Section 2.05(c).
“Fund”
shall
mean any person that is (or will be) engaged in making, purchasing, holding
or
otherwise investing in commercial loans and similar extensions of credit in
the
ordinary course of its business.
“GAAP”
shall
mean generally accepted accounting principles in the United States applied
on a
consistent basis.
“Governmental
Authority”
shall
mean the government of the United States or any other nation, or of any
political subdivision thereof, whether state, provincial 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 (including
any
supra-national bodies such as the European Union or the European Central
Bank).
“Governmental
Real Property Disclosure Requirements”
shall
mean any Requirement of Law of any Governmental Authority requiring notification
of the buyer, lessee, mortgagee, assignee or other transferee of any Real
Property, facility, establishment or business, or notification, registration
or
filing to or with any Governmental Authority, in connection with the sale,
lease, mortgage, assignment or other transfer (including any transfer of
control) of any Real Property, facility, establishment or business, of the
actual or threatened presence or Release in or into the Environment, or the
use,
disposal or handling of Hazardous Material on, at, under or near the Real
Property, facility, establishment or business to be sold, leased, mortgaged,
assigned or transferred.
“Guaranteed
Obligations”
shall
have the meaning assigned to such term in Section 7.01.
“Guarantees”
shall
mean the guarantees issued pursuant to Article VII
by the
Subsidiary Guarantors.
“Guarantors”
shall
mean the Subsidiary Guarantors.
“Hazardous
Materials”
shall
mean the following: hazardous substances; hazardous wastes; polychlorinated
biphenyls (“PCBs”)
or any
substance or compound containing PCBs; asbestos or any asbestos-containing
materials in any form or condition; radon or any other radioactive materials
including any source, special nuclear or by-product material; petroleum, crude
oil or any fraction thereof; and any other pollutant or contaminant or
chemicals, wastes, materials, compounds, constituents or substances, subject
to
regulation or which can give rise to liability under any Environmental
Laws.
“Hedging
Agreement”
shall
mean any swap, cap, collar, forward purchase or similar agreements or
arrangements dealing with interest rates, currency exchange rates or commodity
prices, either generally or under specific contingencies.
“Hedging
Obligations”
shall
mean obligations under or with respect to Hedging Agreements.
“Increase
Effective Date”
shall
have the meaning assigned to such term in Section
2.19(a).
“Incremental
Term Loan”
shall
have the meaning assigned to such term in Section
2.19(a).
“Incremental
Term Loan Commitment”
shall
have the meaning assigned to such term in Section
2.19(a).
“Incremental
Term Loan Maturity Date”
shall
have the meaning assigned to such term in Section
2.19(a).
“Increase
Joinder”
shall
have the meaning assigned to such term in Section
2.19(c).
“Indebtedness”
of any
person shall mean, without duplication, (a) all obligations of such
person
for borrowed money or advances; (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
or
accrued; (d) all obligations of such person under conditional sale or
other
title retention agreements relating to property purchased by such person;
(e) all obligations of such person issued or assumed as the deferred
purchase price of property or services (excluding trade accounts payable and
accrued obligations incurred in the ordinary course of business on normal trade
terms and not overdue by more than 90 days); (f) all Indebtedness
of
others secured by any Lien on property owned or acquired by such person, whether
or not the obligations secured thereby have been assumed, but limited to the
fair market value of such property; (g) all Capital Lease Obligations,
Purchase Money Obligations and synthetic lease obligations of such person;
(h) all Hedging Obligations to the extent required to be reflected on
a
balance sheet of such person; (i) all Attributable Indebtedness of such
person; (j) all obligations of such person for the reimbursement of
any
obligor in respect of letters of credit, letters of guaranty, bankers’
acceptances and similar credit transactions; and (k) all Contingent
Obligations of such person in respect of Indebtedness or obligations of others
of the kinds referred to in clauses (a) through (j) above. The Indebtedness
of any person shall include the Indebtedness of any other entity (including
any
partnership in which such person is a general partner) to the extent such person
is liable therefor as a result of such person’s ownership interest in or other
relationship with such entity, except (other than in the case of general partner
liability) to the extent that terms of such Indebtedness expressly provide
that
such person is not liable therefor.
“Indemnified
Taxes”
shall
mean all Taxes other than Excluded Taxes.
“Indemnitee”
shall
have the meaning assigned to such term in Section 10.03(b).
“Information”
shall
have the meaning assigned to such term in Section 10.12.
“Insurance
Policies”
shall
mean the insurance policies and coverages required to be maintained by each
Loan
Party which is an owner of Mortgaged Property with respect to the applicable
Mortgaged Property pursuant to Section 5.04
and all
renewals and extensions thereof.
“Insurance
Requirements”
shall
mean, collectively, all provisions of the Insurance Policies, all requirements
of the issuer of any of the Insurance Policies and all orders, rules,
regulations and any other requirements of the National Board of Fire
Underwriters (or any other body exercising similar functions) binding upon
each
Loan Party which is an owner of Mortgaged Property and applicable to the
Mortgaged Property or any use or condition thereof.
“Intellectual
Property”
shall
have the meaning assigned to such term in Section 3.06(a).
“Intercompany
Note”
shall
mean a promissory note substantially in the form of Exhibit P.
“Interest
Election Request”
shall
mean a request by Borrower to convert or continue a Revolving Borrowing or
Term
Borrowing in accordance with Section 2.08(b),
substantially in the form of Exhibit E.
“Interest
Payment Date”
shall
mean (a) with respect to any ABR Loan (including Swingline Loans), the
last
Business Day of each March, June, September and December to occur during any
period in which such Loan is outstanding, (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 Loan 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, (c) with respect to any
Revolving Loan or Swingline Loan, the Revolving Maturity Date or such earlier
date on which the Revolving Commitments are terminated and (d) with
respect
to any Term Loan, the Tranche B Maturity Date or an Incremental Term Loan
Maturity Date, as the case may be.
“Interest
Period”
shall
mean, with respect to any Eurodollar Borrowing, the period commencing on the
date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months (or, if each affected
Lender so agrees, nine months) thereafter, as Borrower may elect; provided
that
(a) 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 (b) any Interest Period that commences on the last Business Day
of a
calendar month (or on a day for which there is no numerically corresponding
day
in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
“Investments”
shall
have the meaning assigned to such term in Section 6.04.
“Issuing
Bank”
shall
mean, as the context may require, (a) UBS AG, Stamford Branch, in its
capacity as issuer of Letters of Credit issued by it; (b) any other
Lender
that may become an Issuing Bank pursuant to Sections 2.18(j)
and
(k)
in its
capacity as issuer of Letters of Credit issued by such Lender; or
(c) collectively, all of the foregoing.
“Joinder
Agreement”
shall
mean a joinder agreement substantially in the form of Exhibit F.
“Landlord
Access Agreement”
shall
mean a Landlord Access Agreement, substantially in the form of Exhibit G,
or such
other form as may reasonably be acceptable to the Administrative
Agent.
“LC
Commitment”
shall
mean the commitment of the Issuing Bank to issue Letters of Credit pursuant
to
Section 2.18.
The
amount of the LC Commitment shall initially be $5,000,000, but in no event
exceed the Revolving Commitment.
“LC
Disbursement”
shall
mean a payment or disbursement made by the Issuing Bank pursuant to a drawing
under a Letter of Credit.
“LC
Exposure”
shall
mean at any time the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus
(b) the aggregate principal amount of all Reimbursement Obligations
outstanding at such time. The LC Exposure of any Revolving Lender at any time
shall mean its Pro Rata Percentage of the aggregate LC Exposure at such
time.
“LC
Participation Fee”
shall
have the meaning assigned to such term in Section 2.05(c).
“LC
Request”
shall
mean a request by Borrower in accordance with the terms of Section 2.18(b)
and
substantially in the form of Exhibit H,
or such
other form as shall be approved by the Administrative Agent.
“Leases”
shall
mean any and all leases, subleases, tenancies, options, concession agreements,
rental agreements, occupancy agreements, franchise agreements, access agreements
and any other agreements (including all amendments, extensions, replacements,
renewals, modifications and/or guarantees thereof), whether or not of record
and
whether now in existence or hereafter entered into, affecting the use or
occupancy of all or any portion of any Real Property.
“Lender
Addendum”
shall
mean with respect to any Lender on the Closing Date, a lender addendum in the
form of Exhibit I,
to be
executed and delivered by such Lender on the Closing Date as provided in
Section 10.15.
“Lenders”
shall
mean (a) the financial institutions that have become a party hereto
pursuant to a Lender Addendum and (b) any financial institution that
has
become a party hereto pursuant to an Assignment and Assumption, other than,
in
each case, any such financial institution that has ceased to be a party hereto
pursuant to an Assignment and Assumption. Unless the context clearly indicates
otherwise, the term “Lenders” shall include the Swingline Lender.
“Letter
of Credit”
shall
mean any (i) Standby Letter of Credit and (ii) Commercial Letter
of
Credit, in each case, issued or to be issued by an Issuing Bank for the account
of Borrower pursuant to Section 2.18.
“Letter
of Credit Expiration Date”
shall
mean the date which is fifteen days prior to the Revolving Maturity
Date.
“LIBOR
Rate”
shall
mean, with respect to any Eurodollar Borrowing for any Interest Period, the
rate
per annum determined by the Administrative Agent to be the arithmetic mean
of
the offered rates for deposits in dollars with a term comparable to such
Interest Period that appears on the Telerate British Bankers Assoc. Interest
Settlement Rates Page (as defined below) at approximately 11:00 a.m., London,
England time, on the second full Business Day preceding the first day of such
Interest Period; provided,
however,
that
(i) if no comparable term for an Interest Period is available, the LIBOR
Rate shall be determined using the weighted average of the offered rates for
the
two terms most nearly corresponding to such Interest Period and (ii) if
there shall at any time no longer exist a Telerate British Bankers Assoc.
Interest Settlement Rates Page, “LIBOR Rate” shall mean, with respect to each
day during each Interest Period pertaining to Eurodollar Borrowings comprising
part of the same Borrowing, the rate per annum equal to the rate at which the
Administrative Agent is offered deposits in dollars at approximately 11:00
a.m.,
London, England time, two Business Days prior to the first day of such Interest
Period in the London interbank market for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to its portion of the amount of such Eurodollar Borrowing to be
outstanding during such Interest Period. “Telerate
British Bankers Assoc. Interest Settlement Rates Page”
shall
mean the display designated as Page 3750 on the Telerate System
Incorporated Service (or such other page as may replace such page on such
service for the purpose of displaying the rates at which dollar deposits are
offered by leading banks in the London interbank deposit market).
“Lien”
shall
mean, with respect to any property, (a) any mortgage, deed of trust,
lien,
pledge, encumbrance, claim, charge, assignment, hypothecation, security interest
or encumbrance of any kind or any arrangement to provide priority or preference
or any filing of any financing statement under the UCC or any other similar
notice of lien under any similar notice or recording statute of any Governmental
Authority, including any easement, right-of-way or other encumbrance on title
to
Real Property, in each of the foregoing cases whether voluntary or imposed
by
law, and any agreement to give any of the foregoing; (b) the interest
of a
vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any non-operating financing lease having substantially
the same economic effect as any of the foregoing) relating to such property;
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”
shall
mean this Agreement, the Letters of Credit, the Notes (if any), and the Security
Documents and, solely for purposes of paragraph (e) of Section
8.01,
the
confidential Fee Letter, dated September 2, 2005, among UBS Loan Finance LLC,
UBS Securities LLC, Banc of America Securities LLC and Bank of America,
N.A.
“Loan
Parties”
shall
mean Borrower and the Subsidiary Guarantors.
“Loans”
shall
mean, as the context may require, a Revolving Loan, a Term Loan or a Swingline
Loan (and shall include any Replacement Term Loans and any Loans contemplated
by
Section
2.19).
“Margin
Stock”
shall
have the meaning assigned to such term in Regulation U.
“Material
Adverse Effect”
shall
mean (a) any change which has had, or more likely than not in the
foreseeable future would have, a material adverse effect on the business,
property, results of operations, condition, financial or otherwise, or material
agreements of Borrower and its Subsidiaries, taken as a whole; (b) material
impairment of the ability of the Loan Parties to fully and timely perform any
of
their obligations under any Loan Document; (c) material impairment of
the
rights of or benefits or remedies available to the Lenders or the Collateral
Agent under any Loan Document; or (d) a material adverse effect on the
Collateral or the Liens in favor of the Collateral Agent (for its benefit and
for the benefit of the other Secured Parties) on the Collateral or the priority
of such Liens.
“Maximum
Rate”
shall
have the meaning assigned to such term in Section 10.14.
“Mortgage”
shall
mean an agreement, including, but not limited to, a mortgage, deed of trust
or
any other document, creating and evidencing a Lien on a Mortgaged Property,
which shall be substantially in the form of Exhibit J
or other
form reasonably satisfactory to the Collateral Agent, in each case, with such
schedules and including such provisions as shall be necessary to conform such
document to applicable local or foreign law or as shall be customary under
applicable local or foreign law.
“Mortgaged
Property”
shall
mean each Real Property, if any, which shall be subject to a Mortgage delivered
after the Closing Date pursuant to Section 5.11(c).
“Multiemployer
Plan”
shall
mean a multiemployer plan within the meaning of Section 4001(a)(3) or
Section 3(37) of ERISA (a) to which any Company or any ERISA
Affiliate
is then making or accruing an obligation to make contributions; (b) to
which any Company or any ERISA Affiliate has within the preceding five plan
years made contributions; or (c) with respect to which any Company could
incur liability.
“Net
Cash Proceeds”
shall
mean:
(a) with
respect to any Asset Sale, the cash proceeds received by Borrower or any of
its
Subsidiaries (including cash proceeds subsequently received (as and when
received by Borrower or any of its Subsidiaries) in respect of non-cash
consideration initially received) net of (i) selling expenses (including
reasonable brokers’ fees or commissions, legal, accounting and other
professional and transactional fees, transfer and similar taxes and Borrower’s
good faith estimate of income taxes paid or payable in connection with such
sale); (ii) amounts provided as a reserve, in accordance with GAAP,
against
(x) any liabilities under any indemnification obligations associated
with
such Asset Sale or (y) any other liabilities retained by Borrower or
any of
its Subsidiaries associated with the properties sold in such Asset Sale
(provided
that, to
the extent and at the time any such amounts are released from such reserve,
such
amounts shall constitute Net Cash Proceeds); (iii) Borrower’s good faith
estimate of payments required to be made with respect to unassumed liabilities
relating to the properties sold within 180 days of such Asset Sale
(provided
that, to
the extent such cash proceeds are not used to make payments in respect of such
unassumed liabilities within 180 days of such Asset Sale, such cash
proceeds shall constitute Net Cash Proceeds); and (iv) the principal
amount, premium or penalty, if any, interest and other amounts on any
Indebtedness for borrowed money which is secured by a Lien on the properties
sold in such Asset Sale (so long as such Lien was permitted to encumber such
properties under the Loan Documents at the time of such sale) and which is
repaid with such proceeds (other than any such Indebtedness assumed by the
purchaser of such properties);
(b) with
respect to any Debt Issuance or Preferred Stock Issuance by Borrower or any
of
its Subsidiaries, the cash proceeds thereof, net of customary fees, commissions,
costs and other expenses incurred in connection therewith; and
(c) with
respect to any Casualty Event, the cash insurance proceeds, condemnation awards
and other compensation received in respect thereof, net of all reasonable costs
and expenses incurred in connection with the collection of such proceeds, awards
or other compensation in respect of such Casualty Event.
“Net
Working Capital”
shall
mean, at any time, Consolidated Current Assets at such time minus Consolidated
Current Liabilities at such time.
“Non-Guarantor
Subsidiary”
shall
mean each Subsidiary that is not a Subsidiary Guarantor.
“Notes”
shall
mean any notes evidencing the Term Loans, Revolving Loans or Swingline Loans
issued pursuant to this Agreement, if any, substantially in the form of
Exhibit K-1,
K-2
or
K-3.
“Obligations”
shall
mean (a) obligations of Borrower and the other Loan Parties from time
to
time arising under or in respect of the due and punctual payment of (i) the
principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding)
on
the Loans, when and as due, whether at maturity, by acceleration, upon one
or
more dates set for prepayment or otherwise, (ii) each payment required
to
be made by Borrower and the other Loan Parties under this Agreement in respect
of any Letter of Credit, when and as due, including payments in respect of
Reimbursement Obligations, interest thereon and obligations to provide cash
collateral and (iii) all other monetary obligations, including fees,
costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of
any
bankruptcy, insolvency, receivership or other similar proceeding, regardless
of
whether allowed or allowable in such proceeding), of Borrower and the other
Loan
Parties under this Agreement and the other Loan Documents, and (b) the
due
and punctual performance of all covenants, agreements, obligations and
liabilities of Borrower and the other Loan Parties under or pursuant to this
Agreement and the other Loan Documents.
“OFAC”
shall
have the meaning assigned to such term in Section 3.22.
“Officers’
Certificate”
shall
mean a certificate executed by the chairman of the Board of Directors (if an
officer), the chief executive officer or the president and one of the Financial
Officers, each in his or her official (and not individual)
capacity.
“Organizational
Documents”
shall
mean, with respect to any person, (i) in the case of any corporation,
the
certificate of incorporation and by-laws (or similar documents) of such person,
(ii) in the case of any limited liability company, the certificate of
formation and operating agreement (or similar documents) of such person,
(iii) in the case of any limited partnership, the certificate of formation
and limited partnership agreement (or similar documents) of such person,
(iv) in the case of any general partnership, the partnership agreement
(or
similar document) of such person and (v) in any other case, the functional
equivalent of the foregoing.
“Other
Taxes”
shall
mean all present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any payment made
hereunder or under any other Loan Document or from the execution, delivery
or
enforcement of, or otherwise with respect to, this Agreement or any other Loan
Document.
“Participant”
shall
have the meaning assigned to such term in Section 10.04(d).
“PBGC”
shall
mean the Pension Benefit Guaranty Corporation referred to and defined in
ERISA.
“Perfection
Certificate”
shall
mean a certificate in the form of Exhibit L-1
or any
other form approved by the Collateral Agent, as the same shall be supplemented
from time to time by a Perfection Certificate Supplement or
otherwise.
“Perfection
Certificate Supplement”
shall
mean a certificate supplement in the form of Exhibit L-2
or any
other form approved by the Collateral Agent.
“Permitted
Acquisition”
shall
mean any transaction or series of related transactions for the direct or
indirect (a) acquisition of all or substantially all of the property
of any
person, or of any business or division of any person; (b) acquisition
of in
excess of 50% of the Equity Interests of any person, and otherwise causing
such
person to become a Subsidiary of such person; or (c) merger or
consolidation or any other combination with any person, if each of the following
conditions is met:
(i)no
Default then exists or would result therefrom;
(ii)after
giving effect to such transaction on a Pro Forma Basis, (A) Borrower
shall
be in compliance with all covenants set forth in Section 6.10
as of
the most recent Test Period (assuming, for purposes of Section 6.10,
that
such transaction, and all other Permitted Acquisitions consummated since the
first day of the relevant Test Period for each of the financial covenants set
forth in Section 6.10
ending
on or prior to the date of such transaction, had occurred on the first day
of
such relevant Test Period), and (B) unless expressly approved by the
Administrative Agent, the person or business to be acquired shall have generated
positive cash flow for the Test Period most recently ended prior to the date
of
consummation of such acquisition;
(iii)no
Company shall, in connection with any such transaction, (A) assume or remain
liable with respect to any Indebtedness of the related seller or the business,
person or properties acquired in an aggregate amount greater than $20.0 million,
or (B) assume or remain liable with respect to any other liability (including
any material tax or ERISA liability) of the related seller or the business,
person or properties acquired that could reasonably be expected to have a
Material Adverse Effect, unless such assumption is on terms and conditions
reasonably satisfactory to the Administrative Agent, except with respect to
each
of clauses (A) and (B) hereof, (1) to the extent permitted under
Section 6.01
and
(2) obligations not constituting Indebtedness incurred in the ordinary
course of business and necessary or desirable to the continued operation of
the
underlying properties, and any other such liabilities or obligations not
permitted to be assumed or otherwise supported by any Company hereunder shall
be
paid in full or released as to the business, persons or properties being so
acquired on or before the consummation of such acquisition;
(iv)the
person or business to be acquired shall be, or shall be engaged in, a business
of the type that Borrower and the Subsidiaries are permitted to be engaged
in
under Section 6.15
and the
property acquired in connection with any such transaction shall be, except
as
permitted by Section
5.11(b)
or to
the extent the same constitutes Excluded Property under the Security Agreement,
made subject to the Lien of the Security Documents and shall be free and clear
of any Liens, other than Permitted Collateral Liens;
(v)the
Board
of Directors of the person to be acquired shall not have indicated publicly
its
opposition to the consummation of such acquisition (which opposition has not
been publicly withdrawn);
(vi)all
transactions in connection therewith shall be consummated in material compliance
with all applicable Requirements of Law;
(vii)with
respect to any transaction involving Acquisition Consideration of more than
$10.0 million, unless the Administrative Agent shall otherwise agree, Borrower
shall have provided the Administrative Agent and the Lenders with
(A) historical financial statements for the last three fiscal years
(or, if
less, the number of years since formation) of the person or business to be
acquired (audited if available without undue cost or delay) and unaudited
financial statements thereof for the most recent interim period which are
available, (B) reasonably detailed projections of the person or business
to
be acquired for the succeeding three years pertaining to the person or business
to be acquired and, if available without undue cost or delay, updated
projections for Borrower after giving effect to such transaction, (C) a
reasonably detailed description of all material information relating thereto
and
copies of all material documentation pertaining to such transaction, and
(D) all such other information and data relating to such transaction
or the
person or business to be acquired as may be reasonably requested by the
Administrative Agent or the Required Lenders;
(viii)at
least
10 Business Days prior to the proposed date of consummation of the transaction,
Borrower shall have delivered to the Agents and the Lenders an Officers’
Certificate certifying that (A) such transaction complies with this
definition (which shall have attached thereto reasonably detailed backup data
and calculations showing such compliance), and (B) such transaction
could
not reasonably be expected to result in a Material Adverse Effect;
and
(ix)the
aggregate amount of the Acquisition Consideration for all Permitted Acquisitions
since the Closing Date, excluding all Acquisition Consideration paid in
Qualified Capital Stock, shall not exceed $300.0 million; provided
that any
Equity Interests constituting all or a portion of such Acquisition Consideration
shall not have a cash dividend requirement on or prior to the Final Maturity
Date.
“Permitted
Collateral Liens”
means
(a) in the case of Collateral other than Mortgaged Property, the Liens described
in clauses (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m),
(n)
and (p) of Section
6.02
and
(b) in the case of Mortgaged Property, “Permitted Collateral Liens” shall
mean the Liens described in clauses (a), (b), (d), (e), (g) and (l) of
Section
6.02;
provided,
however,
on the
Closing Date or upon the date of delivery of each additional Mortgage under
Section 5.11
or
5.12,
Permitted Collateral Liens shall mean only those Liens set forth in Schedule
B
to the applicable Mortgage.
“Permitted
Liens”
shall
have the meaning assigned to such term in Section 6.02.
“person”
shall
mean any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.
“Plan”
shall
mean 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 which is maintained or contributed to by any Company
or its ERISA Affiliate or with respect to which any Company could incur
liability (including under Section 4069 of ERISA).
“Post-Increase
Revolving Lenders”
shall
have the meaning assigned to such term in Section
2.19(d).
“Pre-Increase
Revolving Lenders”
shall
have the meaning assigned to such term in Section
2.19(d).
“Preferred
Stock”
shall
mean, with respect to any person, any and all preferred or preference Equity
Interests (however designated) of such person whether now outstanding or issued
after the Closing Date.
“Preferred
Stock Issuance”
shall
mean the issuance or sale by Borrower or any of its Subsidiaries of any
Preferred Stock after the Closing Date (other than as permitted by Section 6.01).
“Premises”
shall
have the meaning assigned thereto in the applicable Mortgage.
“Pro
Forma Basis”
shall
mean on a basis in accordance with GAAP and Regulation S-X and otherwise
reasonably satisfactory to the Administrative Agent.
“Pro
Rata Percentage”
of any
Revolving Lender at any time shall mean the percentage of the total Revolving
Commitments of all Revolving Lenders represented by such Lender’s Revolving
Commitment.
“property”
shall
mean any right, title or interest in or to property or assets of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible
and including Equity Interests or other ownership interests of any person and
whether now in existence or owned or hereafter entered into or acquired,
including all Real Property.
“Property
Material Adverse Effect”
shall
have the meaning assigned thereto in the Mortgage.
“Purchase
Money Obligation”
shall
mean, for any person, the obligations of such person in respect of Indebtedness
(including Capital Lease Obligations) incurred for the purpose of financing
all
or any part of the purchase price of any property (including Equity Interests
of
any person) or the cost of installation, construction or improvement of any
property and any refinancing thereof; provided,
however,
that
(i) such Indebtedness is incurred within one year after such acquisition,
installation, construction or improvement of such property by such person and
(ii) the amount of such Indebtedness does not exceed 100% of the cost of such
acquisition, installation, construction or improvement, as the case may
be.
“Qualified
Capital Stock”
of any
person shall mean any Equity Interests of such person that are not Disqualified
Capital Stock.
“Real
Property”
shall
mean, collectively, all right, title and interest (including any leasehold,
mineral or other estate) in and to any and all parcels of or interests in real
property owned, leased or operated by any person, whether by lease, license
or
other means, together with, in each case, all easements, hereditaments and
appurtenances relating thereto, all improvements and appurtenant fixtures and
equipment, all general intangibles and contract rights and other property and
rights incidental to the ownership, lease or operation thereof.
“Refinancing”
shall
mean the repayment in full and the termination of any commitment to make
extensions of credit under all of the outstanding indebtedness listed on
Schedule 1.01(a)
of
Borrower or any of its Subsidiaries.
“Register”
shall
have the meaning assigned to such term in Section 10.04(c).
“Regulation
D”
shall
mean Regulation D of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
“Regulation
S-X”
shall
mean Regulation S-X promulgated under the Securities Act.
“Regulation
T”
shall
mean Regulation T of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
“Regulation
U”
shall
mean Regulation U of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
“Regulation
X”
shall
mean Regulation X of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
“Reimbursement
Obligations”
shall
mean Borrower’s obligations under Section 2.18(e)
to
reimburse LC Disbursements.
“Related
Parties”
shall
mean (i) with respect to any person, such person’s Affiliates and the partners,
directors, officers, employees, agents and advisors of such person and (ii)
with
respect to such person’s Affiliates, the general partners, directors and
executive officers of such Affiliates.
“Release”
shall
mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposing, depositing,
dispersing, emanating or migrating of any Hazardous Material in, into, onto
or
through the Environment.
“Required
Class Lenders”
shall
mean (i) with respect to Term Loans, Lenders having more than 50% of all Term
Loans outstanding and (ii) with respect to Revolving Loans, Required Revolving
Lenders.
“Required
Lenders”
shall
mean Lenders having more than 50% of the sum of all Loans outstanding, LC
Exposure and unused Revolving and Term Loan Commitments.
“Required
Revolving Lenders”
shall
mean Lenders having more than 50% of all Revolving Commitments or, after the
Revolving Commitments have terminated, more than 50% of all Revolving
Exposure.
“Requirements
of Law”
shall
mean, collectively, any and all requirements of any Governmental Authority
including any and all laws, judgments, orders, decrees, ordinances, rules,
regulations, statutes or case law.
“Response”
shall
mean (a) “response” as such term is defined in CERCLA, 42 U.S.C.
§ 9601(24), and (b) all other actions required by any Governmental
Authority or voluntarily undertaken to (i) clean up, remove, treat,
▇▇▇▇▇
or in any other way address any Hazardous Material in the Environment;
(ii) prevent the Release or threat of Release, or minimize the further
Release, of any Hazardous Material; or (iii) perform studies and
investigations in connection with, or as a precondition to, or to determine
the
necessity of the activities described in, clause (i) or (ii)
above.
“Responsible
Officer”
of any
person shall mean any executive officer or Financial Officer of such person
and
any other officer or similar official thereof with responsibility for the
administration of the obligations of such person in respect of this
Agreement.
“Revolving
Availability Period”
shall
mean the period from and including the Closing Date to but excluding the earlier
of (i) the Business Day preceding the Revolving Maturity Date and
(ii) the date of termination of the Revolving Commitments.
“Revolving
Borrowing”
shall
mean a Borrowing comprised of Revolving Loans.
“Revolving
Commitment”
shall
mean, with respect to each Lender, the commitment, if any, of such Lender to
make Revolving Loans hereunder up to the amount set forth on Schedule I
to
the Lender Addendum executed and delivered by such Lender or by an Increase
Joinder, or in the Assignment and Assumption pursuant to which such Lender
assumed its Revolving Commitment, as applicable, as the same 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 10.04.
The
aggregate amount of the Lenders’ Revolving Commitments on the Closing Date is
$50,000,000.
“Revolving
Exposure”
shall
mean, with respect to any Lender at any time, the aggregate principal amount
at
such time of all outstanding Revolving Loans of such Lender, plus
the
aggregate amount at such time of such Lender’s LC Exposure, plus
the
aggregate amount at such time of such Lender’s Swingline Exposure.
“Revolving
Lender”
shall
mean a Lender with a Revolving Commitment.
“Revolving
Loan”
shall
mean a Loan made by the Lenders to Borrower pursuant to Section 2.01(b).
Each
Revolving Loan shall either be an ABR Revolving Loan or a Eurodollar Revolving
Loan.
“Revolving
Maturity Date”
shall
mean the date which is five years after the Closing Date or, if such
date
is not a Business Day, the first Business Day thereafter.
“Rollover
Equity”
shall
mean the common equity interest of certain existing management stockholders
of
the Acquired Business exchanged for not less than $12,500,000 of common equity
of Borrower on terms and conditions satisfactory to the Administrative Agent
in
its reasonable judgment.
“Sale
and Leaseback Transaction”
has the
meaning assigned to such term in Section 6.03.
“▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”
shall
mean the United States ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended, and all rules
and
regulations promulgated thereunder.
“Secured
Obligations”
shall
mean (a) the Obligations, (b) the due and punctual payment and performance
of
all obligations of Borrower and the other Loan Parties under each Hedging
Agreement entered into with any counterparty that is a Secured Party and
(c) the due and punctual payment and performance of all obligations
in
respect of overdrafts and related liabilities owed to any Lender, any Affiliate
of a Lender, the Administrative Agent or the Collateral Agent arising from
treasury, depositary and cash management services or in connection with any
automated clearinghouse transfer of funds.
“Secured
Parties”
shall
mean, collectively, the Administrative Agent, the Collateral Agent, each other
Agent, the Lenders and each party to a Hedging Agreement if at the date of
entering into such Hedging Agreement such person was a Lender or an Affiliate
of
a Lender and such person executes and delivers to the Administrative Agent
a
letter agreement in form and substance acceptable to the Administrative Agent
pursuant to which such person (i) appoints the Collateral Agent as its
agent under the applicable Loan Documents and (ii) agrees to be bound
by
the provisions of Sections 10.03
and
10.09
as if it
were a Lender.
“Securities
Act”
shall
mean the Securities Act of 1933.
“Securities
Collateral”
shall
have the meaning assigned to such term in the Security Agreement.
“Security
Agreement”
shall
mean a Security Agreement substantially in the form of Exhibit M
among
the Loan Parties and Collateral Agent for the benefit of the Secured
Parties.
“Security
Agreement Collateral”
shall
mean all property pledged or granted as collateral pursuant to the Security
Agreement (a) on the Closing Date or (b) thereafter pursuant to Section 5.11.
“Security
Documents”
shall
mean the Security Agreement, the Mortgages and each other security document
or
pledge agreement delivered in accordance with applicable local or foreign law
to
grant a valid, perfected security interest in any property as collateral for
the
Secured Obligations, and all UCC or other financing statements or instruments
of
perfection required by this Agreement, the Security Agreement, any Mortgage
or
any other such security document or pledge agreement to be filed with respect
to
the security interests in property and fixtures created pursuant to the Security
Agreement or any Mortgage and any other document or instrument utilized to
pledge or grant or purport to pledge or grant a security interest or lien on
any
property as collateral for the Secured Obligations.
“Seller”
shall
have the meaning assigned to such term in the first recital hereto.
“Standby
Letter of Credit”
shall
mean any standby letter of credit or similar instrument issued for the purpose
of supporting (a) workers’ compensation liabilities of Borrower or any of
its Subsidiaries, (b) the obligations of third-party insurers of Borrower
or any of its Subsidiaries arising by virtue of the laws of any jurisdiction
requiring third-party insurers to obtain such letters of credit,
(c) performance, payment, deposit or surety obligations of Borrower
or any
of its Subsidiaries if required by a Requirement of Law or in accordance with
custom and practice in the industry or (d) Indebtedness of Borrower
or any
of its Subsidiaries permitted to be incurred under Section 6.01.
“Statutory
Reserves”
shall
mean for any Interest Period for any Eurodollar Borrowing, the average maximum
rate at which reserves (including any marginal, supplemental or emergency
reserves) are required to be maintained during such Interest Period under
Regulation D by member banks of the United States Federal Reserve System in
New
York City with deposits exceeding one billion dollars against “Eurocurrency
liabilities” (as such term is used in Regulation D). Eurodollar Borrowings shall
be deemed to constitute Eurodollar liabilities and to be subject to such reserve
requirements without benefit of or credit for proration, exceptions or offsets
which may be available from time to time to any Lender under Regulation
D.
“Subordinated
Indebtedness”
shall
mean Indebtedness of Borrower or any Guarantor that is by its terms subordinated
in right of payment to the Obligations of Borrower and such Guarantor, as
applicable.
“Subsidiary”
shall
mean, with respect to any person (the “parent”)
at any
date, (i) any person 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,
(ii) any other corporation, limited liability company, association or
other
business entity of which securities or other ownership interests representing
more than 50% of the voting power of all Equity Interests entitled (without
regard to the occurrence of any contingency) to vote in the election of the
Board of Directors thereof are, as of such date, owned, controlled or held
by
the parent and/or one or more Subsidiaries of the parent, (iii) any
partnership (a) the sole general partner or the managing general partner
of
which is the parent and/or one or more Subsidiaries of the parent or
(b) the only general partners of which are the parent and/or one or
more
Subsidiaries of the parent and (iv) any other person that is otherwise
Controlled by the parent and/or one or more Subsidiaries of the parent. Unless
the context requires otherwise, “Subsidiary” refers to a Subsidiary of
Borrower.
“Subsidiary
Guarantor”
shall
mean each Subsidiary listed on Schedule 1.01(b),
and
each other Subsidiary that is or becomes a party to this Agreement pursuant
to
Section 5.11.
“Survey”
shall
mean a survey of any Mortgaged Property (and all improvements thereon) which
is
(a) (i) prepared by a surveyor or engineer licensed to perform surveys
in
the jurisdiction where such Mortgaged Property is located, (ii) dated
(or
redated) not earlier than six months prior to the date of delivery thereof
unless there shall have occurred within six months prior to such date of
delivery any exterior construction on the site of such Mortgaged Property or
any
easement, right of way or other interest in the Mortgaged Property has been
granted or become effective through operation of law or otherwise with respect
to such Mortgaged Property which, in either case, can be depicted on a survey,
in which events, as applicable, such survey shall be dated (or redated) after
the completion of such construction or if such construction shall not have
been
completed as of such date of delivery, not earlier than 20 days prior
to
such date of delivery, or after the grant or effectiveness of any such easement,
right of way or other interest in the Mortgaged Property, (iii) certified
by the surveyor (in a manner reasonably acceptable to the Administrative Agent)
to the Administrative Agent, the Collateral Agent and the Title Company,
(iv) complying in all respects with the minimum detail requirements
of the
American Land Title Association as such requirements are in effect on the date
of preparation of such survey and (v) sufficient for the Title Company
to
remove all standard survey exceptions from the title insurance policy (or
commitment) relating to such Mortgaged Property and issue customary endorsements
or (b) otherwise acceptable to the Collateral Agent.
“Swingline
Commitment”
shall
mean the commitment of the Swingline Lender to make loans pursuant to
Section 2.17,
as the
same may be reduced from time to time pursuant to Section 2.07
or
Section 2.17.
The
amount of the Swingline Commitment shall initially be $5,000,000, but shall
in
no event exceed the Revolving Commitment.
“Swingline
Exposure”
shall
mean at any time the aggregate principal amount at such time of all outstanding
Swingline Loans. The Swingline Exposure of any Revolving Lender at any time
shall equal its Pro Rata Percentage of the aggregate Swingline Exposure at
such
time.
“Swingline
Lender”
shall
have the meaning assigned to such term in the preamble hereto.
“Swingline
Loan”
shall
mean any loan made by the Swingline Lender pursuant to Section 2.17.
“Syndication
Agent”
shall
have the meaning assigned to such term in the preamble hereto.
“Tax
Return”
shall
mean all returns, statements, filings, attachments and other documents or
certifications required to be filed in respect of Taxes.
“Taxes”
shall
mean (i) all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other similar charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto and (ii) all transferee, successor, joint and several,
contractual or other liability (including, without limitation, liability
pursuant to Treas. Reg. §1.1502-6 (or any similar state, local or foreign
provision)) in respect of any items described in clause (i).
“Term
Borrowing”
shall
mean a Borrowing comprised of Term Loans.
“Term
Loan Commitments”
shall
mean the Tranche B Commitment.
“Term
Loan Lender”
shall
mean a Lender with a Term Loan Commitment or an outstanding Term
Loan.
“Term
Loan Repayment Date”
shall
have the meaning assigned to such term in Section 2.09.
“Term
Loans”
shall
mean the Tranche B Loans.
“Test
Period”
shall
mean, at any time, the four consecutive fiscal quarters of Borrower then last
ended (in each case taken as one accounting period).
“Title
Company”
shall
mean any title insurance company as shall be retained by Borrower and reasonably
acceptable to the Administrative Agent.
“Total
Leverage Ratio”
shall
mean, at any date of determination, the ratio of Consolidated Indebtedness
on
such date to Consolidated EBITDA for the Test Period then most recently
ended.
“Tranche B
Commitment”
shall
mean, with respect to each Lender, the commitment, if any, of such Lender to
make a Tranche B Loan hereunder on the Closing Date in the amount set
forth
on Schedule I to the Lender Addendum executed and delivered by such
Lender
or by an Increase Joinder, or in the Assignment and Assumption pursuant to
which
such Lender shall have assumed its Tranche B Commitment, as applicable,
as
the same 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 10.04.
The
initial aggregate amount of the Lenders’ Tranche B Commitments is
$175,000,000.
“Tranche B
Lender”
shall
mean a Lender with a Tranche B Commitment or an outstanding Tranche B
Loan.
“Tranche B
Loan”
shall
mean the term loans made by the Lenders to Borrower pursuant to Section 2.01(a)(ii)
or by an
Increase Joinder. Each Tranche B Loan shall be either an ABR Term Loan
or a
Eurodollar Term Loan.
“Tranche B
Maturity Date”
shall
mean the date which is six years after the Closing Date or, if such date is
not
a Business Day, the first Business Day thereafter.
“Transaction
Documents”
shall
mean the Acquisition Documents and the Loan Documents.
“Transactions”
shall
mean, collectively, the transactions to occur on or prior to the Closing Date
pursuant to the Transaction Documents, including (a) the consummation
of
the Acquisition; (b) the execution, delivery and performance of the
Loan
Documents and the initial borrowings hereunder; (c) the Refinancing;
(d) the issuance of the Rollover Equity; and (e) the payment
of all
fees and expenses to be paid on or prior to the Closing Date and owing in
connection with the foregoing.
“Transferred
Guarantor”
shall
have the meaning assigned to such term in Section 7.09.
“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 LIBOR Rate or the Alternate Base Rate.
“UCC”
shall
mean the Uniform Commercial Code as in effect from time to time (except as
otherwise specified) in any applicable state or jurisdiction.
“United
States”
shall
mean the United States of America.
“Voting
Stock”
shall
mean, with respect to any person, any class or classes of Equity Interests
pursuant to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the Board of Directors
of
such person.
“Wholly
Owned Subsidiary”
shall
mean, as to any person, (a) any corporation 100% of whose capital stock
(other than directors’ qualifying shares) is at the time owned by such person
and/or one or more Wholly Owned Subsidiaries of such person and (b) any
partnership, association, joint venture, limited liability company or other
entity in which such person and/or one or more Wholly Owned Subsidiaries of
such
person have a 100% equity interest at such time.
“Withdrawal
Liability”
shall
mean 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
“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,”“Borrowing of Tranche B Loans”) 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 Loan Document, 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,
(e) any reference to any law or regulation herein shall refer to such
law
or regulation as amended, modified or supplemented from time to time and
(f) 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 financial statements to be delivered
pursuant to this Agreement shall be prepared in accordance with GAAP as in
effect from time to time and all terms of an accounting or financial nature
shall be construed and interpreted in accordance with GAAP, as in effect on
the
date hereof unless otherwise agreed to by Borrower and the Required
Lenders.
SECTION
1.05 Resolution
of Drafting Ambiguities
.
Each
Loan Party acknowledges and agrees that it was represented by counsel in
connection with the execution and delivery of the Loan Documents to which it
is
a party, that it and its counsel reviewed and participated in the preparation
and negotiation hereof and thereof and that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall
not
be employed in the interpretation hereof or thereof.
ARTICLE
II
THE
CREDITS
SECTION
2.01 Commitments
.
Subject
to the terms and conditions and relying upon the representations and warranties
herein set forth, each Lender agrees, severally and not jointly:
(a) to
make a
Tranche B Loan to Borrower on the Closing Date in the principal amount
not
to exceed its Tranche B Commitment; and
(b) to
make
Revolving Loans to Borrower, at any time and from time to time after the Closing
Date until the earlier of the Revolving Maturity Date and the termination of
the
Revolving Commitment of such Lender in accordance with the terms hereof, in
an
aggregate principal amount at any time outstanding that will not result in
such
Lender’s Revolving Exposure exceeding such Lender’s Revolving
Commitment.
Amounts
paid or prepaid in respect of Term Loans may not be reborrowed. Within the
limits set forth in clause (b) above and subject to the terms, conditions
and limitations set forth herein, Borrower may borrow, pay or prepay and
reborrow Revolving Loans.
SECTION
2.02 Loans
.
(a) Each
Loan
(other than Swingline Loans) shall be made as part of a Borrowing consisting
of
Loans made by the Lenders ratably in accordance with their applicable
Commitments; provided
that the
failure of any Lender to make its Loan shall not in itself relieve any other
Lender of its obligation to lend hereunder (it being understood, however, that
no Lender shall be responsible for the failure of any other Lender to make
any
Loan required to be made by such other Lender). Except for Loans deemed made
pursuant to Section 2.18(e)(ii),
(x) ABR Loans comprising any Borrowing shall be in an aggregate principal
amount that is (i) an integral multiple of $1.0 million and not less
than
$5.0 million or (ii) equal to the remaining available balance of the
applicable Commitments and (y) the Eurodollar Loans comprising any
Borrowing shall be in an aggregate principal amount that is (i) an integral
multiple of $1.0 million and not less than $5.0 million or (ii) equal
to
the remaining available balance of the applicable Commitments.
(b) Subject
to Sections 2.11
and
2.12,
each
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as
Borrower may request pursuant to Section 2.03.
Each
Lender may at its option 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 Borrower to repay
such Loan in accordance with the terms of this Agreement. Borrowings of more
than one Type may be outstanding at the same time; provided
that
Borrower shall not be entitled to request any Borrowing that, if made, would
result in more than five Eurodollar Borrowings outstanding hereunder at any
one
time. For purposes of the foregoing, Borrowings having different Interest
Periods, regardless of whether they commence on the same date, shall be
considered separate Borrowings.
(c) Except
with respect to Loans deemed made pursuant to Section 2.18(e)(ii),
each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to such account in
New
York City as the Administrative Agent may designate not later than 11:00 a.m.,
New York City time, and the Administrative Agent shall promptly credit the
amounts so received to an account as directed by Borrower in the applicable
Borrowing Request maintained with the Administrative Agent or, if a Borrowing
shall not occur on such date because any condition precedent herein specified
shall not have been met, return the amounts so received to the respective
Lenders.
(d) Unless
the Administrative Agent shall have received notice from a Lender prior to
the
date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s portion of such Borrowing, the Administrative
Agent may assume that such Lender has made such portion available to the
Administrative Agent on the date of such Borrowing in accordance with
paragraph (c) above, and the Administrative Agent may, in reliance upon
such assumption, make available to Borrower on such date a corresponding amount.
If the Administrative Agent shall have so made funds available, then, to the
extent that such Lender shall not have made such portion available to the
Administrative Agent, each of such Lender and Borrower severally agrees to
repay
to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to Borrower until the date such amount is repaid to the Administrative
Agent at (i) in the case of Borrower, the interest rate applicable at
the
time to the Loans comprising such Borrowing and (ii) 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. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such Lender’s Loan as part of
such Borrowing for purposes of this Agreement, and Borrower’s obligation to
repay the Administrative Agent such corresponding amount pursuant to this
Section 2.02(d)
shall
cease.
(e) Notwithstanding
any other provision of this Agreement, 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 B Maturity Date or the Incremental Term Loan Maturity
Date as
applicable.
SECTION
2.03 Borrowing
Procedure
.
To
request a Revolving Borrowing or Term Borrowing, Borrower shall deliver, by
hand
delivery or telecopier, a duly completed and executed Borrowing Request to
the
Administrative Agent (i) 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 (ii) in the case of an ABR Borrowing, not later
than
9:00 a.m., New York City time, on the date of the proposed Borrowing. Each
Borrowing Request shall be irrevocable and shall specify the following
information in compliance with Section 2.02:
(a) whether
the requested Borrowing is to be a Borrowing of Revolving Loans or
Tranche B Loans;
(b) the
aggregate amount of such Borrowing;
(c) the
date
of such Borrowing, which shall be a Business Day;
(d) whether
such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(e) 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”;
(f) the
location and number of Borrower’s account to which funds are to be disbursed,
which shall comply with the requirements of Section 2.02(c);
and
(g) that
the
conditions set forth in Sections 4.02(b)-(d)
have
been satisfied as of the date of the notice.
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 respect
to
any requested Eurodollar Borrowing, then 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 Evidence
of Debt; Repayment of Loans
.
(a) Promise
to Repay.
Borrower hereby unconditionally promises to pay (i) to the Administrative
Agent for the account of each Term Loan Lender, the principal amount of each
Term Loan of such Term Loan Lender as provided in Section 2.09,
(ii) to the Administrative Agent for the account of each Revolving Lender,
the then unpaid principal amount of each Revolving Loan of such Revolving Lender
on the Revolving Maturity Date 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 is
the
15th or last day of a calendar month and is at least two Business Days after
such Swingline Loan is made; provided
that on
each date that a Revolving Borrowing is made, Borrower shall repay all Swingline
Loans that were outstanding on the date such Borrowing was
requested.
(b) Lender
and Administrative Agent Records.
Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the Indebtedness of Borrower to such Lender resulting from
each Loan made by such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time under
this Agreement. The Administrative Agent shall maintain accounts in which it
will record (i) the amount of each Loan made hereunder, the Type and
Class
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 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. The entries made in the accounts maintained pursuant to this
paragraph shall be prima
facie
evidence
of the existence and amounts of the obligations therein recorded; 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 obligations of Borrower
to
repay the Loans in accordance with their terms.
(c) Promissory
Notes.
Any
Lender by written notice to Borrower (with a copy to the Administrative Agent)
may request that Loans of any Class made by it be evidenced by a promissory
note. In such event, 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) in the form of Exhibit K-1,
K-2
or
K-3,
as the
case may be. Thereafter, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to
Section 10.04)
be
represented by one or more promissory notes in such form payable to the order
of
the payee named therein (or, if such promissory note is a registered note,
to
such payee and its registered assigns).
SECTION
2.05 Fees
.
(a) Commitment
Fee.
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a commitment fee (a “Commitment
Fee”)
equal
to the Applicable Fee per annum on the average daily unused amount of each
Commitment of such Lender during the period from and including the date hereof
to but excluding the date on which such Commitment terminates. Accrued
Commitment Fees shall be payable in arrears (A) on the last Business
Day of
March, June, September and December of each year, commencing on the first such
date to occur after the date hereof, and (B) on the date on which such
Commitment terminates. 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 and LC Exposure of such Lender (and the Swingline Exposure of such Lender
shall be disregarded for such purpose).
(b) Administrative
Agent Fees.
Borrower agrees to pay to the Administrative Agent, for its own account, the
administrative fees payable in the amounts and at the times separately agreed
upon between Borrower and the Administrative Agent (the “Administrative
Agent Fees”).
(c) LC
and
Fronting Fees.
Borrower agrees to pay (i) to the Administrative Agent for the account
of
each Revolving Lender a participation fee (“LC
Participation Fee”)
with
respect to its participations in Letters of Credit, which shall accrue at a
rate
equal to the Applicable Margin from time to time used to determine the interest
rate on Eurodollar Revolving Loans pursuant to Section 2.06
on the
average daily amount of such Lender’s LC Exposure (excluding any portion thereof
attributable to Reimbursement Obligations) during the period from and including
the Closing Date to but excluding the later of the date on which such Lender’s
Revolving Commitment terminates and the date on which such Lender ceases to
have
any LC Exposure, and (ii) to the Issuing Bank a fronting fee (“Fronting
Fee”),
which
shall accrue at the rate of 0.25% per annum on the average daily amount of
the
LC Exposure (excluding any portion thereof attributable to Reimbursement
Obligations) during the period from and including the Closing Date to but
excluding the later of the date of termination of the Revolving Commitments
and
the date on which there ceases to be any LC Exposure, as well as the Issuing
Bank’s customary fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings thereunder. Accrued
LC Participation Fees and Fronting Fees shall be payable in arrears (i) on
the last Business Day of March, June, September and December of each year,
commencing on the first such date to occur after the Closing Date, and
(ii) on the date on which the Revolving Commitments terminate. Any such
fees accruing after the date on which the Revolving Commitments terminate shall
be payable on demand. Any other fees payable to the Issuing Bank pursuant to
this paragraph shall be payable within 10 days after demand therefor.
All
LC Participation Fees and Fronting Fees shall be computed on the basis of a
year
of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(d) All
Fees
shall be paid on the dates due, in immediately available funds in dollars,
to
the Administrative Agent for distribution, if and as appropriate, among the
Lenders, except that Borrower shall pay the Fronting Fees directly to the
Issuing Bank. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION
2.06 Interest
on Loans
.
(a) ABR
Loans.
Subject
to the provisions of Section 2.06(c),
the
Loans comprising each ABR Borrowing, including each Swingline Loan, shall bear
interest at a rate per annum equal to the Alternate Base Rate plus the
Applicable Margin in effect from time to time.
(b) Eurodollar
Loans.
Subject
to the provisions of Section 2.06(c),
the
Loans comprising each Eurodollar Borrowing shall bear interest at a rate per
annum equal to the Adjusted LIBOR Rate for the Interest Period in effect for
such Borrowing plus the Applicable Margin in effect from time to
time.
(c) Default
Rate.
Notwithstanding the foregoing, during an Event of Default, all Obligations
shall, to the extent permitted by applicable law, bear interest, after as well
as before judgment, at a per annum rate equal to (i) in the case of
principal of or interest unpaid when due on any Loan, 2% plus
the rate
otherwise applicable to such Loan as provided in the preceding paragraphs of
this Section 2.06
or
(ii) in the case of any other amount, 2% plus
the rate
applicable to ABR Revolving Loans as provided in Section 2.06(a)
(in
either case, the “Default
Rate”).
(d) Interest
Payment Dates.
Accrued
interest on each Loan shall be payable in arrears on each Interest Payment
Date
for such Loan; provided
that
(i) interest accrued pursuant to Section 2.06(c)
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 or a Swingline Loan
without a permanent reduction in Revolving Commitments), 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) Interest
Calculation.
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 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 LIBOR Rate shall be determined by the Administrative
Agent
in accordance with the provisions of this Agreement and such determination
shall
be conclusive absent manifest error.
SECTION
2.07 Termination
and Reduction of Commitments
.
(a) Termination
of Commitments.
The
Term Loan Commitments shall automatically terminate at 5:00 p.m., New York
City
time, on the Closing Date. The Revolving Commitments, the Swingline Commitment
and the LC Commitment shall automatically terminate on the Revolving Maturity
Date. Notwithstanding the foregoing, all the Commitments shall automatically
terminate at 5:00 p.m., New York City time, on October 31, 2005, if
the
initial Credit Extension shall not have occurred by such time.
(b) Optional
Terminations and Reductions.
At its
option, Borrower may at any time terminate, or from time to time permanently
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 $1.0 million and not less than $5.0 million
and
(ii) the Revolving Commitments shall not be terminated or reduced if,
after
giving effect to any concurrent prepayment of the Revolving Loans in accordance
with Section 2.10,
the
aggregate amount of Revolving Exposures would exceed the aggregate amount of
Revolving Commitments.
(c) Borrower
Notice.
Borrower shall notify the Administrative Agent in writing of any election to
terminate or reduce the Commitments under Section 2.07(b)
at least
three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by Borrower pursuant
to
this Section shall be irrevocable; provided
that a
notice of termination of the Commitments delivered by Borrower may state that
such notice is conditioned upon the effectiveness of other credit facilities,
in
which case such notice may be revoked by 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 Interest
Elections
.
(a) Generally.
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, 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. 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. Notwithstanding anything
to
the contrary, Borrower shall not be entitled to request any conversion or
continuation that, if made, would result in more than five Eurodollar Borrowings
outstanding hereunder at any one time. This Section shall not apply to Swingline
Borrowings, which may not be converted or continued.
(b) Interest
Election Notice.
To make
an election pursuant to this Section, Borrower shall deliver, by hand delivery
or telecopier, a duly completed and executed Interest Election Request to the
Administrative Agent not later than the time that a Borrowing Request would
be
required under Section 2.03
if
Borrower were requesting a Revolving Borrowing or Term Borrowing of the Type
resulting from such election to be made on the effective date of such election.
Each Interest Election Request shall be irrevocable. Each Interest Election
Request shall specify the following information in compliance with Section 2.02:
(i) the
Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, or if
outstanding Borrowings are being combined, the allocation to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the
effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day;
(iii) whether
the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
and
(iv) if
the
resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.
If
any
such Interest Election Request requests a Eurodollar Borrowing but does not
specify an Interest Period, then Borrower shall be deemed to have selected
an
Interest Period of one month’s duration.
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.
(c) Automatic
Conversion to ABR Borrowing.
If an
Interest Election Request with respect to a Eurodollar Borrowing is not timely
delivered 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, the Administrative Agent or the Required Lenders may require, by
notice to Borrower, that (i) no outstanding Borrowing may be converted
to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION
2.09 Amortization
of Term Borrowings
.
Borrower shall pay to the Administrative Agent, for the account of the Lenders,
on the dates set forth on Annex I,
or if
any such date is not a Business Day, on the immediately preceding Business
Day
(each such date, a “Term
Loan Repayment Date”),
a
principal amount of the Tranche B Loans equal to the amount set forth
on
Annex I
for such
date (as adjusted from time to time pursuant to Section 2.10(h)),
together in each case with accrued and unpaid interest on the principal amount
to be paid to but excluding the date of such payment. To the extent not
previously paid, all Tranche B Loans shall be due and payable on the
Tranche B Maturity Date.
SECTION
2.10 Optional
and Mandatory Prepayments of Loans.
(a) Optional
Prepayments.
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 2.10;
provided
that
each partial prepayment shall be in an amount that is an integral multiple
of
$1.0 million and not less than $5.0 million or, if less, the outstanding
principal amount of such Borrowing.
(b) Revolving
Loan Prepayments.
(i) In
the
event of the termination of all the Revolving Commitments, Borrower shall,
on
the date of such termination, repay or prepay all its outstanding Revolving
Borrowings and all outstanding Swingline Loans and replace all outstanding
Letters of Credit or cash collateralize all outstanding Letters of Credit in
accordance with the procedures set forth in Section 2.18(i).
(ii) In
the
event of any partial reduction of the Revolving Commitments, then (x) at
or
prior to the effective date of such reduction, the Administrative Agent shall
notify Borrower and the Revolving Lenders of the sum of the Revolving Exposures
after giving effect thereto and (y) if the sum of the Revolving Exposures
would exceed the aggregate amount of Revolving Commitments after giving effect
to such reduction, then Borrower shall, on the date of such reduction,
first,
repay
or prepay Swingline Loans, second,
repay
or prepay Revolving Borrowings and third,
replace
outstanding Letters of Credit or cash collateralize outstanding Letters of
Credit in accordance with the procedures set forth in Section 2.18(i),
in an
aggregate amount sufficient to eliminate such excess.
(iii) In
the
event that the sum of all Lenders’ Revolving Exposures exceeds the Revolving
Commitments then in effect, Borrower shall, without notice or demand,
immediately first,
repay
or prepay Revolving Borrowings, and second,
replace
outstanding Letters of Credit or cash collateralize outstanding Letters of
Credit in accordance with the procedures set forth in Section 2.18(i),
in an
aggregate amount sufficient to eliminate such excess.
(iv) In
the
event that the aggregate LC Exposure exceeds the LC Commitment then in effect,
Borrower shall, without notice or demand, immediately replace outstanding
Letters of Credit or cash collateralize outstanding Letters of Credit in
accordance with the procedures set forth in Section 2.18(i),
in an
aggregate amount sufficient to eliminate such excess.
(c) Asset
Sales.
Not
later than one Business Day following the receipt of any Net Cash Proceeds
of
any Asset Sale by Borrower or any of its Subsidiaries, Borrower shall make
prepayments in accordance with Sections 2.10(h)
and
(i)
in an
aggregate amount equal to 100% of such Net Cash Proceeds; provided
that:
(i) no
such
prepayment shall be required under this Section 2.10(c)(i)
with
respect to (A) any Asset Sale permitted by Section 6.06(a),
(c),
(d)
or
(f),
(B) the disposition of property which constitutes a Casualty Event,
or
(C) Asset Sales for fair market value resulting in no more than $100,000
in
Net Cash Proceeds per Asset Sale (or series of related Asset Sales) and less
than $1.0 million in Net Cash Proceeds in any fiscal year; provided
that
clause (C) shall not apply in the case of any Asset Sale described in
clause (b) of the definition thereof; and
(ii) so
long
as no Default shall then exist or would arise therefrom and the aggregate of
such Net Cash Proceeds of Asset Sales shall not exceed $5.0 million in any
fiscal year of Borrower, such proceeds shall not be required to be so applied
on
such date to the extent that Borrower shall have delivered an Officers’
Certificate to the Administrative Agent on or prior to such date stating that
such Net Cash Proceeds are expected to be reinvested in fixed or capital assets
within 360 days following the date of such Asset Sale (which Officers’
Certificate shall set forth the estimates of the proceeds to be so expended);
provided
that if
all or any portion of such Net Cash Proceeds is not so reinvested within such
360-day period, such unused portion shall be applied on the last day of such
period as a mandatory prepayment as provided in this Section 2.10(c);
provided,
further,
that if
the property subject to such Asset Sale constituted Collateral, then all
property purchased with the Net Cash Proceeds thereof pursuant to this
subsection shall be made subject to the Lien of the applicable Security
Documents in favor of the Collateral Agent, for its benefit and for the benefit
of the other Secured Parties in accordance with Sections 5.11
and
5.12.
(d) Debt
Issuance or Preferred Stock Issuance.
Not
later than one Business Day following the receipt of any Net Cash Proceeds
of
any Debt Issuance or Preferred Stock Issuance by Borrower or any of its
Subsidiaries, Borrower shall make prepayments in accordance with Sections 2.10(h)
and
(i)
in an
aggregate amount equal to 100% of such Net Cash Proceeds.
(e) [Reserved].
(f) Casualty
Events.
Not
later than one Business Day following the receipt of any Net Cash Proceeds
from
a Casualty Event by Borrower or any of its Subsidiaries, Borrower shall make
prepayments in accordance with Sections 2.10(h)
and
(i)
in an
aggregate amount equal to 100% of such Net Cash Proceeds; provided
that:
(i) so
long
as no Default shall then exist or arise therefrom, such proceeds shall not
be
required to be so applied on such date to the extent that Borrower shall have
delivered an Officers’ Certificate to the Administrative Agent on or prior to
such date stating that such proceeds are expected to be used to repair, replace
or restore any property in respect of which such Net Cash Proceeds were paid
or
to reinvest in other fixed or capital assets, no later than 180 days
following the date of receipt of such proceeds; provided
that if
the property subject to such Casualty Event constituted Collateral under the
Security Documents, then all property purchased with the Net Cash Proceeds
thereof pursuant to this subsection shall be made subject to the Lien of the
applicable Security Documents in favor of the Collateral Agent, for its benefit
and for the benefit of the other Secured Parties in accordance with Sections 5.11
and
5.12;
and
(ii) if
any
portion of such Net Cash Proceeds shall not be so applied within such 180-day
period, such unused portion shall be applied on the last day of such period
as a
mandatory prepayment as provided in this Section 2.10(f).
(g) Excess
Cash Flow.
No
later than the earlier of (i) 90 days after the end of each Excess
Cash Flow Period and (ii) the date on which the financial statements
with
respect to such fiscal year in which such Excess Cash Flow Period occurs are
delivered pursuant to Section 5.01(a),
Borrower shall make prepayments in accordance with Sections 2.10(h)
and
(i)
in an
aggregate amount equal to the Applicable Excess Cash Flow Percentage for the
Excess Cash Flow Period then ended.
(h) Application
of Prepayments.
Prior
to any optional or mandatory prepayment hereunder, Borrower shall select the
Borrowing or Borrowings to be prepaid and shall specify such selection in the
notice of such prepayment pursuant to Section 2.10(i),
subject
to the provisions of this Section 2.10(h).
Any
prepayments of Term Loans pursuant to Section 2.10(c),
(d),
(f)
or
(g)
shall be
applied to reduce scheduled prepayments required under Section 2.09
on a
pro
rata
basis
among the prepayments remaining to be made on each Term Loan Repayment Date.
After application of mandatory prepayments of Term Loans described above in
this
Section 2.10(h)
and to
the extent there are mandatory prepayment amounts remaining after such
application, the Revolving Commitments shall be permanently reduced ratably
among the Revolving Lenders in accordance with their applicable Revolving
Commitments in an aggregate amount equal to such excess, and Borrower shall
comply with Section 2.10(b).
Amounts
to be applied pursuant to this Section 2.10
to the
prepayment of Term Loans and Revolving Loans shall be applied, as applicable,
first to reduce outstanding ABR Term Loans and ABR Revolving Loans,
respectively. Any amounts remaining after each such application shall be applied
to prepay Eurodollar Term Loans or Eurodollar Revolving Loans, as applicable.
Notwithstanding the foregoing, if the amount of any prepayment of Loans required
under this Section 2.10
shall be
in excess of the amount of the ABR Loans at the time outstanding (an
“Excess
Amount”),
only
the portion of the amount of such prepayment as is equal to the amount of such
outstanding ABR Loans shall be immediately prepaid and, at the election of
Borrower, the Excess Amount shall be either (A) deposited in an escrow account
on terms satisfactory to the Collateral Agent and applied to the prepayment
of
Eurodollar Loans on the last day of the then next-expiring Interest Period
for
Eurodollar Loans; provided
that
(i) interest in respect of such Excess Amount shall continue to accrue
thereon at the rate provided hereunder for the Loans which such Excess Amount
is
intended to repay until such Excess Amount shall have been used in full to
repay
such Loans and (ii) at any time while a Default has occurred and is
continuing, the Administrative Agent may, and upon written direction from the
Required Lenders shall, apply any or all proceeds then on deposit to the payment
of such Loans in an amount equal to such Excess Amount or (B) prepaid
immediately, together with any amounts owing to the Lenders under Section 2.13.
(i) Notice
of Prepayment.
Borrower shall notify the Administrative Agent (and, in the case of prepayment
of a Swingline Loan, the Swingline Lender) by written notice 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 and (iii) in the case of prepayment of a Swingline Loan,
not
later than 11:00 a.m., New York City time, on the date of prepayment. Each
such
notice shall be irrevocable; provided
that, if
a notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.07,
then
such notice of prepayment may be revoked if such termination is revoked in
accordance with Section 2.07.
Each
such notice 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.
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 a Credit Extension 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 and otherwise in accordance with this Section 2.10.
Prepayments shall be accompanied by accrued interest to the extent required
by
Section 2.06.
SECTION
2.11 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 final and
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBOR Rate for such Interest Period;
or
(b) the
Administrative Agent is advised in writing by the Required Lenders that the
Adjusted LIBOR Rate for such Interest Period will not adequately and fairly
reflect the cost to such Lenders of making or maintaining their Loans included
in such Borrowing for such Interest Period;
then
the
Administrative Agent shall give written notice thereof to Borrower and the
Lenders as promptly as practicable thereafter and, until the Administrative
Agent notifies 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.
SECTION
2.12 Yield
Protection
.
(a) Increased
Costs Generally.
If any
Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or
for
the account of, or credit extended or participated in, by any Lender (except
any
reserve requirement reflected in the Adjusted LIBOR Rate) or the Issuing
Bank;
(ii) subject
any Lender or the Issuing Bank to any tax of any kind whatsoever with respect
to
this Agreement, any Letter of Credit, any participation in a Letter of Credit
or
any Loan made by it, or change the basis of taxation of payments to such Lender
or the Issuing Bank in respect thereof (except for Indemnified Taxes or Other
Taxes indemnified under Section
2.15
and the
imposition of, or any change in the rate of, any Excluded Tax payable by such
Lender or the Issuing Bank); or
(iii) impose
on
any Lender or the Issuing Bank or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Loans made
by
such Lender or any Letter of Credit or participation therein;
and
the
result of any of the foregoing shall be to increase the cost to such Lender
of
making or maintaining any Eurodollar Loan (or of maintaining its obligation
to
make any such Loan), or to increase the cost to such Lender, the Issuing Bank
or
such Lender’s or the Issuing Bank’s holding company, if any, of participating
in, issuing or maintaining any Letter of Credit (or of maintaining its
obligation to participate in or to issue any Letter of Credit), or to reduce
the
amount of any sum received or receivable by such Lender or the Issuing Bank
hereunder (whether of principal, interest or any other amount), then, upon
request of such Lender or the Issuing Bank, Borrower will pay to such Lender
or
the Issuing Bank, as the case may be, such additional amount or amounts as
will
compensate such Lender or the Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) Capital
Requirements.
If any
Lender or the Issuing Bank determines (in good faith, but in its sole absolute
discretion) that any Change in Law affecting such Lender or the Issuing Bank
or
any lending office of such Lender or such Lender’s or the Issuing Bank’s holding
company, if any, regarding capital requirements has or would have the effect
of
reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on
the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a
consequence of this Agreement, the Commitments of such Lender or the Loans
made
by, or participations in Letters of Credit held by, such Lender, or the Letters
of Credit issued by the Issuing Bank, to a level below that which such Lender
or
the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could
have achieved but for such Change in Law (taking into consideration such
Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the
Issuing Bank’s holding company with respect to capital adequacy), then from time
to time Borrower will pay to such Lender or the Issuing Bank, as the case may
be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such
reduction suffered.
(c) Certificates
for Reimbursement.
A
certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company,
as the case may be, as specified in paragraph (a) or (b) of this
Section
2.12
and
delivered to Borrower shall be conclusive absent manifest error. Borrower shall
pay such Lender or the Issuing Bank, as the case may be, the amount shown as
due
on any such certificate within 30 days after receipt thereof.
(d) Delay
in Requests.
Failure
or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section
2.12
shall
not constitute a waiver of such Lender’s or the Issuing Bank’s right to demand
such compensation; provided
that
Borrower shall not be required to compensate a Lender or the Issuing Bank
pursuant to this Section for any increased costs incurred or reductions suffered
more than three months prior to the date that such Lender or the Issuing Bank,
as the case may be, notifies Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the Issuing Bank’s
intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
three-month period referred to above shall be extended to include the period
of
retroactive effect thereof) .
SECTION
2.13 Breakage
Payments
.
In the
event of (a) the payment or prepayment, whether optional or mandatory,
of
any principal of any Eurodollar Loan earlier than 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 earlier than 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 or (d) the assignment of any Eurodollar
Loan earlier than the last day of the Interest Period applicable thereto as
a
result of a request by Borrower pursuant to Section 2.16(b),
then,
in any such event, 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 LIBOR 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 in reasonable detail any amount or
amounts that such Lender is entitled to receive pursuant to this Section 2.13
shall be
delivered to Borrower (with a copy to the Administrative Agent) and shall be
conclusive and binding absent manifest error. Borrower shall pay such Lender
the
amount shown as due on any such certificate within 5 days after receipt
thereof.
SECTION
2.14 Payments
Generally; Pro Rata Treatment; Sharing of Setoffs
.
(a) Payments
Generally.
Borrower shall make each payment required to be made by it hereunder or under
any other Loan Document (whether of principal, interest, fees or Reimbursement
Obligations, or of amounts payable under Section 2.12,
2.13,
2.15
or
10.03,
or
otherwise) on or before the time expressly required hereunder or under such
other Loan Document for such payment (or, if no such time is expressly required,
prior to 2:00 p.m., New York City time), on the date when due, in immediately
available funds, without setoff, deduction 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 Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.12,
2.13,
2.15
and
10.03
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, unless specified otherwise, 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,
except as expressly specified otherwise.
(b) Pro
Rata Treatment.
(i) Each
payment by Borrower of interest in respect of the Loans shall be applied to
the
amounts of such obligations owing to the Lenders pro
rata
according to the respective amounts then due and owing to the
Lenders.
(ii) Each
payment on account of principal of the Term Loans pursuant to Section
2.09
shall be
allocated among the Term Loan Lenders pro
rata
based on
the principal amount of the Term Loans held by the Term Loan Lenders. Each
payment by Borrower on account of principal of the Revolving Borrowings shall
be
made pro
rata
according to the respective outstanding principal amounts of the Revolving
Loans
then held by the Revolving Lenders.
(c) Insufficient
Funds.
If at
any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, Reimbursement Obligations, interest
and fees then due hereunder, such funds shall be applied (i) first,
toward
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,
toward
payment of principal and Reimbursement Obligations then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal
and Reimbursement Obligations then due to such parties.
(d) Sharing
of Setoff.
If any
Lender (and/or the Issuing Bank, which shall be deemed a “Lender” for purposes
of this Section
2.14(d))
shall,
by exercising any right of setoff or counterclaim or otherwise, obtain payment
in respect of any principal of or interest on any of its Loans or other
Obligations resulting in such Lender’s receiving payment of a proportion of the
aggregate amount of its Loans and accrued interest thereon or other Obligations
greater than its pro rata
share
thereof as provided herein, then the Lender receiving such greater proportion
shall (a) notify the Administrative Agent of such fact, and
(b) purchase (for cash at face value) participations in the Loans and
such
other obligations of the other Lenders, or make such other adjustments as shall
be equitable, 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 Loans and other amounts owing them,
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 (x) any
payment made by Borrower pursuant to and in accordance with the express terms
of
this Agreement or (y) any payment obtained by a Lender as consideration
for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other
than to Borrower or any Subsidiary thereof (as to which the provisions of this
paragraph shall apply).
Each
Loan
Party consents to the foregoing and agrees, to the extent it may effectively
do
so under applicable Requirements of Law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation. If under applicable bankruptcy, insolvency or
any
similar law any Secured Party receives a secured claim in lieu of a setoff
or
counterclaim to which this Section 2.14(d)
applies,
such Secured Party shall to the extent practicable, exercise its rights in
respect of such secured claim in a manner consistent with the rights to which
the Secured Party is entitled under this Section 2.14(d)
to
share in the benefits of the recovery of such secured claim.
(e) Borrower
Default.
Unless
the Administrative Agent shall have received notice from Borrower prior to
the
date on which any payment is due to the Administrative Agent for the account
of
the Lenders or the Issuing Bank hereunder that Borrower will not make such
payment, the Administrative Agent may assume that Borrower has made such payment
on such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the Issuing Bank, as the case may be, the amount
due. In such event, if Borrower has not in fact made such payment, then each
of
the Lenders or the Issuing Bank, as the case may be, severally agrees to repay
to the Administrative Agent forthwith on demand the amount so distributed to
such Lender or the Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date
of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(f) Lender
Default.
If any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.02(c),
2.14(e),
2.17(d),
2.18(d),
2.18(e)
or
10.03(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.
SECTION
2.15 Taxes
.
(a) Payments
Free of Taxes.
Any and
all payments by or on account of any obligation of the Loan Parties hereunder
or
under any other Loan Document shall be made free and clear of and without
reduction or withholding for any Indemnified Taxes or Other Taxes; provided
that if
any Loan Party shall be required by applicable Requirements of Law to deduct
any
Indemnified Taxes (including any Other Taxes) from such payments, then
(i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent, Lender or Issuing Bank,
as
the case may be, receives an amount equal to the sum it would have received
had
no such deductions been made, (ii) the applicable Loan Party shall make
such deductions and (iii) the applicable Loan Party shall timely pay
the
full amount deducted to the relevant Governmental Authority in accordance with
applicable Requirements of Law.
(b) Payment
of Other Taxes by Borrower.
Without
limiting the provisions of paragraph (a) above, Borrower shall timely pay any
Other Taxes to the relevant Governmental Authority in accordance with applicable
Requirements of Law.
(c) Indemnification
by Borrower.
Borrower shall indemnify the Administrative Agent, each Lender and the Issuing
Bank, within 10 days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
payable by the Administrative Agent, such Lender or the Issuing Bank, as the
case may be, 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 Borrower by a Lender or the Issuing Bank (with a copy
to
the Administrative Agent), or by the Administrative Agent on its own behalf
or
on behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest
error.
(d) Evidence
of Payments.
As soon
as practicable after any payment of Indemnified Taxes or Other Taxes by Borrower
to a Governmental Authority, Borrower shall deliver to the Administrative Agent
the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Status
of Lenders.
Any
Foreign Lender shall, to the extent it may lawfully do so, deliver to Borrower
and the Administrative Agent (in such number of copies as shall be requested
by
the recipient) on or prior to the date on which such Foreign Lender becomes
a
Lender under this Agreement (and from time to time thereafter upon the
reasonable request of Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is
applicable:
(i) duly
completed copies of Internal Revenue Service Form W-8BEN or successor form
claiming eligibility for benefits of an income tax treaty to which the United
States of America is a party,
(ii) duly
completed copies of Internal Revenue Service Form W-8ECI or successor
form,
(iii) in
the
case of a Foreign Lender claiming the benefits of the exemption for portfolio
interest under Section 881(c) of the Code, (x) a certificate, in substantially
the form of Exhibit Q,
or any
other form approved by the Administrative Agent, to the effect that such Foreign
Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of Borrower within the meaning of Section
881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in
Section 881(c)(3)(C) of the Code and (y) duly completed copies of Internal
Revenue Service Form W-8BEN or successor form, or
(iv) any
other
form prescribed by applicable Requirements of Law as a basis for claiming
exemption from or a reduction in United States federal withholding tax duly
completed together with such supplementary documentation as may be prescribed
by
applicable Requirements of Law to permit Borrower to determine the withholding
or deduction required to be made.
(f) Treatment
of Certain Refunds.
If the
Administrative Agent, a Lender or the Issuing Bank determines, which
determination shall be made in its reasonable discretion, that it has received
a
refund of any Indemnified Taxes or Other Taxes as to which it has been
indemnified by Borrower or with respect to which Borrower has paid additional
amounts pursuant to this Section, it shall pay to Borrower an amount equal
to
such refund (but only to the extent of indemnity payments made, or additional
amounts paid, by Borrower under this Section with respect to the Indemnified
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or the Issuing Bank, as the
case may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided
that
Borrower, upon the request of the Administrative Agent, such Lender or the
Issuing Bank, agrees to repay the amount paid over to Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the Issuing Bank in
the
event the Administrative Agent, such Lender or the Issuing Bank is required
to
repay such refund to such Governmental Authority. This paragraph shall not
be
construed to require the Administrative Agent, any Lender or the Issuing Bank
to
make available its tax returns (or any other information relating to its taxes
that it deems confidential) to Borrower or any other person. Notwithstanding
anything to the contrary, in no event will any Lender be required to pay any
amount to Borrower to the extent that such payment would place such Lender
in a
less favorable net after-tax position than such Lender would have been in if
the
additional amounts giving rise to such refund of any Indemnified Taxes or Other
Taxes had never been paid.
SECTION
2.16 Mitigation
Obligations; Replacement of Lenders
.
(a) Designation
of a Different Lending Office.
If any
Lender requests compensation under Section 2.12,
or
requires Borrower to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.15,
or if
any Lender determines that its failure to take such action under this
Section
2.16
would
result in a request for compensation under Section
2.12
or a
payment under Section
2.15,
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 reasonable judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section
2.12
or
2.15,
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. Borrower hereby agrees to pay all reasonable costs and expenses incurred
by any Lender in connection with any such designation or assignment. A
certificate setting forth such costs and expenses submitted by such Lender
to
Borrower shall be conclusive absent manifest error.
(b) Replacement
of Lenders.
If any
Lender requests compensation under Section 2.12,
or if
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
or if
any Lender defaults in its obligation to fund Loans hereunder, or if Borrower
exercises its replacement rights under Section 10.02(d),
then
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,
and
consents required by, Section 10.04),
all of
its interests, rights and obligations under this Agreement and the other Loan
Documents to an Eligible Assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment);
provided
that:
(i) Borrower
shall have paid to the Administrative Agent the processing and recordation
fee
specified in Section
10.04(b);
(ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements and Swingline
Loans, accrued interest thereon, accrued fees and all other amounts payable
to
it hereunder and under the other Loan Documents (including any amounts under
Section
2.13)
from
the assignee (to the extent of such outstanding principal and accrued interest
and fees) or Borrower (in the case of all other amounts);
(iii) in
the
case of any such assignment resulting from a claim for compensation under
Section 2.12
or
payments required to be made pursuant to Section 2.15,
such
assignment will result in a reduction in such compensation or payments
thereafter; and
(iv) such
assignment does not conflict with applicable Requirements of Law.
A
Lender
shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling Borrower to require such assignment and delegation cease to
apply.
SECTION
2.17 Swingline
Loans
.
(a) Swingline
Commitment.
Subject
to the terms and conditions set forth herein, the Swingline Lender agrees to
make Swingline Loans to 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 $5,000,000 or (ii) the sum of the total Revolving
Exposures exceeding the total Revolving Commitments; provided
that the
Swingline Lender shall not be required to make a Swingline Loan to refinance
an
outstanding Swingline Loan. Within the foregoing limits and subject to the
terms
and conditions set forth herein, Borrower may borrow, repay and reborrow
Swingline Loans.
(b) Swingline
Loans.
To
request a Swingline Loan, Borrower shall deliver, by hand delivery or
telecopier, a duly completed and executed Borrowing Request to the
Administrative Agent and the Swingline Lender, not later than 2:00 p.m., 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 the amount of the requested Swingline Loan. Each Swingline Loan shall
be an ABR Loan. The Swingline Lender shall make each Swingline Loan available
to
Borrower by means of a credit to the general deposit account of Borrower with
the Swingline Lender (or, in the case of a Swingline Loan made to finance the
reimbursement of an LC Disbursement as provided in Section 2.18(e),
by
remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the
requested date of such Swingline Loan. Borrower shall not request a Swingline
Loan if at the time of or immediately after giving effect to the Extension
of
Credit contemplated by such request a Default has occurred and is continuing
or
would result therefrom. Swingline Loans shall be made in minimum amounts of
$100,000 and integral multiples of $100,000 above such amount.
(c) Prepayment.
Borrower shall have the right at any time and from time to time to repay any
Swingline Loan, in whole or in part, upon giving written notice to the Swingline
Lender and the Administrative Agent before 12:00 (noon), New York City time,
on
the proposed date of repayment.
(d) Participations.
The
Swingline Lender may at any time in its discretion by written notice given
to
the Administrative Agent (provided
such
notice requirement shall not apply if the Swingline Lender and the
Administrative Agent are the same entity) not later than 11:00 a.m., New York
City time, on the next succeeding Business Day following such notice require
the
Revolving Lenders to acquire participations on such Business Day in all or
a
portion of the Swingline Loans then 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 Pro
Rata 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 Pro Rata 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 or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever (so long as such
payment shall not cause such Lender’s Revolving Exposure to exceed such Lender’s
Revolving Commitment). 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 2.02(c)
with
respect to Loans made by such Lender (and Section 2.02
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 Borrower of any
participations in any Swingline Loan acquired by the Revolving Lenders 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 Borrower (or other party on behalf
of 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, as their interests may appear. The purchase of participations in
a
Swingline Loan pursuant to this paragraph shall not relieve Borrower of any
default in the payment thereof.
SECTION
2.18 Letters
of Credit
(a) General.
Subject
to the terms and conditions set forth herein, Borrower may request the Issuing
Bank, and the Issuing Bank agrees, to issue Letters of Credit for its own
account or the account of a Subsidiary in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
during the Revolving Availability Period (provided
that
Borrower shall be a co-applicant, and be jointly and severally liable, with
respect to each Letter of Credit issued for the account of a Subsidiary). The
Issuing Bank shall have no obligation to issue, and Borrower shall not request
the issuance of, any Letter of Credit at any time if after giving effect to
such
issuance, the LC Exposure would exceed the LC Commitment or the total Revolving
Exposure would exceed the total Revolving Commitments. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by Borrower to, or entered into by Borrower with, the Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement
shall control.
(b) Request
for Issuance, Amendment, Renewal, Extension; Certain Conditions and
Notices.
To
request the issuance of a Letter of Credit or the amendment, renewal or
extension of an outstanding Letter of Credit, Borrower shall deliver, by hand
or
telecopier (or transmit by electronic communication, if arrangements for doing
so have been approved by the Issuing Bank), an LC Request to the Issuing Bank
and the Administrative Agent not later than 11:00 a.m. on the third Business
Day
preceding the requested date of issuance, amendment, renewal or extension (or
such later date and time as is acceptable to the Issuing Bank).
A
request
for an initial issuance of a Letter of Credit shall specify in form and detail
satisfactory to the Issuing Bank:
(i) the
proposed issuance date of the requested Letter of Credit (which shall be a
Business Day);
(ii) the
amount thereof;
(iii) the
expiry date thereof (which shall not be later than the close of business on
the
Letter of Credit Expiration Date);
(iv) the
name
and address of the beneficiary thereof;
(v) whether
the Letter of Credit is to be issued for its own account or for the account
of
one of its Subsidiaries (provided
that
Borrower shall be a co-applicant, and therefore jointly and severally liable,
with respect to each Letter of Credit issued for the account of a
Subsidiary);
(vi) the
documents to be presented by such beneficiary in connection with any drawing
thereunder;
(vii) the
full
text of any certificate to be presented by such beneficiary in connection with
any drawing thereunder; and
(viii) such
other matters as the Issuing Bank may require.
A
request
for an amendment, renewal or extension of any outstanding Letter of Credit
shall
specify in form and detail satisfactory to the Issuing Bank:
(i) the
Letter of Credit to be amended, renewed or extended;
(ii) the
proposed date of amendment, renewal or extension thereof (which shall be a
Business Day);
(iii) the
nature of the proposed amendment, renewal or extension; and
(iv) such
other matters as the Issuing Bank may require.
If
requested by the Issuing Bank, Borrower also shall submit a letter of credit
application on the Issuing Bank’s standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed
or
extended only if (and, upon issuance, amendment, renewal or extension of each
Letter of Credit, Borrower shall be deemed to represent and warrant that),
after
giving effect to such issuance, amendment, renewal or extension, (i) the
LC
Exposure shall not exceed the LC Commitment, (ii) the total Revolving
Exposures shall not exceed the total Revolving Commitments and (iii) the
conditions set forth in Article
IV
in
respect of such issuance, amendment, renewal or extension shall have been
satisfied. Unless the Issuing Bank shall agree otherwise, no Letter of Credit
shall be in an initial amount less than $100,000, in the case of a Commercial
Letter of Credit or a Standby Letter of Credit.
Upon
the
issuance of any Letter of Credit or amendment, renewal, extension or
modification to a Letter of Credit, the Issuing Bank shall promptly notify
the
Administrative Agent, who shall promptly notify each Revolving Lender, thereof,
which notice shall be accompanied by a copy of such Letter of Credit or
amendment, renewal, extension or modification to a Letter of Credit and the
amount of such Lender’s respective participation in such Letter of Credit
pursuant to Section 2.18(d).
On the
first Business Day of each calendar month, the Issuing Bank shall provide to
the
Administrative Agent a report listing all outstanding Letters of Credit and
the
amounts and beneficiaries thereof and the Administrative Agent shall promptly
provide such report to each Revolving Lender.
(c) Expiration
Date.
Each
Letter of Credit shall expire at or prior to the close of business on the
earlier of (i) in the case of a Standby Letter of Credit, (x) the
date
which is one year after the date of the issuance of such Standby Letter of
Credit (or, in the case of any renewal or extension thereof, one year after
such
renewal or extension) and (y) the Letter of Credit Expiration Date and
(ii) in the case of a Commercial Letter of Credit, (x) the date
that
is 180 days after the date of issuance of such Commercial Letter of
Credit
(or, in the case of any renewal or extension thereof, 180 days after
such
renewal or extension) and (y) the Letter of Credit Expiration
Date.
(d) Participations.
By the
issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing
the amount thereof) and without any further action on the part of the Issuing
Bank or the Lenders, the Issuing Bank hereby irrevocably grants to each
Revolving Lender, and each Revolving Lender hereby acquires from the Issuing
Bank, a participation in such Letter of Credit equal to such Revolving Lender’s
Pro Rata Percentage of the aggregate amount available to be drawn under such
Letter of Credit. In consideration and in furtherance of the foregoing, each
Revolving Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such Revolving
Lender’s Pro Rata Percentage of each LC Disbursement made by the Issuing Bank
and not reimbursed by Borrower on the date due as provided in Section 2.18(e),
or of
any reimbursement payment required to be refunded to Borrower for any reason.
Each Revolving Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, or expiration, termination or cash
collateralization of any Letter of Credit and that each such payment shall
be
made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement.
(i) If
the
Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit,
Borrower shall reimburse such LC Disbursement by paying to the Issuing Bank
an
amount equal to such LC Disbursement not later
than
3:00 p.m., New York City time, on the date that such LC Disbursement is made
if
Borrower shall have received notice of such LC Disbursement prior to 11:00
a.m.,
New York City time, on such date, or, if such notice has not been received
by
Borrower prior to such time on such date, then not later than 3:00 p.m., New
York City time, on the Business Day immediately following the day that Borrower
receives such notice; provided
that
Borrower may, subject to the conditions to borrowing set forth herein, request
in accordance with Section 2.03
that
such payment be financed with ABR Revolving Loans or Swingline Loans in an
equivalent amount and, to the extent so financed, Borrower’s obligation to make
such payment shall be discharged and replaced by the resulting ABR Revolving
Loans or Swingline Loans.
(ii) If
Borrower fails to make such payment when due, the Issuing Bank shall notify
the
Administrative Agent and the Administrative Agent shall notify each Revolving
Lender of the applicable LC Disbursement, the payment then due from Borrower
in
respect thereof and such Revolving Lender’s Pro Rata Percentage thereof. Each
Revolving Lender shall pay by wire transfer of immediately available funds
to
the Administrative Agent not later than 2:00 p.m., New York City time, on such
date (or, if such Revolving Lender shall have received such notice later than
12:00 noon, New York City time, on any day, not later than 11:00 a.m., New
York
City time, on the immediately following Business Day), an amount equal to such
Revolving Lender’s Pro Rata Percentage of the unreimbursed LC Disbursement in
the same manner as provided in Section 2.02(c)
with
respect to Revolving Loans made by such Revolving Lender, and the Administrative
Agent will promptly pay to the Issuing Bank the amounts so received by it from
the Revolving Lenders. The Administrative Agent will promptly pay to the Issuing
Bank any amounts received by it from Borrower pursuant to the above paragraph
prior to the time that any Revolving Lender makes any payment pursuant to the
preceding sentence and any such amounts received by the Administrative Agent
from Borrower thereafter will be promptly remitted by the Administrative Agent
to the Revolving Lenders that shall have made such payments and to the Issuing
Bank, as appropriate.
(iii) If
any
Revolving Lender shall not have made its Pro Rata Percentage of such LC
Disbursement available to the Administrative Agent as provided above, each
of
such Revolving Lender and Borrower severally agrees to pay interest on such
amount, for each day from and including the date such amount is required to
be
paid in accordance with the foregoing to but excluding the date such amount
is
paid, to the Administrative Agent for the account of the Issuing Bank at
(i) in the case of Borrower, the rate per annum set forth in Section 2.18(h)
and
(ii) in the case of such Lender, at a rate determined by the Administrative
Agent in accordance with banking industry rules or practices on interbank
compensation.
(f) Obligations
Absolute.
The
Reimbursement Obligation of Borrower as provided in Section 2.18(e)
shall be
absolute, unconditional and irrevocable, and shall be paid and performed
strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity
or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein; (ii) any draft or other document presented under
a
Letter of Credit being proved to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect; (iii) payment by the Issuing Bank under a Letter of Credit
against
presentation of a draft or other document that fails to comply with the terms
of
such Letter of Credit; (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this Section 2.18,
constitute a legal or equitable discharge of, or provide a right of setoff
against, the obligations of Borrower hereunder; (v) the fact that a
Default
shall have occurred and be continuing; or (vi) any material adverse
change
in the business, property, results of operations, prospects or condition,
financial or otherwise, of Borrower and its Subsidiaries. None of the Agents,
the Lenders, the Issuing Bank or any of their Affiliates shall have any
liability or responsibility by reason of or in connection with the issuance
or
transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under
or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the Issuing Bank;
provided
that the
foregoing shall not be construed to excuse the Issuing Bank from liability
to
Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by Borrower to the extent
permitted by applicable Requirements of Law) suffered by Borrower that are
caused by the Issuing Bank’s failure to exercise care when determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing Bank shall be
deemed to have exercised care in each such determination. In furtherance of
the
foregoing and without limiting the generality thereof, the parties agree that,
with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice
or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of
such
Letter of Credit.
(g) Disbursement
Procedures.
The
Issuing Bank shall, promptly following its receipt thereof, examine all
documents purporting to represent a demand for payment under a Letter of Credit.
The Issuing Bank shall promptly give written notice to the Administrative Agent
and Borrower of such demand for payment and whether the Issuing Bank has made
or
will make an LC Disbursement thereunder; provided
that any
failure to give or delay in giving such notice shall not relieve Borrower of
its
Reimbursement Obligation to the Issuing Bank and the Revolving Lenders with
respect to any such LC Disbursement (other than with respect to the timing
of
such Reimbursement Obligation set forth in Section 2.18(e)).
(h) Interim
Interest.
If the
Issuing Bank shall make any LC Disbursement, then, unless Borrower shall
reimburse such LC Disbursement in full on the date such LC Disbursement is
made,
the unpaid amount thereof shall bear interest payable on demand, for each day
from and including the date such LC Disbursement is made to but excluding the
date that Borrower reimburses such LC Disbursement, at the rate per annum
determined pursuant to Section 2.06(c).
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment
by
any Revolving Lender pursuant to Section 2.18(e)
to
reimburse the Issuing Bank shall be for the account of such Lender to the extent
of such payment.
(i) Cash
Collateralization.
If any
Event of Default shall occur and be continuing, on the Business Day that
Borrower receives notice from the Administrative Agent or the Required Lenders
(or, if the maturity of the Loans has been accelerated, Revolving Lenders with
LC Exposure representing greater than 50% of the total LC Exposure) demanding
the deposit of cash collateral pursuant to this paragraph, Borrower shall
deposit on terms and in accounts satisfactory to the Collateral Agent, in the
name of the Collateral Agent and for the benefit of the Revolving Lenders,
an
amount in cash equal to the LC Exposure as of such date plus any accrued and
unpaid interest thereon; provided
that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to Borrower described in Section
8.01(g)
or
(h).
Funds
so deposited shall be applied by the Collateral Agent to reimburse the Issuing
Bank for LC Disbursements for which it has not been reimbursed and, to the
extent not so applied, shall be held for the satisfaction of outstanding
Reimbursement Obligations or, if the maturity of the Loans has been accelerated
(but subject to the consent of Revolving Lenders with LC Exposure representing
greater than 50% of the total LC Exposure), be applied to satisfy other
Obligations of Borrower under this Agreement. If Borrower is required to provide
an amount of cash collateral hereunder as a result of the occurrence of an
Event
of Default, such amount plus
any
accrued interest or realized profits with respect to such amounts (to the extent
not applied as aforesaid) shall be returned to Borrower within three Business
Days after all Events of Default have been cured or waived.
(j) Additional
Issuing Banks.
Borrower may, at any time and from time to time, designate one or more
additional Revolving Lenders to act as an issuing bank under the terms of this
Agreement, with the consent of the Administrative Agent (which consent shall
not
be unreasonably withheld), the Issuing Bank and such Revolving Lender(s). Any
Lender designated as an issuing bank pursuant to this paragraph (j)
shall
be deemed (in addition to being a Revolving Lender) to be the Issuing Bank
with
respect to Letters of Credit issued or to be issued by such Revolving Lender,
and all references herein and in the other Loan Documents to the term “Issuing
Bank” shall, with respect to such Letters of Credit, be deemed to refer to such
Revolving Lender in its capacity as Issuing Bank, as the context shall
require.
(k) Resignation
or Removal of the Issuing Bank.
The
Issuing Bank may resign as Issuing Bank hereunder at any time upon at least
30 days’ prior notice to the Lenders, the Administrative Agent and
Borrower. The Issuing Bank may be replaced at any time by written agreement
among Borrower, each Agent, the replaced Issuing Bank and the successor Issuing
Bank. The Administrative Agent shall notify the Lenders of any such replacement
of the Issuing Bank or any such additional Issuing Bank. At the time any such
resignation or replacement shall become effective, Borrower shall pay all unpaid
fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.05(c).
From
and after the effective date of any such resignation or replacement or addition,
as applicable, (i) the successor or additional Issuing Bank shall have
all
the rights and obligations of the Issuing Bank under this Agreement with respect
to Letters of Credit to be issued by it thereafter and (ii) references
herein to the term “Issuing Bank” shall be deemed to refer to such successor or
such addition or to any previous Issuing Bank, or to such successor or such
addition and all previous Issuing Banks, as the context shall require. After
the
resignation or replacement of an Issuing Bank hereunder, the replaced Issuing
Bank shall remain a party hereto and shall continue to have all the rights
and
obligations of an Issuing Bank under this Agreement with respect to Letters
of
Credit issued by it prior to such resignation or replacement, but shall not
be
required to issue additional Letters of Credit. If at any time there is more
than one Issuing Bank hereunder, Borrower may, in its discretion, select which
Issuing Bank is to issue any particular Letter of Credit.
(l) Other.
The
Issuing Bank shall be under no obligation to issue any Letter of Credit
if
(i) any
order, judgment or decree of any Governmental Authority or arbitrator shall
by
its terms purport to enjoin or restrain the Issuing Bank from issuing such
Letter of Credit, or any Requirement of Law applicable to the Issuing Bank
or
any request or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the Issuing Bank shall prohibit,
or request that the Issuing Bank refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon the
Issuing Bank with respect to such Letter of Credit any restriction, reserve
or
capital requirement (for which the Issuing Bank is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the Issuing
Bank any unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which the Issuing Bank in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
or
(ii) the
issuance of such Letter of Credit would violate one or more policies of the
Issuing Bank.
The
Issuing Bank shall be under no obligation to amend any Letter of Credit if
(A) the Issuing Bank would have no obligation at such time to issue
such
Letter of Credit in its amended form under the terms hereof, or (B) the
beneficiary of such Letter of Credit does not accept the proposed amendment
to
such Letter of Credit.
SECTION
2.19 Increase
in Commitments
.
(a) Borrower
Request.
Borrower may by written notice to the Administrative Agent elect to request
(x)
prior to the Revolving Maturity Date, an increase to the existing Revolving
Commitments and/or (y) the establishment of one or more new Term Loan
Commitments (each, an “Incremental
Term Loan Commitment”)
by an
amount not in excess of $100,000,000 in the aggregate and not less than
$10,000,000 individually. Each such notice shall specify (i) the date (each,
an
“Increase
Effective Date”)
on
which Borrower proposes that the increased or new Commitments shall be
effective, which shall be a date not less than 10 Business Days after the date
on which such notice is delivered to the Administrative Agent and (ii) the
identity of each Eligible Assignee to whom Borrower proposes any portion of
such
increased or new Commitments be allocated and the amounts of such allocations;
provided
that any
existing Lender approached to provide all or a portion of the increased or
new
Commitments may elect or decline, in its sole discretion, to provide such
increased or new Commitment.
(b) Conditions.
The
increased or new Commitments shall become effective, as of such Increase
Effective Date; provided
that:
(i) each
of
the conditions set forth in Section
4.02
shall be
satisfied;
(ii) no
Default shall have occurred and be continuing or would result from the
borrowings to be made on the Increase Effective Date;
(iii) after
giving pro forma effect to the borrowings to be made on the Increase Effective
Date and to any change in Consolidated EBITDA and any increase in Indebtedness
resulting from the consummation of any Permitted Acquisition concurrently with
such borrowings as of the date of the most recent financial statements delivered
pursuant to Section
5.01(a)
or
(b),
Borrower shall be in compliance with each of the covenants set forth in
Section
6.10;
(iv) Borrower
shall make any payments required pursuant to Section
2.13
in
connection with any adjustment of Revolving Loans pursuant to Section
2.19(d);
and
(v) Borrower
shall deliver or cause to be delivered any legal opinions or other documents
reasonably requested by the Administrative Agent in connection with any such
transaction.
(c) Terms
of New Loans and Commitments.
The
terms and provisions of Loans made pursuant to the new Commitments shall be
as
follows:
(i) except
as
contemplated by clause (v) below, the terms and provisions of Loans made
pursuant to Incremental Term Loan Commitments (“Incremental
Term Loans”)
shall
be, except as otherwise set forth herein or in the Increase Joinder, identical
to the Tranche B Loans (it being understood that Incremental Term Loans may
be
part of an existing tranche of Term Loans);
(ii) the
terms
and provisions of Revolving Loans made pursuant to new Commitments shall be
identical to the Revolving Loans;
(iii) the
weighted average life to maturity of all new Term Loans shall be no shorter
than
the weighted average life to maturity of the existing Term Loans;
(iv) the
maturity date of Incremental Term Loans (the “Incremental
Term Loan Maturity Date”)
shall
not be earlier than the Final Maturity Date;
(v) the
Applicable Margins for the new Term Loans shall be determined by Borrower and
the applicable new Lenders; provided,
however, that
the
Applicable Margins for the new Term Loans shall not be greater than the highest
Applicable Margins that may, under any circumstances, be payable with respect
to
Tranche B Loans plus 50 basis points (and the Applicable Margins applicable
to
the Tranche B Loans shall be increased to the extent necessary to achieve the
foregoing).
The
increased or new Commitments shall be effected by a joinder agreement (the
“Increase
Joinder”)
executed by Borrower, the Administrative Agent and each Lender making such
increased or new Commitment, in form and substance satisfactory to each of
them.
The Increase Joinder may, without the consent of any other Lenders, effect
such
amendments to this Agreement and the other Loan Documents as may be necessary
or
appropriate, in the opinion of the Administrative Agent, to effect the
provisions of this Section
2.19.
In
addition, unless otherwise specifically provided herein, all references in
Loan
Documents to Revolving Loans or Tranche B Loans shall be deemed, unless
the
context otherwise requires, to include references to Revolving Loans made
pursuant to new Commitments and Incremental Term Loans that are Tranche B
Term Loans, respectively, made pursuant to this Agreement.
(d) Adjustment
of Revolving Loans.
To the
extent the Commitments being increased on the relevant Increase Effective Date
are Revolving Commitments, then each of the Revolving Lenders having a Revolving
Commitment prior to such Increase Effective Date (the “Pre-Increase
Revolving Lenders”)
shall
assign to any Revolving Lender which is acquiring a new or additional Revolving
Commitment on the Increase Effective Date (the “Post-Increase
Revolving Lenders”),
and
such Post-Increase Revolving Lenders shall purchase from each Pre-Increase
Revolving Lender, at the principal amount thereof, such interests in the
Revolving Loans and participation interests in LC Exposure and Swingline Loans
outstanding on such Increase Effective Date as shall be necessary in order
that,
after giving effect to all such assignments and purchases, such Revolving Loans
and participation interests in LC Exposure and Swingline Loans will be held
by
Pre-Increase Revolving Lenders and Post-Increase Revolving Lenders ratably
in
accordance with their Revolving Commitments after giving effect to such
increased Revolving Commitments.
(e) Making
of New Term Loans.
On any
Increase Effective Date on which new Commitments for Term Loans are effective,
subject to the satisfaction of the foregoing terms and conditions, each Lender
of such new Commitment shall make a Term Loan to Borrower in an amount equal
to
its new Commitment.
(f) Equal
and Ratable Benefit.
The
Loans and Commitments established pursuant to this paragraph shall constitute
Loans and Commitments under, and shall be entitled to all the benefits afforded
by, this Agreement and the other Loan Documents, and shall, without limiting
the
foregoing, benefit equally and ratably from the Guarantees and security
interests created by the Security Documents, except that the new Loans may
(but
shall not be required to) be subordinated in right of payment or the Liens
securing the new Loans may be subordinated, in each case, as set forth in the
Increase Joinder. The Loan Parties shall take any actions reasonably required
by
the Administrative Agent to ensure and/or demonstrate that the Lien and security
interests granted by the Security Documents continue to be perfected under
the
UCC or otherwise after giving effect to the establishment of any such Class
of
Term Loans or any such new Commitments.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
Each
Loan
Party represents and warrants to the Administrative Agent, the Collateral Agent,
the Issuing Bank and each of the Lenders (with references to the Companies
being
references thereto after giving effect to the Transactions unless otherwise
expressly stated) that:
SECTION
3.01 Organization;
Powers
.
Each
Company (a) is duly organized and validly existing under the laws of
the
jurisdiction of its organization, (b) has all requisite power and authority
to carry on its business as now conducted and to own and lease its property
and
(c) is qualified and in good standing (to the extent such concept is
applicable in the applicable jurisdiction) to do business in every jurisdiction
where such qualification is required, except in such jurisdictions where the
failure to so qualify or be in good standing, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. There
is no existing default under any Organizational Document of any Company or
any
event which, with the giving of notice or passage of time or both, would
constitute a default by any party thereunder.
SECTION
3.02 Authorization;
Enforceability
.
The
Transactions to be entered into by each Loan Party are within such Loan Party’s
powers and have been duly authorized by all necessary action on the part of
such
Loan Party. This Agreement has been duly executed and delivered by each Loan
Party 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 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 No
Conflicts
.
Except
as set forth on Schedule 3.03,
the
Transactions (a) do not require any consent or approval of, registration
or
filing with, or any other action by, any Governmental Authority, except
(i) such as have been obtained or made and are in full force and effect,
(ii) filings necessary to perfect Liens created by the Loan Documents
and
(iii) consents, approvals, registrations, filings, permits or actions
the
failure to obtain or perform which could not reasonably be expected to result
in
a Material Adverse Effect, (b) will not violate the Organizational
Documents of any Company, (c) will not violate any Requirement of Law,
(d) will not violate or result in a default or require any consent or
approval under any indenture, agreement or other instrument binding upon any
Company or its property, or give rise to a right thereunder to require any
payment to be made by any Company, except for violations, defaults or the
creation of such rights that could not reasonably be expected to result in
a
Material Adverse Effect, and (e) will not result in the creation or
imposition of any Lien on any property of any Company, except Liens created
by
the Loan Documents and Permitted Liens.
SECTION
3.04 Financial
Statements; Projections
.
(a) Historical
Financial Statements.
Borrower has heretofore delivered to the Lenders the consolidated balance sheets
and related statements of income, stockholders’ equity and cash flows of each of
Borrower and the Acquired Business (i) as of and for the fiscal years
ended
December 31, 2002, December 31, 2003 and December 31,
2004,
audited by and accompanied by the unqualified opinion of Deloitte & Touche
LLP, independent public accountants, and (ii) as of and for the six-month
period ended June 30, 2005 and for the comparable period of the preceding
fiscal year, in each case, certified by the chief financial officer of Borrower
and the Acquired Business, respectively. Such financial statements and all
financial statements delivered pursuant to Sections 5.01(a)
and
(b)
have
been prepared in accordance with GAAP and present fairly in all material
respects the financial condition and results of operations and cash flows of
Borrower and the Acquired Business as of the dates and for the periods to which
they relate.
(b) No
Liabilities.
Except
as set forth in the financial statements referred to in Section
3.04(a),
there
are no liabilities of any Company of any kind, whether accrued, contingent,
absolute, determined, determinable or otherwise, which could reasonably be
expected to result in a Material Adverse Effect, and there is no existing
condition, situation or set of circumstances which could reasonably be expected
to result in such a liability, other than liabilities under the Loan Documents.
Since December 31, 2004, there has been no event, change, circumstance
or
occurrence that, individually or in the aggregate, has had or could reasonably
be expected to result in a Material Adverse Effect.
(c) Pro
Forma Financial Statements.
Borrower has heretofore delivered to the Lenders in a form reasonably acceptable
to the Administrative Agent (i) Borrower’s unaudited pro
forma
consolidated balance sheet and statements of income and cash flows and
pro
forma
EBITDA
for the fiscal year ended December 31, 2004 and as of and for the six-month
period ended June 30, 2005, and (ii) Borrower’s unaudited pro
forma
consolidated balance sheet and statement of income and pro
forma
EBITDA
as of and for the twelve months ended August 31, 2005, in each case after giving
effect to the Transactions as if they had occurred on such date in the case
of
the balance sheet and as of the beginning of all periods presented in the case
of the statements of income and (with respect to clause (i)) cash flows. Such
pro
forma
financial statements have been prepared in good faith by the Loan Parties,
based
on the assumptions stated therein (which assumptions are believed by the Loan
Parties on the date hereof and on the Closing Date to be reasonable), are based
on the best information reasonably available to the Loan Parties as of the
date
of delivery thereof and to the Loan Parties’ knowledge present fairly in all
material respects the pro
forma
consolidated financial position and results of operations of Borrower as of
such
date and for such periods, assuming that the Transactions had occurred at such
dates.
(d) Forecasts.
The
forecasts of financial performance of Borrower and its subsidiaries furnished
to
the Lenders have been prepared in good faith by Borrower and based on
assumptions believed by Borrower to reasonable.
SECTION
3.05 Properties
.
(a) Generally.
Each
Company has good title to, or valid leasehold interests in, all its property
material to its business, free and clear of all Liens except for, in the case
of
Collateral, Permitted Collateral Liens and, in the case of all other material
property, Permitted Liens and minor irregularities or deficiencies in title
that, individually or in the aggregate, do not interfere with its ability to
conduct its business as currently conducted or to utilize such property for
its
intended purpose. The property of the Companies, taken as a whole, (i) is
in good operating order, condition and repair (ordinary wear and tear excepted)
and (ii) constitutes all the property which is required for the business
and operations of the Companies as presently conducted.
(b) Real
Property.
Schedules
8(a)
and
8(b)
to the
Perfection Certificate dated the Closing Date contain a true and complete list
of each interest in Real Property (i) owned by any Company as of the
date
hereof and describes the type of interest therein held by such Company and
whether such owned Real Property is leased and if leased whether the underlying
Lease contains any option to purchase all or any portion of such Real Property
or any interest therein or contains any right of first refusal relating to
any
sale of such Real Property or any portion thereof or interest therein and
(ii) leased, subleased or otherwise occupied or utilized by any Company,
as
lessee, sublessee, franchisee or licensee, as of the date hereof and describes
the type of interest therein held by such Company and, in each of the cases
described in clauses (i) and (ii) of this Section 3.05(b),
whether
any Lease requires the consent of the landlord or tenant thereunder, or other
party thereto, to the Transactions.
(c) No
Casualty Event.
No
Company has received any notice of, nor has any knowledge of, the occurrence
or
pendency or contemplation of any Casualty Event affecting all or any portion
of
its property that could reasonably be expected to have a Material Adverse
Effect. No Mortgage encumbers improved Real Property that is located in an
area
that has been identified by the Secretary of Housing and Urban Development
as an
area having special flood hazards within the meaning of the National Flood
Insurance Act of 1968 unless flood insurance available under such Act has been
obtained in accordance with Section
5.04.
(d) Collateral.
Each
Company owns or has rights to use all of the Collateral and all rights with
respect to any of the foregoing used in, necessary for or material to each
Company’s business as currently conducted. The use by each Company of such
Collateral and all such rights with respect to the foregoing do not infringe
on
the rights of any person other than such infringement which could not,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect. No claim has been made and remains outstanding that any
Company’s use of any Collateral does or may violate the rights of any third
party that could, individually or in the aggregate, reasonably be expected
to
result in a Material Adverse Effect.
SECTION
3.06 Intellectual
Property
.
(a) Ownership/No
Claims.
Each
Loan Party owns, or is licensed to use, all patents, patent applications,
trademarks, trade names, service marks, copyrights, technology, trade secrets,
proprietary information, domain names, know-how and processes necessary for
the
conduct of its business as currently conducted (the “Intellectual
Property”),
except for those the failure to own or license which, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No claim has been asserted and is pending by any person challenging
or
questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does any Loan Party know
of
any valid basis for any such claim. The use of such Intellectual Property by
each Loan Party does not infringe the rights of any person, except for such
claims and infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
(b) Registrations.
Except
pursuant to licenses and other user agreements entered into by each Loan Party
in the ordinary course of business that are listed in Schedule
12(a)
or
12(b)
to the
Perfection Certificate, on and as of the date hereof (i) each Loan Party
owns and possesses the right to use, and has done nothing to authorize or enable
any other person to use, any copyright, patent or trademark (as such terms
are
defined in the Security Agreement) listed in Schedule
12(a)
or
12(b)
to the
Perfection Certificate and (ii) all registrations listed in Schedule
12(a)
or
12(b)
to the
Perfection Certificate are valid and in full force and effect.
(c) No
Violations or Proceedings.
To each
Loan Party’s knowledge, on and as of the date hereof, there is no material
violation by others of any right of such Loan Party with respect to any
copyright, patent or trademark listed in Schedule
12(a)
or
12(b)
to the
Perfection Certificate, pledged by it under the name of such Loan Party except
as may be set forth on Schedule
3.06(c).
SECTION
3.07 Equity
Interests and Subsidiaries
.
(a) Equity
Interests.
Schedules
1(a)
and
10(a)
to the
Perfection Certificate dated the Closing Date set forth a list of (i) all
the Subsidiaries of Borrower and their jurisdictions of organization as of
the
Closing Date and (ii) the number of each class of its Equity Interests
authorized, and the number outstanding, on the Closing Date and the number
of
shares covered by all outstanding options, warrants, rights of conversion or
purchase and similar rights at the Closing Date. All Equity Interests of each
Company are duly and validly issued and are fully paid and non-assessable,
and,
other than the Equity Interests of Borrower, are owned by Borrower, directly
or
indirectly through Wholly Owned Subsidiaries, except as described on such
Schedules. Each Loan Party is the record and beneficial owner of, and has good
and marketable title to, the Equity Interests pledged by it under the Security
Agreement, free of any and all Liens, rights or claims of other persons, except
the security interest created by the Security Agreement, and there are no
outstanding warrants, options or other rights to purchase, or shareholder,
voting trust or similar agreements outstanding with respect to, or property
that
is convertible into, or that requires the issuance or sale of, any such Equity
Interests.
(b) No
Consent of Third Parties Required.
No
consent of any person including any other general or limited partner, any other
member of a limited liability company, any other shareholder or any other trust
beneficiary is necessary in connection with the creation, perfection or first
priority status of the security interest of the Collateral Agent in any Equity
Interests pledged to the Collateral Agent for the benefit of the Secured Parties
under the Security Agreement or the exercise by the Collateral Agent of the
voting or other rights provided for in the Security Agreement or the exercise
of
remedies in respect thereof.
(c) Organizational
Chart.
An
accurate organizational chart, showing the ownership structure of Borrower
and
each Subsidiary on the Closing Date, and after giving effect to the
Transactions, is set forth on Schedule
10(a)
to the
Perfection Certificate dated the Closing Date.
SECTION
3.08 Litigation;
Compliance with Laws
.
There
are no actions, suits or proceedings at law or in equity by or before any
Governmental Authority now pending or, to the knowledge of any Company,
threatened against or affecting any Company or any business, property or rights
of any Company (i) that involve any Loan Document or any of the
Transactions or (ii) 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. Except for matters covered by Section 3.18,
no
Company or any of its property is in violation of, nor will the continued
operation of its property as currently conducted violate, any Requirements
of
Law (including any zoning or building ordinance, code or approval or any
building permits) or any restrictions of record or agreements affecting any
Company’s Real Property or is in default with respect to any Requirement of Law,
where such violation or default, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.
SECTION
3.09 Agreements
.
No
Company is a party to any agreement or instrument or subject to any corporate
or
other constitutional restriction that has resulted or could reasonably be
expected to result in a Material Adverse Effect. No Company is in material
breach of any indenture or other agreement or instrument evidencing
Indebtedness, or any other agreement or instrument to which it is a party or
by
which it or any of its property is or may be bound, where such breach could
reasonably be expected to result in a Material Adverse Effect, and no condition
exists which, with the giving of notice or the lapse of time or both, would
result in a material breach having such an effect. Schedule 3.09
accurately and completely lists all material agreements (other than leases
of
Real Property set forth on Schedule
8(a)
or
8(b)
to the
Perfection Certificate dated the Closing Date) to which any Company is a party
which are in effect on the date hereof in connection with the operation of
the
business conducted thereby and Borrower has delivered to the Administrative
Agent complete and correct copies of all such material agreements, including
any
amendments, supplements or modifications with respect thereto, and all such
agreements are in full force and effect. For purposes of this Section 3.09,
a
“material agreement” shall mean an agreement that as of the date hereof
constitutes a “Material Contract” within the meaning of Item 601(10) of
Regulation S-K.
SECTION
3.10 Federal
Reserve Regulations
.
No
Company is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of buying or carrying Margin Stock.
No part of the proceeds of any Loan or any Letter of Credit will be used,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the regulations of the Board, including Regulation
T, U
or X. The pledge of the Securities Collateral pursuant to the Security Agreement
does not violate such regulations.
SECTION
3.11 Investment
Company Act; Public Utility Holding Company Act
.
No
Company is (a) an “investment company” or a company “controlled” by an
“investment company,” as defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended, or (b) a “holding company,” an
“affiliate” of a “holding company” or a “subsidiary company” of a “holding
company,” as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935, as amended.
SECTION
3.12 Use
of Proceeds
.
Borrower will use the proceeds of (a) the Term Loans to finance the
Transactions and (b) the Revolving Loans and Swingline Loans after the
Closing Date for general corporate purposes (including to effect Permitted
Acquisitions), it being understood that no Revolving Loans shall be made on
the
Closing Date.
SECTION
3.13 Taxes
.
Each
Company has (a) timely filed or caused to be timely filed all federal
Tax
Returns and all material state, local and foreign Tax Returns by it and all
such
Tax Returns are true and correct in all material respects and (b) duly
and
timely paid, collected or remitted or caused to be duly and timely paid,
collected or remitted all Taxes (whether or not shown on any Tax Return) due
and
payable, collectible or remittable by it and all assessments received by it,
except Taxes (i) that are being contested in good faith by appropriate
proceedings and for which such Company has set aside on its books adequate
reserves in accordance with GAAP and (ii) which could not, individually
or
in the aggregate, have a Material Adverse Effect. Each Company has made adequate
provision in accordance with GAAP for all Taxes not yet due and payable. Each
Company is unaware of any proposed or pending tax assessments, deficiencies
or
audits that could be reasonably expected to, individually or in the aggregate,
result in a Material Adverse Effect. No Company has ever been a party to any
understanding or arrangement constituting a “tax shelter” within the meaning of
Section 6111(c), Section 6111(d) or Section 6662(d)(2)(C)(iii) of the Code,
or
has ever “participated” in a “reportable transaction” within the meaning of
Treasury Regulation Section 1.6011-4, except as could not be reasonably expected
to, individually or in the aggregate, result in a Material Adverse
Effect.
SECTION
3.14 No
Material Misstatements
.
No
information, report, financial statement, certificate, Borrowing Request, LC
Request, exhibit or schedule furnished by or on behalf of any Company to the
Administrative Agent or any Lender in connection with the negotiation of any
Loan Document or included therein or delivered pursuant thereto, taken as a
whole, or the Confidential Information Memorandum contained or contains any
material misstatement of fact or omitted or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were or are made, not misleading as of the date such
information is dated or certified; provided
that to
the extent any such information, report, financial statement, exhibit or
schedule was based upon or constitutes a forecast or projection, each Company
represents only that it acted in good faith and utilized assumptions believed
by
it to be reasonable in the preparation of such information, report, financial
statement, exhibit or schedule.
SECTION
3.15 Labor
Matters
.
As of
the Closing Date, there are no strikes, lockouts or slowdowns against any
Company pending or, to the knowledge of any Company, threatened. The hours
worked by and payments made to employees of any Company have not been in
violation of the Fair Labor Standards Act of 1938, as amended, or any other
applicable federal, state, local or foreign law dealing with such matters in
any
manner which could reasonably be expected to result in a Material Adverse
Effect. All payments due from any Company, or for which any claim may be made
against any Company, on account of wages and employee health and welfare
insurance and other benefits, have been paid or accrued as a liability on the
books of such Company except where the failure to do so could not reasonably
be
expected to result in a Material Adverse Effect. The consummation of the
Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
to which any Company is bound.
SECTION
3.16 Solvency
.
Immediately after the consummation of the Transactions to occur on the Closing
Date and immediately following the making of each Loan and after giving effect
to the application of the proceeds of each Loan, (a) the fair value
of the
properties of each Loan Party (individually and on a consolidated basis with
its
Subsidiaries) will exceed its debts and liabilities, subordinated, contingent
or
otherwise; (b) the present fair saleable value of the property of each
Loan
Party (individually and on a consolidated basis with its Subsidiaries) will
be
greater than the amount that will be required to pay the probable liability
of
its debts and other liabilities, subordinated, contingent or otherwise, as
such
debts and other liabilities become absolute and matured; (c) each Loan
Party (individually and on a consolidated basis with its Subsidiaries) 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 (individually and on a consolidated basis with its Subsidiaries) will
not
have unreasonably small capital with which to conduct its business in which
it
is engaged as such business is now conducted and is proposed to be conducted
following the Closing Date.
SECTION
3.17 Employee
Benefit Plans
.
(a) Each
Company and its ERISA Affiliates is in compliance in all material respects
with
the applicable provisions of ERISA and the Code and the regulations and
published interpretations thereunder. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such
ERISA
Events, could reasonably be expected to result in material liability of any
Company or any of its ERISA Affiliates or the imposition of a Lien on any of
the
property of any Company. The present value of all accumulated benefit
obligations of all underfunded Plans (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
by
more than $250,000 the fair market value of the property of all such underfunded
Plans. Using actuarial assumptions and computation methods consistent with
subpart I of subtitle E of Title IV of ERISA, the aggregate liabilities of
each
Company or its ERISA Affiliates to all Multiemployer Plans in the event of
a
complete withdrawal therefrom, as of the close of the most recent fiscal year
of
each such Multiemployer Plan, could not reasonably be expected to result in
a
Material Adverse Effect.
(b) Except
where noncompliance would not reasonably be expected to result in a Material
Adverse Effect, each Foreign Plan has been maintained in substantial compliance
with its terms and with the requirements of any and all applicable laws,
statutes, rules, regulations and orders and has been maintained, where required,
in good standing with applicable regulatory authorities, and no Company has
incurred any material obligation in connection with the termination of or
withdrawal from any Foreign Plan. The present value of the accrued benefit
liabilities (whether or not vested) under each Foreign Plan which is funded,
determined as of the end of the most recently ended fiscal year of the
applicable Company (based on the actuarial assumptions used for purposes of
the
applicable jurisdiction's financial reporting requirements), did not exceed
the
current value of the assets of such Foreign Plan, and for each Foreign Plan
which is not funded, the obligations of such Foreign Plan are properly
accrued.
SECTION
3.18 Environmental
Matters
.
(a) Except
as
set forth in Schedule 3.18
and
except as, individually or in the aggregate, could not reasonably be expected
to
result in a Material Adverse Effect:
(i) The
Companies and their businesses, operations and Real Property are in compliance
with, and the Companies have no liability under, any applicable Environmental
Law; and under the currently effective business plan of the Companies, no
expenditures or operational adjustments will be required in order to comply
with
applicable Environmental Laws during the next five years;
(ii) The
Companies have obtained all Environmental Permits required for the conduct
of
their businesses and operations, and the ownership, operation and use of their
property, under Environmental Law, all such Environmental Permits are valid
and
in good standing and, under the currently effective business plan of the
Companies, no expenditures or operational adjustments will be required in order
to renew or modify such Environmental Permits during the next five
years;
(iii) There
has
been no Release or threatened Release of Hazardous Material on, at, under or
from any Real Property or facility presently or formerly owned, leased or
operated by the Companies or their predecessors in interest that could result
in
liability by the Companies under any applicable Environmental Law;
(iv) There
is
no Environmental Claim pending or, to the knowledge of the Companies, threatened
against the Companies, or relating to the Real Property currently or formerly
owned, leased or operated by the Companies or their predecessors in interest
or
relating to the operations of the Companies, and there are no actions,
activities, circumstances, conditions, events or incidents that could form
the
basis of such an Environmental Claim; and
(v) No
person
with an indemnity or contribution obligation to the Companies relating to
compliance with or liability under Environmental Law is in default with respect
to such obligation.
(b) Except
as
set forth in Schedule 3.18:
(i) No
Company is obligated to perform any action or otherwise incur any expense under
Environmental Law pursuant to any order, decree, judgment or agreement by which
it is bound or has assumed by contract, agreement or operation of law, and
no
Company is conducting or financing any Response pursuant to any Environmental
Law with respect to any Real Property or any other location;
(ii) No
Real
Property or facility owned, operated or leased by the Companies and, to the
knowledge of the Companies, no Real Property or facility formerly owned,
operated or leased by the Companies or any of their predecessors in interest
is
(i) listed or proposed for listing on the National Priorities List
promulgated pursuant to CERCLA or (ii) listed on the Comprehensive
Environmental Response, Compensation and Liability Information System
promulgated pursuant to CERCLA or (iii) included on any similar list
maintained by any Governmental Authority including any such list relating to
petroleum;
(iii) No
Lien
has been recorded or, to the knowledge of any Company, threatened under any
Environmental Law with respect to any Real Property or other assets of the
Companies;
(iv) The
execution, delivery and performance of this Agreement and the consummation
of
the transactions contemplated hereby will not require any notification,
registration, filing, reporting, disclosure, investigation, remediation or
cleanup pursuant to any Governmental Real Property Disclosure Requirements
or
any other applicable Environmental Law; and
(v) The
Companies have made available to the Lenders all material records and files
in
the possession, custody or control of, or otherwise reasonably available to,
the
Companies concerning compliance with or liability under Environmental Law,
including those concerning the actual or suspected existence of Hazardous
Material at Real Property or facilities currently or formerly owned, operated,
leased or used by the Companies.
SECTION
3.19 Insurance
.
Schedule 3.19
sets
forth a true, complete and correct description of all insurance maintained
by
each Company as of the Closing Date. All insurance maintained by the Companies
is in full force and effect, all premiums have been duly paid, no Company has
received notice of violation or cancellation thereof, the Premises, and the
use,
occupancy and operation thereof, comply in all material respects with all
Insurance Requirements, and there exists no material default under any Insurance
Requirement. Each Company has insurance in such amounts and covering such risks
and liabilities as are customary for companies of a similar size engaged in
similar businesses in similar locations.
SECTION
3.20 Security
Documents
.
(a) Security
Agreement.
The
Security Agreement is effective to create in favor of the Collateral Agent
for
the benefit of the Secured Parties, legal, valid and enforceable Liens on,
and
security interests in, the Security Agreement Collateral and, when
(i) financing statements and other filings in appropriate form are filed
in
the offices specified on Schedule 7
to the
Perfection Certificate and (ii) upon the taking of possession or control
by
the Collateral Agent of the Security Agreement Collateral with respect to which
a security interest may be perfected only by possession or control (which
possession or control shall be given to the Collateral Agent to the extent
possession or control by the Collateral Agent is required by each Security
Agreement), the Liens created by the Security Agreement shall constitute fully
perfected Liens on, and security interests in, all right, title and interest
of
the grantors in the Security Agreement Collateral (other than such Security
Agreement Collateral in which a security interest cannot be perfected under
the
UCC as in effect at the relevant time in the relevant jurisdiction), in each
case subject to no Liens other than Permitted Collateral Liens.
(b) Copyright
Office Filing.
When
the Security Agreement or a short form thereof is filed in the United States
Copyright Office, the Liens created by such Security Agreement shall constitute
fully perfected Liens on, and security interests in, all right, title and
interest of the grantors thereunder in the Registered Copyrights and Registered
Copyright Licenses (each as defined in such Security Agreement), in each case
subject to no Liens other than Permitted Collateral Liens.
(c) [Reserved].
(d) Valid
Liens.
Each
Security Document delivered pursuant to Sections 5.11
and
5.12
will,
upon execution and delivery thereof, be effective to create in favor of the
Collateral Agent, for the benefit of the Secured Parties, legal, valid and
enforceable Liens on, and security interests in, all of the Loan Parties’ right,
title and interest in and to the Collateral thereunder, and (i) when
all
appropriate filings or recordings are made in the appropriate offices as may
be
required under applicable law and (ii) upon the taking of possession
or
control by the Collateral Agent of such Collateral with respect to which a
security interest may be perfected only by possession or control (which such
possession or control shall be given to the Collateral Agent to the extent
required by any Security Document), such Security Document will constitute
fully
perfected Liens on, and security interests in, all right, title and interest
of
the Loan Parties in such Collateral (other than such Security Agreement
Collateral in which a security interest cannot be perfected under the UCC as
in
effect at the relevant time in the relevant jurisdiction or applicable Federal
law with respect to Intellectual Property), in each case subject to no Liens
other than the applicable Permitted Collateral Liens.
SECTION
3.21 Acquisition
Documents; Representations and Warranties in Acquisition
Agreement
.
Schedule 3.21
lists
(i) each exhibit, schedule, annex or other attachment to the Acquisition
Agreement and (ii) each agreement, certificate, instrument, letter or
other
document contemplated by the Acquisition Agreement or any item referred to
in
clause (i) to be entered into, executed or delivered or to become effective
in connection with the Acquisition or otherwise entered into, executed or
delivered in connection with the Acquisition. The Lenders have been furnished
true and complete copies of each Acquisition Document to the extent executed
and
delivered on or prior to the Closing Date. All representations and warranties
of
each Company set forth in the Acquisition Agreement were true and correct in
all
material respects as of the time such representations and warranties were made
and shall be true and correct in all material respects as of the Closing Date
as
if such representations and warranties were made on and as of such date, unless
stated to relate to a specific earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of such
earlier date.
SECTION
3.22 Anti-Terrorism
Law
.
(a)
No Loan
Party and, to the knowledge of the Loan Parties, none of its Affiliates is
in
violation of any Requirement of Law relating to terrorism or money laundering
(“Anti-Terrorism
Laws”),
including Executive Order No. 13224 on Terrorist Financing, effective
September 24, 2001 (the “Executive
Order”),
and
the Uniting and Strengthening America by Providing Appropriate Tools Required
to
Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.
(b) No
Loan
Party and to the knowledge of the Loan Parties, no Affiliate or broker or other
agent of any Loan Party acting or benefiting in any capacity in connection
with
the Loans is any of the following:
(i) a
person
that is listed in the annex to, or is otherwise subject to the provisions of,
the Executive Order;
(ii) a
person
owned or controlled by, or acting for or on behalf of, any person that is listed
in the annex to, or is otherwise subject to the provisions of, the Executive
Order;
(iii) a
person
with which any Lender is prohibited from dealing or otherwise engaging in any
transaction by any Anti-Terrorism Law;
(iv) a
person
that commits, threatens or conspires to commit or supports “terrorism” as
defined in the Executive Order; or
(v) a
person
that is named as a “specially designated national and blocked person” on the
most current list published by the U.S. Treasury Department Office of Foreign
Assets Control (“OFAC”)
at its
official website or any replacement website or other replacement official
publication of such list.
(c) No
Loan
Party and, to the knowledge of the Loan Parties, no broker or other agent of
any
Loan Party acting in any capacity in connection with the Loans (i) conducts
any business or engages in making or receiving any contribution of funds, goods
or services to or for the benefit of any person described in paragraph (b)
above, (ii) deals in, or otherwise engages in any transaction relating
to,
any property or interests in property blocked pursuant to the Executive Order,
or (iii) engages in or conspires to engage in any transaction that evades
or avoids, or has the purpose of evading or avoiding, or attempts to violate,
any of the prohibitions set forth in any Anti-Terrorism Law.
ARTICLE
IV
CONDITIONS
TO CREDIT EXTENSIONS
SECTION
4.01 Conditions
to Initial Credit Extension
.
The
obligation of each Lender and, if applicable, each Issuing Bank to fund the
initial Credit Extension requested to be made by it shall be subject to the
prior or concurrent satisfaction of each of the conditions precedent set forth
in this Section 4.01.
(a) Loan
Documents.
All
legal matters incident to this Agreement, the Credit Extensions hereunder and
the other Loan Documents shall be satisfactory to the Lenders, to the Issuing
Bank and to the Administrative Agent and there shall have been delivered to
the
Administrative Agent an executed counterpart of each of the Loan Documents
and
the Perfection Certificate.
(b) Corporate
Documents.
The
Administrative Agent shall have received:
(i) a
certificate of the secretary or assistant secretary of each Loan Party dated
the
Closing Date, certifying (A) that attached thereto is a true and complete
copy of each Organizational Document of such Loan Party certified (to the extent
applicable) as of a recent date by the Secretary of State of the state of its
organization, (B) that attached thereto is a true and complete copy
of
resolutions duly adopted by the Board of Directors of such Loan Party
authorizing the execution, delivery and performance of the Loan Documents to
which such person is a party and, in the case of Borrower, the borrowings
hereunder, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect and (C) as to the incumbency
and
specimen signature of each officer executing any Loan Document or any other
document delivered in connection herewith on behalf of such Loan Party (together
with a certificate of another officer as to the incumbency and specimen
signature of the secretary or assistant secretary executing the certificate
in
this clause (i));
(ii) a
certificate as to the good standing of each Loan Party (in so-called “long-form”
if available) as of a recent date, from such Secretary of State (or other
applicable Governmental Authority); and
(iii) such
other documents as the Lenders, the Issuing Bank or the Administrative Agent
may
reasonably request.
(c) Officers’
Certificate.
The
Administrative Agent shall have received a certificate, dated the Closing Date
and signed by the chief financial officer of Borrower, confirming compliance
with the conditions precedent set forth in this Section 4.01
and
Sections 4.02(b),
(c)
and
(d).
(d) Financings
and Other Transactions, etc.
(i) The
Transactions shall have been consummated or shall be consummated simultaneously
on the Closing Date, in each case in all material respects in accordance with
the terms hereof and the terms of the Transaction Documents, without the waiver
or amendment of any such terms not approved by the Administrative Agent and
the
Arranger other than any waiver or amendment thereof that is not materially
adverse to the interests of the Lenders.
(ii) Borrower
shall have delivered to the Administrative Agent an executed counterpart of
the
Escrow Agreement in form and substance to the reasonable satisfaction of the
Administrative Agent.
(iii) The
terms
of the Rollover Equity shall not require any payments or other distributions
of
cash or property in respect thereof other than payments in kind, or any
purchases, redemptions or other acquisitions thereof for cash or property other
than payments in kind, in each case prior to the payment in full of all
obligations under the Loan Documents, except as permitted by the Loan
Documents.
(iv) The
Lenders shall be satisfied with the management, capitalization, the terms and
conditions of any equity arrangements and the corporate or other organizational
structure of the Companies (after giving effect to the Transactions) and any
indemnities, employment and other arrangements entered into in connection with
the Transactions.
(v) The
Refinancing shall have been consummated in full to the satisfaction of the
Lenders with all liens in favor of the existing lenders being unconditionally
released; the Administrative Agent shall have received a “pay-off” letter in
form and substance reasonably satisfactory to the Administrative Agent with
respect to all debt being refinanced in the Refinancing; and the Administrative
Agent shall have received from any person holding any Lien securing any such
debt, such UCC termination statements, mortgage releases, releases of
assignments of leases and rents, releases of security interests in Intellectual
Property and other instruments, in each case in proper form for recording,
as
the Administrative Agent shall have reasonably requested to release and
terminate of record the Liens securing such debt.
(e) Financial
Statements; Pro Forma Balance Sheet; Projections.
The
Lenders shall have received and shall be satisfied with the form and substance
of the financial statements described in Section 3.04
and with
the forecasts of the financial performance of Borrower, the Acquired Business
and their respective Subsidiaries.
(f) Indebtedness
and Minority Interests.
After
giving effect to the Transactions and the other transactions contemplated
hereby, no Company shall have outstanding any Indebtedness or preferred stock
other than (i) the Loans and Credit Extensions hereunder, (ii) the
Indebtedness listed on Schedule 6.01(b),
(iii) Indebtedness owed to Borrower or any Guarantor and (iv) Indebtedness
owed by a Subsidiary that is not a Guarantor to a Subsidiary that is not a
Guarantor.
(g) Opinions
of Counsel.
The
Administrative Agent shall have received, on behalf of itself, the other Agents,
the Arranger, the Lenders and the Issuing Bank, a favorable written opinion
of
(i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp,
(ii)
Law Office of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ PLLC, special counsel for the Loan Parties,
and (iii) each local counsel listed on Schedule 4.01(g),
in each
case (A) dated the Closing Date, (B) addressed to the Agents,
the
Issuing Bank and the Lenders and (C) covering the matters set forth
in
Exhibit
N
and such
other matters relating to the Loan Documents and the Transactions as the
Administrative Agent shall reasonably request.
(h) Solvency
Certificate.
The
Administrative Agent shall have received a solvency certificate in the form
of
Exhibit O,
dated
the Closing Date and signed by the chief financial officer of
Borrower.
(i) Requirements
of Law.
The
Lenders shall be satisfied that Borrower, its Subsidiaries and the Transactions
shall be in full compliance with all material Requirements of Law, including
Regulations T, U and X of the Board, and shall have received satisfactory
evidence of such compliance reasonably requested by them.
(j) Consents.
The
Lenders shall be satisfied that (i) all requisite Governmental Authorities
shall
have approved or consented to the Transactions, (ii) all other material
third-party consents, except for such other third-party consents that would
not,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, shall have been obtained and (iii) there shall be no
governmental or judicial action, actual or threatened, that has or would have,
singly or in the aggregate, a reasonable likelihood of restraining, preventing
or imposing burdensome conditions on the Transactions or the other transactions
contemplated hereby.
(k) Litigation.
There
shall be no litigation, public or private, or administrative proceedings,
governmental investigation or other legal or regulatory developments, actual
or
threatened, that, singly or in the aggregate, could reasonably be expected
to
result in a Material Adverse Effect, or could materially and adversely affect
the ability of Borrower and the Subsidiaries to fully and timely perform their
respective obligations under the Transaction Documents, or the ability of the
parties to consummate the financings contemplated hereby or the other
Transactions.
(l) Sources
and Uses.
The
sources and uses of the Loans shall be as set forth in Section
3.12.
(m) Fees.
The
Arranger and Administrative Agent shall have received all Fees and other amounts
due and payable on or prior to the Closing Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses (including
the
reasonable legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ llp,
special
counsel to the Agents, and the reasonable fees and expenses of any local
counsel, foreign counsel, appraisers, consultants and other advisors) required
to be reimbursed or paid by Borrower hereunder or under any other Loan
Document.
(n) Personal
Property Requirements.
The
Collateral Agent shall have received:
(i) all
certificates, agreements or instruments representing or evidencing the
Securities Collateral accompanied by instruments of transfer and stock powers
undated and endorsed in blank;
(ii) the
Intercompany Note executed by and among Borrower and each of its Subsidiaries,
accompanied by instruments of transfer undated and endorsed in
blank;
(iii) all
other
certificates, agreements, including Control Agreements, or instruments necessary
to perfect the Collateral Agent’s security interest in all Chattel Paper, all
Instruments, all Deposit Accounts and all Investment Property of each Loan
Party
(as each such term is defined in the Security Agreement and to the extent
required by the Security Agreement);
(iv) UCC
financing statements in appropriate form for filing under the UCC, filings
with
the United States Patent and Trademark Office and United States Copyright Office
and such other documents under applicable Requirements of Law in each
jurisdiction as may be necessary or appropriate or, in the opinion of the
Collateral Agent, desirable to perfect the Liens created, or purported to be
created, by the Security Documents and, with respect to all UCC financing
statements required to be filed pursuant to the Loan Documents, evidence
satisfactory to the Administrative Agent that Borrower has retained, at its
sole
cost and expense, a service provider acceptable to the Administrative Agent
for
the tracking of all such financing statements and notification to the
Administrative Agent, of, among other things, the upcoming lapse or expiration
thereof;
(v) certified
copies of UCC, United States Patent and Trademark Office and United States
Copyright Office, tax and judgment lien searches, bankruptcy and pending lawsuit
searches or equivalent reports or searches, each of a recent date listing all
effective financing statements, lien notices or comparable documents that name
any Loan Party as debtor and that are filed in those state and county
jurisdictions in which any property of any Loan Party is located and the state
and county jurisdictions in which any Loan Party is organized or maintains
its
principal place of business and such other searches that the Collateral Agent
deems necessary or appropriate, none of which encumber the Collateral covered
or
intended to be covered by the Security Documents (other than Permitted
Collateral Liens or any other Liens acceptable to the Collateral
Agent);
(vi) with
respect to each location set forth on Schedule 4.01(n)(vi),
a
Landlord Access Agreement or Bailee Letter, as applicable; provided
that no
such Landlord Access Agreement or Bailee Letter shall be required with respect
to any Real Property that could not be obtained after the Loan Party that is
the
lessee of such Real Property or owner of the inventory or other personal
property Collateral stored with the bailee thereof, as applicable, shall have
used all commercially reasonable efforts to do so; and
(vii) evidence
acceptable to the Collateral Agent of payment or arrangements for payment by
the
Loan Parties of all applicable recording taxes, fees, charges, costs and
expenses required for the recording of the Security Documents.
(o) [Reserved].
(p) Insurance.
The
Administrative Agent shall have received a copy of, or a certificate as to
coverage under, the insurance policies required by Section 5.04
and the
applicable provisions of the Security Documents, each of which shall be endorsed
or otherwise amended to include a “standard” or “New York” lender’s loss payable
or mortgagee endorsement (as applicable) and shall name the Collateral Agent,
on
behalf of the Secured Parties, as additional insured, in form and substance
satisfactory to the Administrative Agent.
(q) USA
Patriot Act.
The
Lenders shall have received, sufficiently in advance of the Closing Date, all
documentation and other information required by bank regulatory authorities
under applicable “know your customer” and anti-money laundering rules and
regulations, including without limitation, the United States PATRIOT Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)) including, without
limitation, the information described in Section
10.13.
(r) Minimum
EBITDA.
Consolidated EBITDA for the twelve months ended August 31, 2005 shall
not
be less than $89,700,000 calculated on a pro
forma
basis
reasonably acceptable to the Administrative Agent.
SECTION
4.02 Conditions
to All Credit Extensions
.
The
obligation of each Lender and each Issuing Bank to make any Credit Extension
(including the initial Credit Extension) shall be subject to, and to the
satisfaction of, each of the conditions precedent set forth below.
(a) Notice.
The
Administrative Agent shall have received a Borrowing Request as required by
Section 2.03
(or such
notice shall have been deemed given in accordance with Section 2.03)
if
Loans are being requested or, in the case of the issuance, amendment, extension
or renewal of a Letter of Credit, the Issuing Bank and the Administrative Agent
shall have received an LC Request as required by Section 2.18(b)
or, in
the case of the Borrowing of a Swingline Loan, the Swingline Lender and the
Administrative Agent shall have received a Borrowing Request as required by
Section 2.17(b).
(b) No
Default.
Borrower and each other Loan Party shall be in compliance in all material
respects with all the terms and provisions set forth herein and in each other
Loan Document on its part to be observed or performed, and, at the time of
and
immediately after giving effect to such Credit Extension and the application
of
the proceeds thereof, no Default shall have occurred and be continuing on such
date.
(c) Representations
and Warranties.
Each of
the representations and warranties made by any Loan Party set forth in
Article III
hereof
or in any other Loan Document shall be true and correct in all material respects
(except that any representation and warranty that is qualified as to
“materiality” or “Material Adverse Effect” shall be true and correct in all
respects) on and as of the date of such Credit Extension with the same effect
as
though made on and as of such date, except to the extent such representations
and warranties expressly relate to an earlier date.
(d) No
Legal Bar.
No
order, judgment or decree of any Governmental Authority shall purport to
restrain any Lender from making any Loans to be made by it. No injunction or
other restraining order shall have been issued, shall be pending or noticed
with
respect to any action, suit or proceeding seeking to enjoin or otherwise prevent
the consummation of, or to recover any damages or obtain relief as a result
of,
the transactions contemplated by this Agreement or the making of Loans
hereunder.
Each
of
the delivery of a Borrowing Request or an LC Request and the acceptance by
Borrower of the proceeds of such Credit Extension shall constitute a
representation and warranty by Borrower and each other Loan Party that on the
date of such Credit Extension (both immediately before and after giving effect
to such Credit Extension and the application of the proceeds thereof) the
conditions contained in Sections 4.02(b)-(d)
have
been satisfied. Borrower shall provide such information (including calculations
in reasonable detail of the covenants in Section 6.10)
as the
Administrative Agent may reasonably request to confirm that the conditions
in
Sections 4.02(b)-(d)
have
been satisfied.
ARTICLE
V
AFFIRMATIVE
COVENANTS
Each
Loan
Party warrants, covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the principal of and interest on each Loan, all Fees and all other expenses
or amounts payable under any Loan Document shall have been paid in full and
all
Letters of Credit have been canceled or have expired and all amounts drawn
thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, each Loan Party will, and will cause each of
its
Subsidiaries (other than each of its Subsidiaries that is an Excluded
Subsidiary) to:
SECTION
5.01 Financial
Statements, Reports, etc.
Furnish
to the Administrative Agent and each Lender:
(a) Annual
Reports.
As soon
as available and in any event within 90 days (or such earlier date on
which
Borrower is required to file a Form 10-K under the Exchange Act) after the
end
of each fiscal year, beginning with the fiscal year ending December 31,
2005, (i) the consolidated balance sheet of Borrower as of the end of
such
fiscal year and related consolidated statements of income, cash flows and
stockholders’ equity for such fiscal year, in comparative form with such
financial statements as of the end of, and for, the preceding fiscal year,
and
notes thereto, all prepared in accordance with Regulation S-X and accompanied
by
an opinion of Deloitte & Touche LLP or other independent public accountants
of recognized national standing satisfactory to the Administrative Agent (which
opinion shall not be qualified as to scope or contain any going concern or
other
qualification), stating that such financial statements fairly present, in all
material respects, the consolidated financial condition, results of operations
and cash flows of Borrower as of the dates and for the periods specified in
accordance with GAAP, (ii) a management report in a form reasonably
satisfactory to the Administrative Agent setting forth statement of income
items
and Consolidated EBITDA of Borrower for such fiscal year, showing variance,
by
dollar amount and percentage, from amounts for the previous fiscal year and
budgeted amounts, and (iii) a narrative report and management’s discussion
and analysis, in a form reasonably satisfactory to the Administrative Agent,
of
the financial condition and results of operations of Borrower for such fiscal
year, as compared to amounts for the previous fiscal year and budgeted amounts
(it being understood that the information required by clause (i) may be
furnished in the form of a Form 10-K);
(b) Quarterly
Reports.
As soon
as available and in any event within 45 days (or such earlier date on
which
Borrower is required to file a Form 10-Q under the Exchange Act) after the
end
of each of the first three fiscal quarters of each fiscal year, beginning with
the fiscal quarter ending September 30, 2005, (i) the consolidated
balance sheet of Borrower as of the end of such fiscal quarter and related
consolidated statements of income and cash flows for such fiscal quarter and
for
the then elapsed portion of the fiscal year, in comparative form with the
consolidated statements of income and cash flows for the comparable periods
in
the previous fiscal year, and notes thereto, all prepared in accordance with
Regulation S-X under the Securities Act and accompanied by a certificate of
a
Financial Officer stating that such financial statements fairly present, in
all
material respects, the consolidated financial condition, results of operations
and cash flows of Borrower as of the date and for the periods specified in
accordance with GAAP consistently applied, and on a basis consistent with
audited financial statements referred to in clause (a) of this Section,
subject to normal year-end audit adjustments, (ii) a management report
in a
form reasonably satisfactory to the Administrative Agent setting forth statement
of income items and Consolidated EBITDA of Borrower for such fiscal quarter
and
for the then elapsed portion of the fiscal year, showing variance, by dollar
amount and percentage, from amounts for the comparable periods in the previous
fiscal year and budgeted amounts, and (iii) a narrative report and
management’s discussion and analysis, in a form reasonably satisfactory to the
Administrative Agent, of the financial condition and results of operations
for
such fiscal quarter and the then elapsed portion of the fiscal year, as compared
to the comparable periods in the previous fiscal year and budgeted amounts
(it
being understood that the information required by clause (i) may be furnished
in
the form of a Form 10-Q);
(c) Perfection
Certificate Supplement and Officer’s Certificate.
Concurrently with the delivery of financial statements pursuant to Section 5.01(a),
deliver
to the Administrative Agent and the Collateral Agent a Perfection Certificate
Supplement and a certificate of a Financial Officer of Borrower certifying
that
all UCC 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 necessary to protect and perfect the security
interests and Liens 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);
(d) Financial
Officer’s Certificate.
(i) Concurrently with any delivery of financial statements under
Section 5.01(a)
or
(b),
a
Compliance Certificate (A) certifying that no Default has occurred or, if such
a
Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto, (B)
beginning with the fiscal quarter ending December 31, 2005, setting
forth
computations in reasonable detail satisfactory to the Administrative Agent
demonstrating compliance with the covenants contained in Sections 6.07(f)
and
6.10
and,
concurrently with any delivery of financial statements under Section 5.01(a)
above,
setting forth Borrower’s calculation of Excess Cash Flow and (C) showing a
reconciliation of Consolidated EBITDA to the net income set forth on the
statement of income; provided
that in
the event there has been any change in the accounting policies or reporting
practices of Borrower that are not required by GAAP, a reconciliation of
Borrower’s financial statements to such financial statements of Borrower as
would have been produced in accordance with GAAP as in effect on the date
hereof, shall be delivered to the Administrative Agent; and
(ii) concurrently with any delivery of financial statements under
Section 5.01(a)
above,
beginning with the fiscal year ending December 31, 2005, a report of
the
accounting firm opining on or certifying such financial statements stating
that
in the course of its regular audit of the financial statements of Borrower
and
its Subsidiaries, which audit was conducted in accordance with generally
accepted auditing standards, such accounting firm obtained no knowledge that
any
Default insofar as it relates to financial or accounting matters has occurred
or, if in the opinion of such accounting firm such a Default has occurred,
specifying the nature and extent thereof;
(e) Financial
Officer’s Certificate Regarding Collateral.
Concurrently with any delivery of financial statements under Section 5.01(a),
a
certificate of a Financial Officer setting forth the information required
pursuant to the Perfection Certificate Supplement or confirming that there
has
been no change in such information since the date of the Perfection Certificate
or latest Perfection Certificate Supplement;
(f) [Reserved];
(g) Management
Letters.
Promptly after the receipt thereof by any Company, a copy of any “management
letter” received by any such person from its certified public accountants and
the management’s responses thereto;
(h) Budgets.
Within
30 days after the beginning of each fiscal year, a budget for Borrower
in
form reasonably satisfactory to the Administrative Agent, but to include balance
sheets, statements of income and sources and uses of cash, for (i) each
month of such fiscal year prepared in detail and (ii) each fiscal year
thereafter, through and including the fiscal year in which the Final Maturity
Date occurs, prepared in summary form, in each case, with appropriate
presentation and discussion of the principal assumptions upon which such budgets
are based, accompanied by the statement of a Financial Officer of Borrower
to
the effect that the budget of Borrower is a reasonable estimate for the periods
covered thereby and, promptly when available, any significant revisions of
such
budget;
(i) Organization.
Concurrently with any delivery of financial statements under Section 5.01(a),
an
accurate organizational chart as required by Section 3.07(c),
or
confirmation that there are no changes to Schedule 10(a)
to the
Perfection Certificate;
(j) Organizational
Documents.
Promptly provide copies of any Organizational Documents that have been amended
or modified in accordance with the terms hereof and deliver a copy of any notice
of default given or received by any Company under any Organizational Document
within 15 days after such Company gives or receives such notice;
and
(k) Other
Information.
Promptly, from time to time, such other information regarding the operations,
business affairs and financial condition of any Company, or compliance with
the
terms of any Loan Document, as the Administrative Agent or any Lender may
reasonably request.
SECTION
5.02 Litigation
and Other Notices
.
Furnish
to the Administrative Agent and each Lender written notice of the following
promptly (and, in any event, (i) with respect to clause (a) below, within three
Business Days of the occurrence thereof and (ii) with respect to clauses (b),
(c), (d) and (e) below, within ten Business Days of the occurrence
thereof):
(a) any
Default, specifying the nature and extent thereof and the corrective action
(if
any) taken or proposed to be taken with respect thereto;
(b) the
service upon any Company, or receipt by any Company, of any written threat
or
notice of intention of any person to file or commence any action, suit,
litigation or proceeding, whether at law or in equity by or before any
Governmental Authority, (i) against any Company or any Affiliate thereof
that could reasonably be expected to result in a Material Adverse Effect or
(ii) with respect to any Loan Document;
(c) any
development that has resulted in, or could reasonably be expected to result
in a
Material Adverse Effect;
(d) the
occurrence of a Casualty Event; and
(e) the
incurrence of any material Lien (other than Permitted Collateral Liens) on,
or
claim asserted against, any of the Collateral.
SECTION
5.03 Existence;
Businesses and Properties
.
(a) Do
or
cause to be done all things necessary to preserve, renew and maintain in full
force and effect its legal existence, except as otherwise expressly permitted
under Section 6.05
or
Section 6.06
or, in
the case of any Subsidiary, where the failure to perform such obligations,
individually or in the aggregate, could not reasonably be expected to result
in
a Material Adverse Effect.
(b) Do
or
cause to be done all things necessary to obtain, preserve, renew, extend and
keep in full force and effect the rights, licenses, permits, privileges,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business, except where the failure to do so
or
cause to be done, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect; maintain and operate such
business in substantially the manner in which it is presently conducted and
operated, except as could not reasonably be expected to have a Material Adverse
Effect; comply with all applicable Requirements of Law (including any and all
zoning, building, Environmental Law, ordinance, code or approval or any building
permits or any restrictions of record or agreements affecting the Real Property)
and decrees and orders of any Governmental Authority, whether now in effect
or
hereafter enacted, except where the failure to comply, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect; pay and perform its obligations under all Leases and Transaction
Documents, except where such failure to pay or perform, individually or in
the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect; and at all times maintain, preserve and protect all property material
to
the conduct of such business and keep such property in good repair, working
order and condition (other than wear and tear occurring in the ordinary course
of business) and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may
be
properly conducted at all times; provided
that
nothing in this Section 5.03(b)
shall
prevent (i) sales of property, acquisitions, consolidations or mergers
by
or involving any Company in accordance with Section 6.05,
Section 6.06
or
Section
6.07;
(ii) the withdrawal by any Company of its qualification as a foreign
corporation in any jurisdiction where such withdrawal, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect; or (iii) the abandonment by any Company of any rights, franchises,
licenses, trademarks, trade names, copyrights or patents that such person
reasonably determines are not useful to its business or no longer commercially
desirable.
SECTION
5.04 Insurance
.
(a) Generally.
Keep
its insurable property adequately insured at all times by financially sound
and
reputable insurers; maintain such other insurance, to such extent and against
such risks as is customary with companies in the same or similar businesses
operating in the same or similar locations against such casualties and
contingencies and of such types and in such amounts with such deductibles as
is
customary in the case of similar businesses operating in the same or similar
locations, including (i) physical hazard insurance with coverage at
least
as broad as that provided under a “Causes of Loss—Special Form” policy
(so-called “all risk” basis), (ii) commercial general liability against
claims for bodily injury, death or property damage covering liability for claims
covered under an ISO (Insurance Services Office) Commercial General Liability
Form (ISO CG 00 01 form), (iii) explosion insurance in respect of any
boilers, machinery or similar apparatus constituting Collateral,
(iv) business interruption insurance, (v) worker’s compensation
insurance and such other insurance as may be required by any Requirement of
Law
and (vi) such other insurance against risks as the Administrative Agent
may
from time to time require (such policies to be in such form and amounts and
having such coverage as may be reasonably satisfactory to the Administrative
Agent and the Collateral Agent); provided
that
with respect to physical hazard insurance, neither the Collateral Agent nor
the
applicable Company shall agree to the adjustment of any claim thereunder without
the consent of the other (such consent not to be unreasonably withheld or
delayed); provided,
further,
that no
consent of any Company shall be required during an Event of
Default.
(b) Requirements
of Insurance.
All
such insurance shall (i) provide that no cancellation, material reduction
in amount or material change in coverage thereof shall be effective until at
least 30 days after receipt by the Collateral Agent of written notice
thereof, (ii) name the Collateral Agent as mortgagee (in the case of
property insurance) or additional insured on behalf of the Secured Parties
(in
the case of liability insurance) or loss payee (in the case of property
insurance), as applicable, (iii) if reasonably requested by the Collateral
Agent, include a breach of warranty clause and (iv) be reasonably
satisfactory in all other respects to the Collateral Agent.
(c) Notice
to Agents.
Notify
the Administrative Agent and the Collateral Agent immediately whenever any
separate insurance concurrent in form or contributing in the event of loss
with
that required to be maintained under this Section 5.04
is taken
out by any Company; and promptly deliver to the Administrative Agent and the
Collateral Agent a duplicate original copy of such policy or
policies.
(d) [Reserved].
(e) Broker’s
Report.
Deliver
to the Administrative Agent and the Collateral Agent and the Lenders a report
of
a reputable insurance broker with respect to such insurance and such
supplemental reports with respect thereto as the Administrative Agent or the
Collateral Agent may from time to time reasonably request.
(f) Mortgaged
Properties.
No Loan
Party that is an owner of Mortgaged Property shall take any action that is
reasonably likely to be the basis for termination, revocation or denial of
any
insurance coverage required to be maintained under such Loan Party’s respective
Mortgage or that could be the basis for a defense to any claim under any
Insurance Policy maintained in respect of the Premises, and each Loan Party
shall otherwise comply in all material respects with all Insurance Requirements
in respect of the Premises; provided,
however,
that
each Loan Party may, at its own expense and after written notice to the
Administrative Agent, (i) contest the applicability or enforceability
of
any such Insurance Requirements by appropriate legal proceedings, the
prosecution of which does not constitute a basis for cancellation or revocation
of any insurance coverage required under this Section 5.04
or
(ii) cause the Insurance Policy containing any such Insurance Requirement
to be replaced by a new policy complying with the provisions of this
Section 5.04.
SECTION
5.05 Obligations
and Taxes
.
(a) Payment
of Obligations.
Pay its
Indebtedness and other obligations promptly and in accordance with their terms
and pay and discharge promptly when due all Taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or in respect
of
its property, before the same shall become delinquent or in default, as well
as
all lawful claims for labor, services, materials and supplies or otherwise
that,
if unpaid, might give rise to a Lien other than a Permitted Lien upon such
properties or any part thereof; provided
that
such payment and discharge shall not be required with respect to any such
obligation, Tax, assessment, charge, levy or claim so long as (x)(i) the
validity or amount thereof shall be contested in good faith by appropriate
proceedings timely instituted and diligently conducted and the applicable
Company shall have set aside on its books adequate reserves or other appropriate
provisions with respect thereto in accordance with GAAP, (ii) such contest
operates to suspend collection of the contested obligation, Tax, assessment
or
charge and enforcement of a Lien other than a Permitted Lien and (iii) in
the case of Collateral, the applicable Company shall have otherwise complied
with the Contested Collateral Lien Conditions and (y) the failure to pay could
not reasonably be expected to result in a Material Adverse Effect.
(b) Filing
of Returns.
Timely
and correctly file all material Tax Returns required to be filed by it.
Withhold, collect and remit all Taxes that it is required to collect, withhold
or remit.
(c) Tax
Shelter Reporting.
Borrower does not intend to treat the Loans as being a “reportable transaction”
within the meaning of Treasury Regulation Section 1.6011-4. In the event
Borrower determines to take any action inconsistent with such intention, it
will
promptly notify the Administrative Agent thereof.
SECTION
5.06 Employee
Benefits
.
(a) Comply in all material respects with the applicable provisions of
ERISA
and the Code and (b) furnish to the Administrative Agent (x) as
soon
as possible after, and in any event within 5 days after any Responsible
Officer of any Company or any ERISA Affiliates of any Company knows or has
reason to know that, any ERISA Event has occurred that, alone or together with
any other ERISA Event could reasonably be expected to result in liability of
the
Companies or any of their ERISA Affiliates in an aggregate amount exceeding
$500,000 or the imposition of a Lien, a statement of a Financial Officer of
Borrower setting forth details as to such ERISA Event and the action, if any,
that the Companies propose to take with respect thereto, and (y) upon
request by the Administrative Agent, copies of (i) each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed by any
Company or any ERISA Affiliate with the Internal Revenue Service with respect
to
each Plan; (ii) the most recent actuarial valuation report for each
Plan;
(iii) all notices received by any Company or any ERISA Affiliate from
a
Multiemployer Plan sponsor or any governmental agency concerning an ERISA Event;
and (iv) such other documents or governmental reports or filings relating
to any Plan (or employee benefit plan sponsored or contributed to by any
Company) as the Administrative Agent shall reasonably request.
SECTION
5.07 Maintaining
Records; Access to Properties and Inspections; Annual
Meetings
.
(a) Keep
proper books of record and account in which full, true and correct entries
in
conformity with GAAP and all Requirements of Law are made of all dealings and
transactions in relation to its business and activities. Each Company will
permit any representatives designated by the Administrative Agent or any Lender
to visit and inspect the financial records and the property of such Company
at
reasonable times and upon reasonable notice as often as reasonably requested
and
to make extracts from and copies of such financial records, and permit any
representatives designated by the Administrative Agent or any Lender to discuss
the affairs, finances, accounts and condition of any Company with the officers
and employees thereof and advisors therefor (including independent
accountants).
(b) Within
150 days after the end of each fiscal year of the Companies, at the
request
of the Administrative Agent or Required Lenders, hold a meeting (at a mutually
agreeable location, venue and time or, at the option of the Administrative
Agent, by conference call, the costs of such venue or call to be paid by
Borrower) with all Lenders who choose to attend such meeting, at which meeting
shall be reviewed the financial results of the previous fiscal year and the
financial condition of the Companies and the budgets presented for the current
fiscal year of the Companies.
SECTION
5.08 Use
of Proceeds
.
Use the
proceeds of the Loans only for the purposes set forth in Section 3.12
and
request the issuance of Letters of Credit only for the purposes set forth in
the
definition of Commercial Letter of Credit or Standby Letter of Credit, as the
case may be, it being understood that on the Closing Date the proceeds of the
Traunche B Loan shall be deposited into an escrow account where such proceeds
shall be held pursuant to the Escrow Agreement.
SECTION
5.09 Compliance
with Environmental Laws; Environmental Reports
.
(a) Comply,
and cause all lessees and other persons occupying Real Property of any Company
to comply, in all material respects with all Environmental Laws and
Environmental Permits applicable to its operations and Real Property; obtain
and
renew all material Environmental Permits applicable to its operations and Real
Property; and conduct all Responses required by, and in accordance with,
Environmental Laws; provided
that no
Company shall be required to undertake any Response to the extent that its
obligation to do so is being contested in good faith and by proper proceedings
and appropriate reserves are being maintained with respect to such circumstances
in accordance with GAAP.
(b) If
a
Default caused by reason of a breach of Section 3.18
or
Section 5.09(a)
shall
have occurred and be continuing for more than 20 days without the Companies
commencing activities reasonably likely to cure such Default in accordance
with
Environmental Laws, at the written request of the Administrative Agent or the
Required Lenders through the Administrative Agent, provide to the Lenders within
45 days after such request, at the expense of Borrower, an environmental
assessment report regarding the matters which are the subject of such Default,
including, where appropriate, soil and/or groundwater sampling, prepared by
an
environmental consulting firm and, in the form and substance, reasonably
acceptable to the Administrative Agent and indicating the presence or absence
of
Hazardous Materials and the estimated cost of any compliance or Response to
address them.
SECTION
5.10 Interest
Rate Protection
.
No
later than the 30th day after the Closing Date, Borrower shall enter into,
and
for a minimum of three years thereafter maintain, Hedging Agreements with terms
and conditions acceptable to the Administrative Agent that result in at least
50% of the aggregate principal amount of Borrower’s Consolidated Indebtedness
other than Revolving Loans being effectively subject to a fixed or maximum
interest rate acceptable to the Administrative Agent.
SECTION
5.11 Additional
Collateral; Additional Guarantors
.
(a) Subject
to this Section 5.11,
with
respect to any property acquired after the Closing Date by any Loan Party that
is intended to be subject to the Lien created by any of the Security Documents
but is not so subject, promptly (and in any event within 30 days after
the
acquisition thereof) (i) execute and deliver to the Administrative Agent
and the Collateral Agent such amendments or supplements to the relevant Security
Documents or such other documents as the Administrative Agent or the Collateral
Agent shall deem necessary or advisable to grant to the Collateral Agent, for
its benefit and for the benefit of the other Secured Parties, a Lien on such
property subject to no Liens other than Permitted Collateral Liens, and
(ii) take all actions necessary to cause such Lien to be duly perfected
to
the extent required by such Security Document in accordance with all applicable
Requirements of Law, including the filing of financing statements in such
jurisdictions as may be reasonably requested by the Administrative Agent.
Borrower shall otherwise take such actions and execute and/or deliver to the
Collateral Agent such documents as the Administrative Agent or the Collateral
Agent shall require to confirm the validity, perfection and priority of the
Lien
of the Security Documents on such after-acquired properties.
(b) With
respect to any person, other than an Excluded Subsidiary, that is or becomes
a
Subsidiary after the Closing Date, promptly (and in any event within
30 days after such person becomes a Subsidiary) (i) deliver to
the
Collateral Agent the certificates, if any, representing all of the Equity
Interests of such Subsidiary, together with undated stock powers or other
appropriate instruments of transfer executed and delivered in blank by a duly
authorized officer of the holder(s) of such Equity Interests, and all
intercompany notes owing from such Subsidiary to any Loan Party together with
instruments of transfer executed and delivered in blank by a duly authorized
officer of such Loan Party and (ii) cause such new Subsidiary (A) to
execute a Joinder Agreement or such comparable documentation to become a
Subsidiary Guarantor and a joinder agreement to the applicable Security
Agreement, substantially in the form annexed thereto, and (B) to take
all
actions necessary or advisable in the opinion of the Administrative Agent or
the
Collateral Agent to cause the Lien created by the applicable Security Agreement
to be duly perfected to the extent required by such agreement in accordance
with
all applicable Requirements of Law, including the filing of financing statements
in such jurisdictions as may be reasonably requested by the Administrative
Agent
or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity
Interests required to be delivered to the Collateral Agent pursuant to
clause (i) of this Section 5.11(b)
shall
not include any Equity Interests of a Foreign Subsidiary created or acquired
after the Closing Date and (2) no Foreign Subsidiary shall be required
to
take the actions specified in clause (ii) of this Section 5.11(b),
if, in
the case of either clause (1) or (2), doing so would constitute an
investment of earnings in United States property under Section 956 (or
a
successor provision) of the Code, which investment would or could reasonably
be
expected to trigger a material increase in the net income of a United States
shareholder of such Subsidiary pursuant to Section 951 (or a successor
provision) of the Code, as reasonably determined by the Administrative Agent;
provided
that
this exception shall not apply to (A) Voting Stock of any Subsidiary
which
is a first-tier controlled foreign corporation (as defined in
Section 957(a) of the Code) representing 66% of the total voting power
of
all outstanding Voting Stock of such Subsidiary and (B) 100% of the
Equity
Interests not constituting Voting Stock of any such Subsidiary, except that
any
such Equity Interests constituting “stock entitled to vote” within the meaning
of Treasury Regulation Section 1.956-2(c)(2) shall be treated as Voting
Stock for purposes of this Section 5.11(b).
(c) Promptly
grant to the Collateral Agent, within 30 days of the acquisition thereof,
a
security interest in and Mortgage on each Real Property owned in fee by such
Loan Party as is acquired by such Loan Party after the Closing Date and that,
together with any improvements thereon, individually has a fair market value
of
at least $500,000, in each case, as additional security for the Secured
Obligations (unless the subject property is already mortgaged to a third party
to the extent permitted by Section 6.02).
Such
Mortgages shall be granted pursuant to documentation reasonably satisfactory
in
form and substance to the Administrative Agent and the Collateral Agent and
shall constitute valid and enforceable perfected Liens subject only to Permitted
Collateral Liens or other Liens acceptable to the Collateral Agent. The
Mortgages or instruments related thereto shall be duly recorded or filed in
such
manner and in such places as are required by law to establish, perfect, preserve
and protect the Liens in favor of the Collateral Agent required to be granted
pursuant to the Mortgages and all taxes, fees and other charges payable in
connection therewith shall be paid in full. Such Loan Party shall otherwise
take
such actions and execute and/or deliver to the Collateral Agent such documents
as the Administrative Agent or the Collateral Agent shall require to confirm
the
validity, perfection and priority of the Lien of any existing Mortgage or new
Mortgage against such after-acquired Real Property (including a Title Policy,
a
Survey and local counsel opinion (in form and substance reasonably satisfactory
to the Administrative Agent and the Collateral Agent) in respect of such
Mortgage).
(d) Borrower
may designate any Subsidiary acquired or formed after the Closing Date as a
Non-Guarantor Subsidiary by written notice to the Administrative Agent;
provided,
however,
that if
at any time any Non-Guarantor Subsidiary or group of Non-Guarantor Subsidiaries
in the aggregate (other than any Excluded Subsidiary or Foreign Subsidiary
that
is not required to take the actions specified in Section 5.11(b)(ii)
by
operation of the last sentence of Section 5.11(b))
not
otherwise subject to Section 5.11(b)
has
assets with either a book value or fair market value in excess of $1.0 million,
then Borrower shall, and shall cause one or more of such Subsidiaries to, comply
with Section 5.11(b)
within
the time frames set forth therein so that no Non-Guarantor Subsidiary or group
of Non-Guarantor Subsidiaries in the aggregate holds property having either
a
book value or fair market value in excess of $1.0 million.
SECTION
5.12 Security
Interests; Further Assurances
.
Promptly, upon the reasonable request of the Administrative Agent, the
Collateral Agent or any Lender, at Borrower’s expense, execute, acknowledge and
deliver, or cause the execution, acknowledgment and delivery of, and thereafter
register, file or record, or cause to be registered, filed or recorded, in
an
appropriate governmental office, any document or instrument supplemental to
or
confirmatory of the Security Documents or otherwise deemed by the Administrative
Agent or the Collateral Agent reasonably necessary or desirable for the
continued validity, perfection and priority of the Liens on the Collateral
covered thereby subject to no other Liens except as permitted by the applicable
Security Document, or obtain any consents or waivers as may be necessary or
appropriate in connection therewith. Deliver or cause to be delivered to the
Administrative Agent and the Collateral Agent from time to time such other
documentation, consents, authorizations, approvals and orders in form and
substance reasonably satisfactory to the Administrative Agent and the Collateral
Agent as the Administrative Agent and the Collateral Agent shall reasonably
deem
necessary to perfect or maintain the Liens on the Collateral pursuant to the
Security Documents. Upon the exercise by the Administrative Agent, the
Collateral Agent or any Lender of any power, right, privilege or remedy pursuant
to any Loan Document which requires any consent, approval, registration,
qualification or authorization of any Governmental Authority execute and deliver
all applications, certifications, instruments and other documents and papers
that the Administrative Agent, the Collateral Agent or such Lender may require.
If the Administrative Agent, the Collateral Agent or the Required Lenders
determine that they are required by a Requirement of Law to have appraisals
prepared in respect of the Real Property of any Loan Party constituting
Collateral, Borrower shall provide to the Administrative Agent appraisals that
satisfy the applicable requirements of the Real Estate Appraisal Reform
Amendments of FIRREA and are otherwise in form and substance satisfactory to
the
Administrative Agent and the Collateral Agent.
SECTION
5.13 Information
Regarding Collateral
.
Not
effect any change (i) in any Loan Party’s legal name, (ii) in the
location of any Loan Party’s chief executive office, (iii) in any Loan
Party’s identity or organizational structure, (iv) in any Loan Party’s
Federal Taxpayer Identification Number or organizational identification number,
if any, or (v) in any Loan Party’s jurisdiction of organization (in each
case, including by merging with or into any other entity, reorganizing,
dissolving, liquidating, reorganizing or organizing in any other jurisdiction),
until (A) it shall have given the Collateral Agent and the Administrative
Agent not less than 30 days’ prior written notice (in the form of an
Officers’ Certificate), or such lesser notice period agreed to by the Collateral
Agent, of its intention so to do, clearly describing such change and providing
such other information in connection therewith as the Collateral Agent or the
Administrative Agent may reasonably request and (B) it shall have taken
all
action reasonably satisfactory to the Collateral Agent to maintain the
perfection and priority of the security interest of the Collateral Agent for
the
benefit of the Secured Parties in the Collateral, if applicable. Each Loan
Party
agrees to promptly provide the Collateral Agent with certified Organizational
Documents reflecting any of the changes described in the preceding sentence.
Each Loan Party also agrees to promptly notify the Collateral Agent of any
change in the location of any office in which it maintains books or records
relating to Collateral owned by it or any office or facility at which Collateral
is located (including the establishment of any such new office or facility),
other than changes in location to a Mortgaged Property or a leased property
subject to a Landlord Access Agreement.
SECTION
5.14 Affirmative
Covenants with Respect to Leases
.
With
respect to each Lease, the respective Loan Party shall perform all the
obligations imposed upon the landlord under such Lease and enforce all of the
tenant’s obligations thereunder, except where the failure to so perform or
enforce could not reasonably be expected to result in a Property Material
Adverse Effect.
ARTICLE
VI
NEGATIVE
COVENANTS
Each
Loan
Party warrants, covenants and agrees with each Lender that, so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the principal of and interest on each Loan, all Fees and all other expenses
or amounts payable under any Loan Document have been paid in full and all
Letters of Credit have been cash collateralized, canceled or have expired and
all amounts drawn thereunder have been reimbursed in full, unless the Required
Lenders shall otherwise consent in writing, no Loan Party will, nor will they
cause or permit any Subsidiaries (other than any Subsidiary that is an Excluded
Subsidiary) to:
SECTION
6.01 Indebtedness
.
Incur,
create, assume or permit to exist, directly or indirectly, any Indebtedness,
except
(a) Indebtedness
incurred under this Agreement and the other Loan Documents;
(b) (i) Indebtedness
outstanding on the Closing Date and listed on Schedule 6.01(b)
and
(ii) refinancings or renewals thereof; provided
that
(A) any such refinancing Indebtedness is in an aggregate principal amount
not greater than the aggregate principal amount of the Indebtedness being
renewed or refinanced, plus
the
amount of any premiums required to be paid thereon and reasonable fees and
expenses associated therewith, (B) such refinancing Indebtedness has
a
later or equal final maturity and longer or equal weighted average life than
the
Indebtedness being renewed or refinanced and (C) the covenants, events
of
default, subordination and other provisions thereof (including any guarantees
thereof) shall be, in the aggregate, no less favorable to the Lenders than
those
contained in the Indebtedness being renewed or refinanced;
(c) Indebtedness
under Hedging Obligations with respect to interest rates, foreign currency
exchange rates or commodity prices, in each case not entered into for
speculative purposes; provided
that if
such Hedging Obligations relate to interest rates, (i) such Hedging
Obligations relate to payment obligations on Indebtedness otherwise permitted
to
be incurred by the Loan Documents and (ii) the notional principal amount
of
such Hedging Obligations at the time incurred does not exceed the principal
amount of the Indebtedness to which such Hedging Obligations
relate;
(d) Indebtedness
permitted by Section 6.04(f);
(e) Indebtedness
in respect of Purchase Money Obligations and Capital Lease Obligations, and
refinancings or renewals thereof, (i) with respect to vehicles provided
principally to sales representative employees in contract sales services in
the
ordinary course of business; provided
that the
amount of such Purchase Money Obligations and Capital Lease Obligations shall
not exceed the purchase price of such vehicles, and (ii) with respect to
Purchase Money Obligations and Capital Lease Obligations other than those
referred to in clause (i) hereof, in an aggregate amount not to exceed $30.0
million at any time outstanding;
(f) Indebtedness
incurred by Foreign Subsidiaries in an aggregate amount not to exceed $20.0
million at any time outstanding;
(g) Indebtedness
in respect of bid, performance or surety bonds, workers’ compensation claims,
self-insurance obligations and bankers acceptances issued for the account of
any
Company in the ordinary course of business, including guarantees or obligations
of any Company with respect to letters of credit supporting such bid,
performance or surety bonds, workers’ compensation claims, self-insurance
obligations and bankers acceptances (in each case other than for an obligation
for money borrowed), in an aggregate amount not to exceed $5.0 million at any
time outstanding;
(h) Contingent
Obligations of any Loan Party in respect of Indebtedness otherwise permitted
under this Section 6.01;
(i) Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of business;
provided,
however,
that
such Indebtedness is extinguished within five Business Days of
incurrence;
(j) Indebtedness
arising in connection with endorsement of instruments for deposit in the
ordinary course of business;
(k) unsecured
Indebtedness of any Company in an aggregate amount not to exceed $50.0 million
at any time outstanding; and
(l) Indebtedness
represented by the Purchase Price Notes and Holdback Note, if any (in each
case
as defined in the Acquisition Agreement).
SECTION
6.02 Liens
.
Create,
incur, assume or permit to exist, directly or indirectly, any Lien on any
property now owned or hereafter acquired by it or on any income or revenues
or
rights in respect of any thereof, except the following (collectively, the
“Permitted
Liens”):
(a) inchoate
Liens for taxes, assessments or governmental charges or levies not yet due
and
payable or delinquent and Liens for taxes, assessments or governmental charges
or levies, which (i) are being contested in good faith by appropriate
proceedings for which adequate reserves have been established in accordance
with
GAAP, which proceedings (or orders entered in connection with such proceedings)
have the effect of preventing the forfeiture or sale of the property subject
to
any such Lien, and (ii) in the case of any such charge or claim which
has
or may become a Lien against any of the Collateral, such Lien and the contest
thereof shall satisfy the Contested Collateral Lien Conditions;
(b) Liens
in
respect of property of any Company imposed by Requirements of Law, which were
incurred in the ordinary course of business and do not secure Indebtedness
for
borrowed money, such as carriers’, warehousemen’s, materialmen’s, landlords’,
workmen’s, suppliers’, repairmen’s and mechanics’ Liens and other similar Liens
arising in the ordinary course of business, and (i) which do not in
the
aggregate materially detract from the value of the property of the Companies,
taken as a whole, and do not materially impair the use thereof in the operation
of the business of the Companies, taken as a whole, (ii) which, if they
secure obligations that are then due and unpaid, are being contested in good
faith by appropriate proceedings for which adequate reserves have been
established in accordance with GAAP, which proceedings (or orders entered in
connection with such proceedings) have the effect of preventing the forfeiture
or sale of the property subject to any such Lien, and (iii) in the case
of
any such Lien which has or may become a Lien against any of the Collateral,
such
Lien and the contest thereof shall satisfy the Contested Collateral Lien
Conditions;
(c) any
Lien
in existence on the Closing Date and set forth on Schedule 6.02(c)
and any
Lien granted as a replacement or substitute therefor; provided
that any
such replacement or substitute Lien (i) except as permitted by Section 6.01(b)(ii)(A),
does
not secure an aggregate amount of Indebtedness, if any, greater than that
secured on the Closing Date and (ii) does not encumber any property
other
than the property subject thereto on the Closing Date (any such Lien, an
“Existing
Lien”);
(d) easements,
rights-of-way, restrictions (including zoning restrictions), covenants,
licenses, encroachments, protrusions and other similar charges or encumbrances,
and minor title deficiencies on or with respect to any Real Property, in each
case whether now or hereafter in existence, not (i) securing Indebtedness,
(ii) individually or in the aggregate materially impairing the value
or
marketability of such Real Property or (iii) individually or in the
aggregate materially interfering with the ordinary conduct of the business
of
the Companies at such Real Property;
(e) Liens
arising out of judgments, attachments or awards not resulting in a Default
and
in respect of which such Company shall in good faith be prosecuting an appeal
or
proceedings for review in respect of which there shall be secured a subsisting
stay of execution pending such appeal or proceedings and, in the case of any
such Lien which has or may become a Lien against any of the Collateral, such
Lien and the contest thereof shall satisfy the Contested Collateral Lien
Conditions;
(f) Liens
(other than any Lien imposed by ERISA) (x) imposed by Requirements of
Law
or deposits made in connection therewith in the ordinary course of business
in
connection with workers’ compensation, unemployment insurance and other types of
social security legislation, (y) incurred in the ordinary course of
business to secure the performance of tenders, statutory obligations (other
than
excise taxes), surety, stay, customs and appeal bonds, statutory bonds, bids,
leases, government contracts, trade contracts, performance and return of money
bonds and other similar obligations (exclusive of obligations for the payment
of
borrowed money) or (z) arising by virtue of deposits made in the ordinary
course of business to secure liability for premiums to insurance carriers;
provided
that
(i) with respect to clauses (x), (y) and (z) of this
paragraph (f), such Liens are for amounts not yet due and payable or
delinquent or, to the extent such amounts are so due and payable, such amounts
are being contested in good faith by appropriate proceedings for which adequate
reserves have been established in accordance with GAAP, which proceedings for
orders entered in connection with such proceedings have the effect of preventing
the forfeiture or sale of the property subject to any such Lien, (ii) to
the extent such Liens are not imposed by Requirements of Law, such Liens shall
in no event encumber any property other than cash and Cash Equivalents,
(iii) in the case of any such Lien against any of the Collateral, such
Lien
and the contest thereof shall satisfy the Contested Collateral Lien Conditions
and (iv) the aggregate amount of deposits at any time pursuant to
clause (y) and clause (z) of this paragraph (f) shall
not exceed
$500,000 in the aggregate;
(g) Leases
of
the properties of any Company, in each case entered into in the ordinary course
of such Company’s business so long as such Leases are subordinate in all
respects to the Liens granted and evidenced by the Security Documents and do
not, individually or in the aggregate, (i) interfere in any material
respect with the ordinary conduct of the business of any Company or
(ii) materially impair the use (for its intended purposes) or the value
of
the property subject thereto;
(h) Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by any Company in the ordinary
course of business in accordance with the past practices of such
Company;
(i) Liens
securing Indebtedness incurred pursuant to Section 6.01(e);
provided
that any
such Liens attach only to the property being financed pursuant to such
Indebtedness and do not encumber any other property of any Company;
(j) bankers’
Liens, rights of setoff and other similar Liens existing solely with respect
to
cash and Cash Equivalents on deposit in one or more accounts maintained by
any
Company, in each case granted in the ordinary course of business in favor of
the
bank or banks with which such accounts are maintained, securing amounts owing
to
such bank with respect to cash management and operating account arrangements,
including those involving pooled accounts and netting arrangements; provided
that,
unless such Liens are non-consensual and arise by operation of law, in no case
shall any such Liens secure (either directly or indirectly) the repayment of
any
Indebtedness;
(k) Liens
on
property of a person existing at the time such person is acquired or merged
with
or into or consolidated with any Company to the extent permitted hereunder
(and
not created in anticipation or contemplation thereof); provided
that
such Liens do not extend to property not subject to such Liens at the time
of
acquisition (other than improvements thereon) and are no more favorable to
the
lienholders than such existing Lien;
(l) Liens
granted pursuant to the Security Documents to secure the Secured
Obligations;
(m) licenses
of Intellectual Property granted by any Company in the ordinary course of
business and not interfering in any material respect with the ordinary conduct
of business of the Companies;
(n) the
filing of UCC financing statements solely as a precautionary measure in
connection with operating leases or consignment of goods;
(o) Liens
securing Indebtedness incurred pursuant to Section 6.01(f);
provided
that
(i) such Liens do not extend to, or encumber, property which constitutes
Collateral and (ii) such Liens extend only to the property (or Equity
Interests) of the Foreign Subsidiary incurring such Indebtedness;
and
(p) Liens
incurred in the ordinary course of business of any Company with respect to
obligations that do not in the aggregate exceed $10.0 million at any time
outstanding, so long as such Liens, to the extent covering any Collateral,
are
junior to the Liens granted pursuant to the Security Documents;
provided,
however,
that no
consensual Liens shall be permitted to exist, directly or indirectly, on any
Securities Collateral, other than Liens granted pursuant to the Security
Documents.
SECTION
6.03 Sale
and Leaseback Transactions
.
Enter
into any arrangement, directly or indirectly, with any person whereby it shall
sell or transfer any property, real or personal, 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 (a “Sale
and Leaseback Transaction”)
unless
(i) the sale of such property is permitted by Section 6.06
and
(ii) any Liens arising in connection with its use of such property are
permitted by Section 6.02.
SECTION
6.04 Investment,
Loan and Advances
.
Directly or indirectly, lend money or credit (by way of guarantee or otherwise)
or make advances to any person, or purchase or acquire any stock, bonds, notes,
debentures or other obligations or securities of, or any other interest in,
or
make any capital contribution to, any other person, or purchase or own a futures
contract or otherwise become liable for the purchase or sale of currency or
other commodities at a future date in the nature of a futures contract (all
of
the foregoing, collectively, “Investments”),
except that the following shall be permitted:
(a) the
Companies may consummate the Transactions in accordance with the provisions
of
the Transaction Documents;
(b) Investments
outstanding on the Closing Date and identified on Schedule 6.04(b);
(c) the
Companies may (i) acquire and hold accounts receivables owing to any
of
them if created or acquired in the ordinary course of business and payable
or
dischargeable in accordance with customary terms, (ii) acquire equity or debt
securities or instruments of account obligors in settlement of collection claims
in the ordinary course of business; provided
the
amount of such holdings in the aggregate shall not exceed $500,000 at any time,
(iii) invest in, acquire and hold cash and Cash Equivalents,
(iv) endorse negotiable instruments held for collection in the ordinary
course of business or (v) make lease, utility and other similar deposits
in
the ordinary course of business;
(d) Hedging
Obligations incurred pursuant to Section 6.01(c);
(e) loans
and
advances to directors, employees and officers of Borrower and the Subsidiaries
for bona
fide
business
purposes and to purchase Equity Interests of Borrower, in aggregate amount
not
to exceed $3.0 million at any time outstanding; provided
that no
loans in violation of Section 402 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act shall be permitted
hereunder;
(f) Investments
(i) by any Company in Borrower or any Subsidiary Guarantor and (ii) by
a Subsidiary that is not a Subsidiary Guarantor in any other Subsidiary that
is
not a Subsidiary Guarantor; provided
that any
Investment in the form of a loan or advance shall be evidenced by the
Intercompany Note and, in the case of a loan or advance by a Loan Party, pledged
by such Loan Party as Collateral pursuant to the Security
Documents;
(g) Investments
in securities of trade creditors or customers in the ordinary course of business
received upon foreclosure or pursuant to any plan of reorganization or
liquidation or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers;
(h) Investments
made by Borrower or any Subsidiary as a result of consideration received in
connection with an Asset Sale made in compliance with Section 6.06;
and
(i) (i)
Investments in Foreign Subsidiaries; provided
that
after giving effect to each such Investment the aggregate amount of all
Investments in Foreign Subsidiaries shall not exceed 10% of the total assets
of
Borrower and its Subsidiaries as of the date of the last annual or quarterly
balance sheet furnished to the Administrative Agent pursuant to Section
5.01,
determined on a consolidated basis in accordance with GAAP, and (ii) other
Investments in an aggregate amount not to exceed $20.0 million at any time
outstanding.
An
Investment shall be deemed to be outstanding to the extent not returned in
the
same form as the original Investment to Borrower or any Subsidiary
Guarantor.
SECTION
6.05 Mergers
and Consolidations
.
Wind
up, liquidate or dissolve its affairs or enter into any transaction of merger
or
consolidation (or agree to do any of the foregoing at any future time), except
that the following shall be permitted:
(a) the
Transactions as contemplated by the Transaction Documents;
(b) Asset
Sales in compliance with Section 6.06;
(c) acquisitions
in compliance with Section 6.07;
(d) any
Company may merge or consolidate with or into Borrower or any Subsidiary
Guarantor (as long as Borrower is the surviving person in the case of any merger
or consolidation involving Borrower and a Subsidiary Guarantor is the surviving
person and remains a Wholly Owned Subsidiary of Borrower in any other case);
provided
that the
Lien on and security interest in such property granted or to be granted in
favor
of the Collateral Agent under the Security Documents shall be maintained or
created in accordance with the provisions of Section 5.11
or
Section 5.12,
as
applicable; and
(e) any
Subsidiary may dissolve, liquidate or wind up its affairs at any time;
provided
that
such dissolution, liquidation or winding up, as applicable, could not reasonably
be expected to have a Material Adverse Effect.
To
the
extent the Required Lenders waive the provisions of this Section 6.05
with
respect to the sale of any Collateral, or any Collateral is sold as permitted
by
this Section 6.05,
such
Collateral (unless sold to a Company) shall be sold free and clear of the Liens
created by the Security Documents, and the Agents shall take all actions they
deem appropriate in order to effect the foregoing.
SECTION
6.06 Asset
Sales
.
Effect
any Asset Sale, or agree to effect any Asset Sale, except that the following
shall be permitted:
(a) disposition
of used, worn out, obsolete or surplus property by any Company in the ordinary
course of business and the abandonment or other disposition of Intellectual
Property that is, in the reasonable judgment of Borrower, no longer economically
practicable to maintain or useful in the conduct of the business of the
Companies taken as a whole;
(b) Asset
Sales; provided
that
with respect to any single Asset Sale or series of related Asset Sales pursuant
to this clause (b) for which the aggregate consideration received exceeds 5%
of
the total assets of Borrower and its Subsidiaries as of the date of the last
annual or quarterly balance sheet furnished to the Administrative Agent pursuant
to Section
5.01,
determined on a consolidated basis in accordance with GAAP, such Asset Sale
or
series of related Asset Sales shall be on terms and conditions reasonably
satisfactory to the Administrative Agent;
(c) leases
of
real or personal property in the ordinary course of business and in accordance
with the applicable Security Documents;
(d) the
Transactions as contemplated by the Transaction Documents;
(e) mergers
and consolidations in compliance with Section 6.05;
and
(f) Investments
in compliance with Section 6.04.
To
the
extent the Required Lenders waive the provisions of this Section 6.06
with
respect to the sale of any Collateral, or any Collateral is sold as permitted
by
this Section 6.06,
such
Collateral (unless sold to a Company) shall be sold free and clear of the Liens
created by the Security Documents, and the Agents shall take all actions they
deem appropriate in order to effect the foregoing.
SECTION
6.07 Acquisitions
.
Purchase or otherwise acquire (in one or a series of related transactions)
any
part of the property (whether tangible or intangible) of any person (or agree
to
do any of the foregoing at any future time), except that the following shall
be
permitted:
(a) Capital
Expenditures by Borrower and the Subsidiaries;
(b) purchases
and other acquisitions of inventory, materials, equipment, supplies, goods
and
services and other tangible and intangible property in the ordinary course
of
business;
(c) Investments
in compliance with Section 6.04;
(d) leases
of
real or personal property in the ordinary course of business and in accordance
with the applicable Security Documents;
(e) the
Transactions as contemplated by the Transaction Documents;
(f) Permitted
Acquisitions;
(g) mergers
and consolidations in compliance with Section 6.05;
and
(h) the
acquisition of assets pursuant to that certain (i) Asset Purchase Agreement
dated as of September 21, 2004 among Ventiv Health, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇ Holding
Corporation and the other parties thereto, (ii) Asset Purchase Agreement dated
as of November 19, 2004 among HHI, L.L.C., Ventiv Health, Inc. and the other
parties thereto, (iii) Asset Purchase Agreement dated as of August 5, 2005
among
Pharmaceutical Resource Solutions LLC, the members of Seller listed on the
signature pages thereto, Ventiv Health, Inc., and PRS Acquisition LLC, and
(iv)
Asset Purchase Agreement dated as of June 9, 2004 among Ventiv Health, Inc.,
FG
Acquisition L.L.C., Franklin Group, Inc. and Lincoln Ltd., Inc.;
provided
that,
except with respect to leased property described in clause (d) above, the Lien
on and security interest in such property granted or to be granted in favor
of
the Collateral Agent under the Security Documents shall be maintained or created
in accordance with the provisions of Section 5.11
or
Section 5.12,
as
applicable.
SECTION
6.08 Dividends
.
Authorize, declare or pay, directly or indirectly, any Dividends with respect
to
any Company, except dividends by any Company to Borrower or any Guarantor that
is a Wholly Owned Subsidiary of Borrower.
SECTION
6.09 Transactions
with Affiliates
.
Enter
into, directly or indirectly, any transaction or series of related transactions,
whether or not in the ordinary course of business, with any Affiliate of any
Company (other than between or among Borrower and one or more Subsidiary
Guarantors), other than on terms and conditions at least as favorable to such
Company as would reasonably be obtained by such Company at that time in a
comparable arm’s-length transaction with a person other than an Affiliate,
except that the following shall be permitted:
(a) Dividends
permitted by Section 6.08;
(b) Investments
permitted by Sections
6.04(e)
and
(f);
(c) reasonable
and customary director, officer and employee compensation (including bonuses)
and other benefits (including retirement, health, stock option and other benefit
plans) and indemnification arrangements, in each case approved by the Board
of
Directors of Borrower;
(d) transactions
with customers, clients, suppliers, joint venture partners or purchasers or
sellers of goods and services, in each case in the ordinary course of business
and otherwise not prohibited by the Loan Documents;
(e) sales
of
Qualified Capital Stock of Borrower not otherwise prohibited by the Loan
Documents and the granting of registration and other customary rights in
connection therewith;
(f) any
transaction with an Affiliate where the only consideration paid by any Loan
Party is Qualified Capital Stock of Borrower; and
(g) the
Transactions as contemplated by the Transaction Documents.
SECTION
6.10 Financial
Covenants
.
(a) Maximum
Total Leverage Ratio.
Permit
the Total Leverage Ratio, as of the end of any Test Period ending during any
period set forth in the table below, or as of any other date on which the Total
Leverage Ratio is to be tested hereunder, to exceed the ratio set forth opposite
such period in the table below:
|
Test
Period
|
Leverage
Ratio
|
|
Closing
Date - December
31, 2005
|
3.00
to 1.0
|
|
January
1, 2006 - March
31, 2006
|
3.00
to 1.0
|
|
April
1, 2006 - June
30, 2006
|
2.75
to 1.0
|
|
July
1, 2006 - September
30, 2006
|
2.75
to 1.0
|
|
October
1, 2006 - December
31, 2006
|
2.50
to 1.0
|
|
January
1, 2007 - March
31, 2007
|
2.50
to 1.0
|
|
April
1, 2007 - June
30, 2007
|
2.25
to 1.0
|
|
July
1, 2007 - September
30, 2007
|
2.00
to 1.0
|
|
October
1, 2007 - December
31, 2007
|
2.00
to 1.0
|
|
January
1, 2008 - March
31, 2008
|
1.75
to 1.0
|
|
April
1, 2008 - June
30, 2008
|
1.75
to 1.0
|
|
July
1, 2008 - September
30, 2008
|
1.75
to 1.0
|
|
October
1, 2008 - December
31, 2008
|
1.50
to 1.0
|
|
January
1, 2009 and thereafter
|
1.50
to 1.0
|
(b) [Reserved].
(c) Minimum
Interest Coverage Ratio.
Permit
the Consolidated Interest Coverage Ratio, for any Test Period ending during
any
period set forth in the table below, to be less than the ratio set forth
opposite such period in the table below:
|
Test
Period
|
Interest
Coverage
Ratio
|
|
Closing
Date - December
31, 2005
|
5.00
to 1.0
|
|
January
1, 2006 - March
31, 2006
|
5.00
to 1.0
|
|
April
1, 2006 - June
30, 2006
|
5.00
to 1.0
|
|
July
1, 2006 - September
30, 2006
|
5.00
to 1.0
|
|
October
1, 2006 - December
31, 2006
|
5.00
to 1.0
|
|
January
1, 2007 - March
31, 2007
|
5.00
to 1.0
|
|
April
1, 2007 - June
30, 2007
|
5.00
to 1.0
|
|
July
1, 2007 - September
30, 2007
|
5.00
to 1.0
|
|
October
1, 2007 - December
31, 2007
|
5.00
to 1.0
|
|
January
1, 2008 - March
31, 2008
|
5.00
to 1.0
|
|
April
1, 2008 - June
30, 2008
|
5.00
to 1.0
|
|
July
1, 2008 - September
30, 2008
|
5.00
to 1.0
|
|
October
1, 2008 - December
31, 2008
|
5.00
to 1.0
|
|
January
1, 2009 and thereafter
|
5.00
to 1.0
|
(d) Minimum
Fixed Charge Coverage Ratio.
Permit
the Consolidated Fixed Charge Coverage Ratio, for any Test Period ending during
any period in the table set forth below, to be less than the ratio set forth
opposite such period in the table below:
|
Test
Period
|
Fixed
Charge
Coverage
Ratio
|
|
Closing
Date - December
31, 2005
|
2.00
to 1.0
|
|
January
1, 2006 - March
31, 2006
|
2.00
to 1.0
|
|
April
1, 2006 - June
30, 2006
|
2.00
to 1.0
|
|
July
1, 2006 - September
30, 2006
|
2.00
to 1.0
|
|
October
1, 2006 - December
31, 2006
|
2.00
to 1.0
|
|
January
1, 2007 - March
31, 2007
|
2.00
to 1.0
|
|
April
1, 2007 - June
30, 2007
|
2.00
to 1.0
|
|
July
1, 2007 - September
30, 2007
|
2.00
to 1.0
|
|
October
1, 2007 - December
31, 2007
|
2.00
to 1.0
|
|
January
1, 2008 - March
31, 2008
|
2.00
to 1.0
|
|
April
1, 2008 - June
30, 2008
|
2.00
to 1.0
|
|
July
1, 2008 - September
30, 2008
|
2.00
to 1.0
|
|
October
1, 2008 - December
31, 2008
|
2.00
to 1.0
|
|
January
1, 2009 and thereafter
|
2.00
to 1.0
|
SECTION
6.11 Prepayments
of Other Indebtedness; Modifications of Organizational Documents and Other
Documents, etc.
Directly
or indirectly:
(a) make
(or
give any notice in respect thereof) any voluntary or optional payment or
prepayment on or redemption or acquisition for value of, or any prepayment
or
redemption as a result of any asset sale, change of control or similar event
of,
any Indebtedness outstanding under any Subordinated Indebtedness, except as
otherwise permitted by this Agreement;
(b) amend
or
modify, or permit the amendment or modification of, any provision of any
Transaction Document in any manner that is adverse in any material respect
to
the interests of the Lenders; or
(c) terminate,
amend, modify or change any of its Organizational Documents (including (x)
by
the filing or modification of any certificate of designation and (y) any
election to treat any Pledged Interests (as defined in the Security Agreement)
as a “security” under Section 8-103 of the UCC other than concurrently with the
delivery of certificates representing such Pledged Interests to the Collateral
Agent) or any agreement to which it is a party with respect to its Equity
Interests (including any stockholders’ agreement), or enter into any new
agreement with respect to its Equity Interests, other than any such
terminations, amendments, modifications or changes or such new agreements which
are not adverse in any material respect to the interests of the Lenders;
provided
that
Borrower may issue such Equity Interests, so long as such issuance is not
prohibited by Section 6.13
or any
other provision of this Agreement, and may amend its Organizational Documents
to
authorize any such Equity Interests.
SECTION
6.12 Limitation
on Certain Restrictions on Subsidiaries
.
Directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Subsidiary to
(a) pay dividends or make any other distributions on its capital stock
or
any other interest or participation in its profits owned by Borrower or any
Subsidiary, or pay any Indebtedness owed to Borrower or a Subsidiary,
(b) make loans or advances to Borrower or any Subsidiary or
(c) transfer any of its properties to Borrower or any Subsidiary, except
for such encumbrances or restrictions existing under or by reason of
(i) applicable Requirements of Law; (ii) this Agreement and the
other
Loan Documents; (iii) customary provisions restricting subletting or
assignment of any lease governing a leasehold interest of a Subsidiary;
(iv) customary provisions restricting assignment of any agreement entered
into by a Subsidiary in the ordinary course of business; (v) any holder
of
a Lien permitted by Section 6.02
restricting the transfer of the property subject thereto; (vi) customary
restrictions and conditions contained in any agreement relating to the sale
of
any property permitted under Section 6.06
pending
the consummation of such sale; (vii) any agreement in effect at the
time
such Subsidiary becomes a Subsidiary of Borrower, so long as such agreement
was
not entered into in connection with or in contemplation of such person becoming
a Subsidiary of Borrower; (viii) without affecting the Loan Parties’ obligations
under Section 5.11,
customary provisions in partnership agreements, limited liability company
organizational governance documents, asset sale and stock sale agreements and
other similar agreements entered into in the ordinary course of business that
restrict the transfer of ownership interests in such partnership, limited
liability company or similar person; (ix) restrictions on cash or other deposits
or net worth imposed by suppliers or landlords under contracts entered into
in
the ordinary course of business; (x) any instrument governing Indebtedness
assumed in connection with any Permitted Acquisition, which encumbrance or
restriction is not applicable to any person, or the properties or assets of
any
person, other than the person or the properties or assets of the person so
acquired; (xi) in the case of any joint venture which is not a Loan
Party
in respect of any matters referred to in clauses (b) and (c) above,
restrictions in such person’s Organizational Documents or pursuant to any joint
venture agreement or stockholders agreements solely to the extent of the Equity
Interests of or property held in the subject joint venture or other entity;
or
(xii) any encumbrances or restrictions imposed by any amendments or
refinancings that are otherwise permitted by the Loan Documents of the
contracts, instruments or obligations referred to in clause (vii) above;
provided
that
such amendments or refinancings are no more materially restrictive with respect
to such encumbrances and restrictions than those prior to such amendment or
refinancing.
SECTION
6.13 Limitation
on Issuance of Capital Stock
.
(a) With
respect to Borrower, issue any Equity Interest that is not Qualified Capital
Stock.
(b) With
respect to any Subsidiary of Borrower, issue any Equity Interest (including
by
way of sales of treasury stock) or any options or warrants to purchase, or
securities convertible into, any Equity Interest, except (i) for stock
splits, stock dividends and additional issuances of Equity Interests which
do
not decrease the percentage ownership of Borrower or any Subsidiaries in any
class of the Equity Interest of such Subsidiary; and (ii) Subsidiaries
of
Borrower formed after the Closing Date in accordance with Section 6.14
may
issue Equity Interests to Borrower or the Subsidiary of Borrower which is to
own
such Equity Interests and to third parties; provided
the
Investment of the Companies in such entity is permitted under Section
6.04(i).
All
Equity Interests issued in accordance with this Section 6.13(b)
shall,
to the extent required by Sections 5.11
and
5.12
or any
Security Agreement or if such Equity Interests are issued by Borrower, be
delivered to the Collateral Agent for pledge pursuant to the applicable Security
Agreement.
SECTION
6.14 Limitation
on Creation of Subsidiaries
.
Establish, create or acquire any additional Subsidiaries without the prior
written consent of the Required Lenders; provided
that,
without such consent, Borrower may (i) establish or create one or more
Wholly Owned Subsidiaries of Borrower, (ii) establish, create or acquire
one or more Subsidiaries in connection with an Investment made pursuant to
Section 6.04(f)
or
(i)
or (iii)
acquire one or more Subsidiaries in connection with a Permitted Acquisition,
so
long as, in each case, Section 5.11(b)
shall be
complied with.
SECTION
6.15 Business
.
Engage
(directly or indirectly) in any business other than those businesses in which
Borrower and its Subsidiaries are engaged on the Closing Date as described
in
the Confidential Information Memorandum (or, in the good faith judgment of
the
Board of Directors, which are substantially related thereto or are reasonable
extensions thereof).
SECTION
6.16 [Reserved]
.
SECTION
6.17 Fiscal
Year
.
Change
its fiscal year-end to a date other than December 31.
SECTION
6.18 [Reserved]
.
SECTION
6.19 No
Further Negative Pledge
.
Enter
into any agreement, instrument, deed or lease which prohibits or limits the
ability of any Loan Party to create, incur, assume or suffer to exist any Lien
upon any of their respective properties or revenues, whether now owned or
hereafter acquired, or which requires the grant of any security for an
obligation if security is granted for another obligation, except the following:
(1) this Agreement and the other Loan Documents; (2) covenants
in
documents creating Liens permitted by Section 6.02
prohibiting further Liens on the properties encumbered thereby; (3) any
other agreement that does not restrict in any manner (directly or indirectly)
Liens created pursuant to the Loan Documents on any Collateral securing the
Secured Obligations and does not require the direct or indirect granting of
any
Lien securing any Indebtedness or other obligation by virtue of the granting
of
Liens on or pledge of property of any Loan Party to secure the Secured
Obligations; and (4) any prohibition or limitation that (a) exists
pursuant to applicable Requirements of Law, (b) consists of customary
restrictions and conditions contained in any agreement relating to the sale
of
any property permitted under Section 6.06
pending
the consummation of such sale, (c) restricts subletting or assignment
of
any lease governing a leasehold interest of Borrower or a Subsidiary,
(d) exists in any agreement in effect at the time such Subsidiary becomes
a
Subsidiary of Borrower, so long as such agreement was not entered into in
contemplation of such person becoming a Subsidiary or (e) is imposed
by any
amendments or refinancings that are otherwise permitted by the Loan Documents
of
the contracts, instruments or obligations referred to in clause (4)(d);
provided
that
such amendments and refinancings are no more materially restrictive with respect
to such prohibitions and limitations than those prior to such amendment or
refinancing.
SECTION
6.20 Anti-Terrorism
Law; Anti-Money Laundering
.
(a) Directly
or indirectly, (i) knowingly conduct any business or engage in making
or
receiving any contribution of funds, goods or services to or for the benefit
of
any person described in Section 3.22,
(ii) knowingly deal in, or otherwise engage in any transaction relating
to,
any property or interests in property blocked pursuant to the Executive Order
or
any other Anti-Terrorism Law, or (iii) knowingly engage in or conspire
to
engage in any transaction that evades or avoids, or has the purpose of evading
or avoiding, or attempts to violate, any of the prohibitions set forth in any
Anti-Terrorism Law (and the Loan Parties shall deliver to the Lenders any
certification or other evidence requested from time to time by any Lender in
its
reasonable discretion, confirming the Loan Parties’ compliance with this
Section 6.20).
(b) Cause
or
permit any of the funds of such Loan Party that are used to repay the Loans
to
be derived from any unlawful activity with the result that the making of the
Loans would be in violation of any Requirement of Law.
SECTION
6.21 Embargoed
Person
.
Cause
or permit (a) any of the funds or properties of the Loan Parties that
are
used to repay the Loans to constitute property of, or be beneficially owned
directly or indirectly by, any person subject to sanctions or trade restrictions
under United States law (“Embargoed
Person”
or
“Embargoed
Persons”)
that
is identified on (1) the “List of Specially Designated Nationals and
Blocked Persons” maintained by OFAC and/or on any other similar list maintained
by OFAC pursuant to any authorizing statute including, but not limited to,
the
International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et
seq.,
The
Trading with the Enemy Act, 50 U.S.C. App. 1 et
seq.,
and
any Executive Order or Requirement of Law promulgated thereunder, with the
result that the investment in the Loan Parties (whether directly or indirectly)
is prohibited by a Requirement of Law, or the Loans made by the Lenders would
be
in violation of a Requirement of Law, or (2) the Executive Order, any
related enabling legislation or any other similar Executive Orders or
(b) any Embargoed Person to have any direct or indirect interest, of
any
nature whatsoever in the Loan Parties, with the result that the investment
in
the Loan Parties (whether directly or indirectly) is prohibited by a Requirement
of Law or the Loans are in violation of a Requirement of Law.
SECTION
6.22 Post-Closing
Matters
.
Fail to
perform the post-closing obligations within the specified timeframes set forth
in that certain letter agreement dated the date hereof among the parties to
this
Agreement.
ARTICLE
VII
GUARANTEE
SECTION
7.01 The
Guarantee
.
The
Guarantors hereby jointly and severally guarantee, as a primary obligor and
not
as a surety to each Secured Party and their respective successors and assigns,
the prompt payment in full when due (whether at stated maturity, by required
prepayment, declaration, demand, by acceleration or otherwise) of the principal
of and interest (including any interest, fees, costs or charges that would
accrue but for the provisions of the Title 11 of the United States Code after
any bankruptcy or insolvency petition under Title 11 of the United States Code)
on the Loans made by the Lenders to, and the Notes held by each Lender of,
Borrower, and all other Secured Obligations from time to time owing to the
Secured Parties by any Loan Party under any Loan Document or any Hedging
Agreement entered into with a counterparty that is a Secured Party, in each
case
strictly in accordance with the terms thereof (such obligations being herein
collectively called the “Guaranteed
Obligations”).
The
Guarantors hereby jointly and severally agree that if Borrower or other
Guarantor(s) shall fail to pay in full when due (whether at stated maturity,
by
acceleration or otherwise) any of the Guaranteed Obligations, the Guarantors
will promptly pay the same in cash, without any demand or notice whatsoever,
and
that in the case of any extension of time of payment or renewal of any of the
Guaranteed Obligations, the same will be promptly paid in full when due (whether
at extended maturity, by acceleration or otherwise) in accordance with the
terms
of such extension or renewal.
SECTION
7.02 Obligations
Unconditional
.
The
obligations of the Guarantors under Section 7.01
shall
constitute a guaranty of payment and to the fullest extent permitted by
applicable Requirements of Law, are absolute, irrevocable and unconditional,
joint and several, irrespective of the value, genuineness, validity, regularity
or enforceability of the Guaranteed Obligations of Borrower under this
Agreement, the Notes, if any, or any other agreement or instrument referred
to
herein or therein, or any substitution, release or exchange of any other
guarantee of or security for any of the Guaranteed Obligations, and,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or Guarantor
(except for payment in full). Without limiting the generality of the foregoing,
it is agreed that the occurrence of any one or more of the following shall
not
alter or impair the liability of the Guarantors hereunder which shall remain
absolute, irrevocable and unconditional under any and all circumstances as
described above:
(i) at
any
time or from time to time, without notice to the Guarantors, the time for any
performance of or compliance with any of the Guaranteed Obligations shall be
extended, or such performance or compliance shall be waived;
(ii) any
of
the acts mentioned in any of the provisions of this Agreement or the Notes,
if
any, or any other agreement or instrument referred to herein or therein shall
be
done or omitted;
(iii) the
maturity of any of the Guaranteed Obligations shall be accelerated, or any
of
the Guaranteed Obligations shall be amended in any respect, or any right under
the Loan Documents or any other agreement or instrument referred to herein
or
therein shall be amended or waived in any respect or any other guarantee of
any
of the Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with;
(iv) any
Lien
or security interest granted to, or in favor of, Issuing Bank or any Lender
or
Agent as security for any of the Guaranteed Obligations shall fail to be
perfected; or
(v) the
release of any other Guarantor pursuant to Section 7.09.
The
Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that any Secured Party
exhaust any right, power or remedy or proceed against Borrower under this
Agreement or the Notes, if any, or any other agreement or instrument referred
to
herein or therein, or against any other person under any other guarantee of,
or
security for, any of the Guaranteed Obligations. The Guarantors waive any and
all notice of the creation, renewal, extension, waiver, termination or accrual
of any of the Guaranteed Obligations and notice of or proof of reliance by
any
Secured Party upon this Guarantee or acceptance of this Guarantee, and the
Guaranteed Obligations, and any of them, shall conclusively be deemed to have
been created, contracted or incurred in reliance upon this Guarantee, and all
dealings between Borrower and the Secured Parties shall likewise be conclusively
presumed to have been had or consummated in reliance upon this Guarantee. This
Guarantee shall be construed as a continuing, absolute, irrevocable and
unconditional guarantee of payment without regard to any right of offset with
respect to the Guaranteed Obligations at any time or from time to time held
by
Secured Parties, and the obligations and liabilities of the Guarantors hereunder
shall not be conditioned or contingent upon the pursuit by the Secured Parties
or any other person at any time of any right or remedy against Borrower or
against any other person which may be or become liable in respect of all or
any
part of the Guaranteed Obligations or against any collateral security or
guarantee therefor or right of offset with respect thereto. This Guarantee
shall
remain in full force and effect and be binding in accordance with and to the
extent of its terms upon the Guarantors and the successors and assigns thereof,
and shall inure to the benefit of the Lenders, and their respective successors
and assigns, notwithstanding that from time to time during the term of this
Agreement there may be no Guaranteed Obligations outstanding.
SECTION
7.03 Reinstatement
.
The
obligations of the Guarantors under this Article VII
shall be
automatically reinstated if and to the extent that for any reason any payment
by
or on behalf of Borrower or other Loan Party in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of any
of
the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise.
SECTION
7.04 Subrogation;
Subordination
.
Each
Guarantor hereby agrees that until the indefeasible payment and satisfaction
in
full in cash of all Guaranteed Obligations and the expiration and termination
of
the Commitments of the Lenders under this Agreement it shall waive any claim
and
shall not exercise any right or remedy, direct or indirect, arising by reason
of
any performance by it of its guarantee in Section 7.01,
whether
by subrogation or otherwise, against Borrower or any other Guarantor of any
of
the Guaranteed Obligations or any security for any of the Guaranteed
Obligations. Any Indebtedness of any Loan Party permitted pursuant to
Section 6.01(d)
shall be
subordinated to such Loan Party’s Secured Obligations in the manner set forth in
the Intercompany Note evidencing such Indebtedness.
SECTION
7.05 Remedies
.
The
Guarantors jointly and severally agree that, as between the Guarantors and
the
Lenders, the obligations of Borrower under this Agreement and the Notes, if
any,
may be declared to be forthwith due and payable as provided in Section 8.01
(and
shall be deemed to have become automatically due and payable in the
circumstances provided in Section 8.01)
for
purposes of Section 7.01,
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable)
as
against Borrower and that, in the event of such declaration (or such obligations
being deemed to have become automatically due and payable), such obligations
(whether or not due and payable by Borrower) shall forthwith become due and
payable by the Guarantors for purposes of Section 7.01.
SECTION
7.06 Instrument
for the Payment of Money
.
Each
Guarantor hereby acknowledges that the guarantee in this Article VII
constitutes an instrument for the payment of money, and consents and agrees
that
any Lender or Agent, at its sole option, in the event of a dispute by such
Guarantor in the payment of any moneys due hereunder, shall have the right
to
bring a motion-action under New York CPLR Section 3213.
SECTION
7.07 Continuing
Guarantee
.
The
guarantee in this Article VII
is a
continuing guarantee of payment, and shall apply to all Guaranteed Obligations
whenever arising.
SECTION
7.08 General
Limitation on Guarantee Obligations
.
In any
action or proceeding involving any state corporate limited partnership or
limited liability company law, or any applicable state, federal or foreign
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Guarantor under Section 7.01
would
otherwise be held or determined to be void, voidable, invalid or unenforceable,
or subordinated to the claims of any other creditors, on account of the amount
of its liability under Section 7.01,
then,
notwithstanding any other provision to the contrary, the amount of such
liability shall, without any further action by such Guarantor, any Loan Party
or
any other person, be automatically limited and reduced to the highest amount
that is valid and enforceable and not subordinated to the claims of other
creditors as determined in such action or proceeding.
SECTION
7.09 Release
of Guarantors
.
If, in
compliance with the terms and provisions of the Loan Documents, all or
substantially all of the Equity Interests or property of any Guarantor are
sold
or otherwise transferred (a “Transferred
Guarantor”)
to a
person or persons, none of which is Borrower or a Subsidiary, such Transferred
Guarantor shall, upon the consummation of such sale or transfer, be released
from its obligations under this Agreement (including under Section 10.03
hereof)
and its obligations to pledge and grant any Collateral owned by it pursuant
to
any Security Document and, in the case of a sale of all or substantially all
of
the Equity Interests of the Transferred Guarantor, the pledge of such Equity
Interests to the Collateral Agent pursuant to the Security Agreements shall
be
released, and the Collateral Agent shall take such actions as are necessary
to
effect each release described in this Section 7.09
in
accordance with the relevant provisions of the Security Documents.
ARTICLE
VIII
EVENTS
OF DEFAULT
SECTION
8.01 Events
of Default
.
Upon
the occurrence and during the continu-ance of the following events
(“Events
of Default”):
(a) default
shall be made in the payment of any principal of any Loan or any Reimbursement
Obligation when and as the same shall become due and payable, whether at the
due
date thereof (including a Term Loan Repayment Date) or at a date fixed for
prepayment (whether voluntary or mandatory) thereof or by acceleration thereof
or otherwise;
(b) default
shall be made in the payment of any interest on any Loan or any Fee or any
other
amount (other than an amount referred to in paragraph (a) above) due
under
any Loan Document, when and as the same shall become due and payable, and such
default shall continue unremedied for a period of three Business
Days;
(c) any
representation or warranty made or deemed made in or in connection with any
Loan
Document or the borrowings or issuances of Letters of Credit hereunder, or
any
representation, warranty, statement or information contained in any report,
certificate, financial statement or other instrument furnished in connection
with or pursuant to any Loan Document, shall prove to have been false or
misleading in any material respect when so made, deemed made or
furnished;
(d) default
shall be made in the due observance or performance by any Company of any
covenant, condition or agreement contained in Section 5.02,
5.03(a)
or
5.08
or in
Article VI;
(e) default
shall be made in the due observance or performance by any Company of any
covenant, condition or agreement contained in any Loan Document (other than
those specified in paragraphs (a), (b) or (d) immediately above) and
such
default shall continue unremedied or shall not be waived for a period of
30 days after written notice thereof from the Administrative Agent or
any
Lender to Borrower;
(f) any
Company shall (i) fail to pay any principal or interest, regardless
of
amount, due in respect of any Indebtedness (other than the Obligations), when
and as the same shall become due and payable beyond any applicable grace period,
or (ii) fail to observe or perform any other term, covenant, condition
or
agreement contained in any agreement or instrument evidencing or governing
any
such Indebtedness if the effect of any failure referred to in this
clause (ii) is to cause, or to permit the holder or holders of such
Indebtedness or a trustee or other representative on its or their behalf (with
or without the giving of notice, the lapse of time or both) to cause, such
Indebtedness to become due prior to its stated maturity or become subject to
a
mandatory offer purchase by the obligor; provided
that it
shall not constitute an Event of Default pursuant to this paragraph
(f) unless the aggregate amount of all such Indebtedness referred to
in
clauses (i) and (ii) exceeds $10.0 million at any one time (provided
that, in
the case of Hedging Obligations, the amount counted for this purpose shall
be
the amount payable by all Companies if such Hedging Obligations were terminated
at such time);
(g) an
involuntary proceeding shall be commenced or an involuntary petition shall
be
filed in a court of competent jurisdiction seeking (i) relief in respect
of
any Company, or of a substantial part of the property of any Company, under
Title 11 of the U.S. Code, as now constituted or hereafter amended, or any
other
federal, state or foreign bankruptcy, insolvency, receivership or similar law;
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for any Company or for a substantial part of
the
property of any Company; or (iii) the winding-up or liquidation of any
Company; and 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;
(h) any
Company shall (i) voluntarily commence any proceeding or file any petition
seeking relief under Title 11 of the United States Code, as now constituted
or hereafter amended, or any other federal, state or foreign bankruptcy,
insolvency, receivership or similar law; (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any proceeding or
the
filing of any petition described in clause (g) above; (iii) apply
for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for any Company or for a substantial part of
the
property of any Company; (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; (vi) become unable,
admit in writing its inability or fail generally to pay its debts as they become
due; (vii) take any action for the purpose of effecting any of the
foregoing; or (viii) wind up or liquidate;
(i) one
or
more judgments, orders or decrees for the payment of money in an aggregate
amount in excess of $10.0 million shall be rendered against any Company or
any
combination thereof and the same shall remain undischarged, unvacated or
unbonded 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 levy upon properties of any Company to enforce any such
judgment;
(j) one
or
more ERISA Events, or terminations, withdrawals or noncompliance with applicable
law or plan terms with respect to Foreign Plans, shall have occurred that,
in
the opinion of the Required Lenders, when taken together with all other such
ERISA Events, and similar events with respect to Foreign Plans, could reasonably
be expected to result in a Material Adverse Effect or in the imposition of
a
Lien on any properties of a Company;
(k) any
security interest and Lien purported to be created by any Security Document
shall cease to be in full force and effect, or shall cease to give the
Collateral Agent, for the benefit of the Secured Parties, the Liens, rights,
powers and privileges purported to be created and granted under such Security
Document (including a perfected first priority security interest in and Lien
on
all of the Collateral thereunder (except as otherwise expressly provided in
such
Security Document)) in favor of the Collateral Agent, or shall be asserted
by
Borrower or any other Loan Party not to be a valid, perfected, first priority
(except as otherwise expressly provided in this Agreement or such Security
Document) security interest in or Lien on the Collateral covered
thereby;
(l) any
Loan
Document or any material provisions thereof shall at any time and for any reason
be declared by a court of competent jurisdiction to be null and void, or a
proceeding shall be commenced by any Loan Party or any other person, or by
any
Governmental Authority, seeking to establish the invalidity or unenforceability
thereof (exclusive of questions of interpretation of any provision thereof),
or
any Loan Party shall repudiate or deny any portion of its liability or
obligation for the Obligations;
(m) there
shall have occurred a Change in Control;
(n) the
conditions set forth in the Escrow Agreement for the release of the Escrowed
Funds (as defined in the Escrow Agreement) to or as directed by Borrower shall
not have been satisfied on or prior to October 7, 2005; or
(o) any
Company shall be prohibited or otherwise restrained from conducting the business
theretofore conducted by it in any manner that has or could reasonably be
expected to result in a Material Adverse Effect by virtue of any determination,
ruling, decision, decree or order of any court or Governmental Authority of
competent jurisdiction;
then,
and
in every such event (other than an event with respect to Borrower described
in
paragraph (g) or (h) above), 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 Borrower, take either or both of the
following actions, at the same or different times: (i) terminate forthwith
the Commitments and (ii) declare the Loans and Reimbursement Obligations
then outstanding to be forthwith due and payable in whole or in part, whereupon
the principal of the Loans and Reimbursement Obligations so declared to be
due
and payable, together with accrued interest thereon and any unpaid accrued
Fees
and all other Obligations of Borrower accrued hereunder and under any other
Loan
Document, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by Borrower and the Guarantors, anything contained herein or in any
other
Loan Document to the contrary notwithstanding; and in any event, with respect
to
Borrower described in paragraph (g) or (h) above, the Commitments shall
automatically terminate and the principal of the Loans and Reimbursement
Obligations then outstanding, together with accrued interest thereon and any
unpaid accrued Fees and all other Obligations of Borrower accrued hereunder
and
under any other Loan Document, shall automatically become due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by Borrower and the Guarantors, anything
contained herein or in any other Loan Document to the contrary
notwithstanding.
SECTION
8.02 Rescission
.
If at
any time after termination of the Commitments or acceleration of the maturity
of
the Loans, Borrower shall pay all arrears of interest and all payments on
account of principal of the Loans and Reimbursement Obligations owing by it
that
shall have become due otherwise than by acceleration (with interest on principal
and, to the extent permitted by law, on overdue interest, at the rates specified
herein) and all Defaults (other than non-payment of principal of and accrued
interest on the Loans due and payable solely by virtue of acceleration) shall
be
remedied or waived pursuant to Section 10.02,
then
upon the written consent of the Required Lenders and written notice to Borrower,
the termination of the Commitments or the acceleration and their consequences
may be rescinded and annulled; but such action shall not affect any subsequent
Default or impair any right or remedy consequent thereon. The provisions of
the
preceding sentence are intended merely to bind the Lenders and the Issuing
Bank
to a decision that may be made at the election of the Required Lenders, and
such
provisions are not intended to benefit Borrower and do not give Borrower the
right to require the Lenders to rescind or annul any acceleration hereunder,
even if the conditions set forth herein are met.
SECTION
8.03 Application
of Proceeds
.
The
proceeds received by the Collateral Agent in respect of any sale of, collection
from or other realization upon all or any part of the Collateral pursuant to
the
exercise by the Collateral Agent of its remedies shall be applied, in full
or in
part, together with any other sums then held by the Collateral Agent pursuant
to
this Agreement, promptly by the Collateral Agent as follows:
(a) First,
to the
payment of all reasonable costs and expenses, fees, commissions and taxes of
such sale, collection or other realization including compensation to the
Collateral Agent and its agents and counsel, and all expenses, liabilities
and
advances made or incurred by the Collateral Agent in connection therewith and
all amounts for which the Collateral Agent is entitled to indemnification
pursuant to the provisions of any Loan Document, together with interest on
each
such amount at the highest rate then in effect under this Agreement from and
after the date such amount is due, owing or unpaid until paid in
full;
(b) Second,
to the
payment of all other reasonable costs and expenses of such sale, collection
or
other realization including compensation to the other Secured Parties and their
agents and counsel and all costs, liabilities and advances made or incurred
by
the other Secured Parties in connection therewith, together with interest on
each such amount at the highest rate then in effect under this Agreement from
and after the date such amount is due, owing or unpaid until paid in
full;
(c) Third,
without
duplication of amounts applied pursuant to clauses (a) and (b) above,
to
the indefeasible payment in full in cash, pro
rata,
of
interest and other amounts constituting Obligations (other than principal and
Reimbursement Obligations) and any fees, premiums and scheduled periodic
payments due under Hedging Agreements constituting Secured Obligations and
any
interest accrued thereon, in each case equally and ratably in accordance with
the respective amounts thereof then due and owing;
(d) Fourth,
to the
indefeasible payment in full in cash, pro
rata,
of
principal amount of the Obligations (including Reimbursement Obligations) and
any breakage, termination or other payments under Hedging Agreements
constituting Secured Obligations and any interest accrued thereon;
and
(e) Fifth,
the
balance, if any, to the person lawfully entitled thereto (including the
applicable Loan Party or its successors or assigns) or as a court of competent
jurisdiction may direct.
In
the
event that any such proceeds are insufficient to pay in full the items described
in clauses (a) through (e) of this Section 8.03,
the
Loan Parties shall remain liable, jointly and severally, for any
deficiency.
ARTICLE
IX
THE
ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
SECTION
9.01 Appointment
and Authority
.
Each of
the Lenders and the Issuing Bank hereby irrevocably appoints UBS AG, Stamford
Branch, to act on its behalf as the Administrative Agent and the Collateral
Agent hereunder and under the other Loan Documents and authorizes such Agents
to
take such actions on its behalf and to exercise such powers as are delegated
to
such Agents by the terms hereof or thereof, together with such actions and
powers as are reasonably incidental thereto. The provisions of this Article
are
solely for the benefit of the Administrative Agent, the Collateral Agent, the
Lenders and the Issuing Bank, and neither Borrower nor any other Loan Party
shall have rights as a third party beneficiary of any of such
provisions.
SECTION
9.02 Rights
as a Lender
.
Each
person serving as an Agent hereunder shall have the same rights and powers
in
its capacity as a Lender as any other Lender and may exercise the same as though
it were not an Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include each
person serving as an Agent hereunder in its individual capacity. Such person
and
its Affiliates may accept deposits from, lend money to, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind
of business with Borrower or any Subsidiary or other Affiliate thereof as if
such person were not an Agent hereunder and without any duty to account therefor
to the Lenders.
SECTION
9.03 Exculpatory
Provisions
(a) .
No
Agent shall have any duties or obligations except those expressly set forth
herein and in the other Loan Documents. Without limiting the generality of
the
foregoing, no Agent:
(i) shall
be
subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;
(ii) shall
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby
or
by the other Loan Documents that such Agent is required to exercise as directed
in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan
Documents); provided
that
such Agent shall not be required to take any action that, in its judgment or
the
judgment of its counsel, may expose such Agent to liability or that is contrary
to any Loan Document or applicable Requirements of Law; and
(iii) shall,
except as expressly set forth herein and in the other Loan Documents, have
any
duty to disclose, and shall not be liable for the failure to disclose, any
information relating to Borrower or any of its Affiliates that is communicated
to or obtained by the person serving as such Agent or any of its Affiliates
in
any capacity.
No
Agent
shall be liable for any action taken or not taken by it (x) with the
consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as such Agent shall believe
in good faith shall be necessary, under the circumstances as provided in
Section 10.02)
or
(y) in the absence of its own gross negligence or willful misconduct.
No
Agent shall be deemed to have knowledge of any Default unless and until notice
describing such Default is given to such Agent by Borrower, a Lender or the
Issuing Bank.
No
Agent
shall be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection
with
this Agreement or any other Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or
in
connection herewith or therewith, (iii) the performance or observance
of
any of the covenants, agreements or other terms or conditions set forth herein
or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV
or
elsewhere herein, other than to confirm receipt of items expressly required
to
be delivered to such Agent. Without limiting the generality of the foregoing,
the use of the term “agent” in this Agreement with reference to the
Administrative Agent or the Collateral Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term us used merely as a matter
of
market custom and is intended to create or reflect only an administrative
relationship between independent contracting parties.
SECTION
9.04 Reliance
by Agent
.
Each
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 (including any electronic message, Internet or
intranet website posting or other distribution) believed by it to be genuine
and
to have been signed, sent or otherwise authenticated by the proper person.
Each
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper person, and shall not incur
any
liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, or the issuance of a Letter of Credit, that
by its terms must be fulfilled to the satisfaction of a Lender or the Issuing
Bank, the Administrative Agent may presume that such condition is satisfactory
to such Lender or the Issuing Bank unless the Administrative Agent shall have
received notice to the contrary from such Lender or the Issuing Bank prior
to
the making of such Loan or the issuance of such Letter of Credit. Each Agent
may
consult with legal counsel (who may be counsel for 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.
SECTION
9.05 Delegation
of Duties
.
Each
Agent may perform any and all of its duties and exercise its rights and powers
hereunder or under any other Loan Document by or through, or delegate any and
all such rights and powers to, any one or more sub-agents appointed by such
Agent. Each Agent and any such sub-agent may perform any and all of its duties
and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such
sub-agent and to the Related Parties of each 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
Agent.
SECTION
9.06 Resignation
of Agent
.
Each
Agent may at any time give notice of its resignation to the Lenders, the Issuing
Bank and Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with Borrower, to appoint a
successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives
notice of its resignation, then the retiring Agent may on behalf of the Lenders
and the Issuing Bank, appoint a successor Agent meeting the qualifications
set
forth above provided that if the Agent shall notify Borrower and the Lenders
that no qualifying person has accepted such appointment, then such resignation
shall nonetheless become effective in accordance with such notice and
(1) the retiring Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any
collateral security held by the Collateral Agent on behalf of the Lenders or
the
Issuing Bank under any of the Loan Documents, the retiring Collateral Agent
shall continue to hold such collateral security as nominee until such time
as a
successor Collateral Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through an
Agent
shall instead be made by or to each Lender and the Issuing Bank directly, until
such time as the Required Lenders appoint a successor Agent as provided for
above in this paragraph. Upon the acceptance of a successor’s appointment as
Agent hereunder, such successor shall succeed to and become vested with all
of
the rights, powers, privileges and duties of the retiring (or retired) Agent,
and the retiring Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this paragraph). The fees payable
by
Borrower to a successor Agent shall be the same as those payable to its
predecessor unless otherwise agreed between Borrower and such successor. After
the retiring Agent’s resignation hereunder and under the other Loan Documents,
the provisions of this Article IX
and
Section 10.03
shall
continue in effect for the benefit of such retiring 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 the retiring Agent was acting as
Agent.
SECTION
9.07 Non-Reliance
on Agent and Other Lenders
.
Each
Lender and the Issuing Bank acknowledges that it has, independently and without
reliance upon any 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 and the Issuing Bank also
acknowledges that it will, independently and without reliance upon any 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
any related agreement or any document furnished hereunder or
thereunder.
SECTION
9.08 No
Other Duties, etc
.
Anything herein to the contrary notwithstanding, none of the Bookmanager, Joint
Lead Arrangers, Syndication Agent or Documentation Agent listed on the cover
page hereof shall have any powers, duties or responsibilities under this
Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Administrative Agent, the Collateral Agent, a Lender or
the
Issuing Bank hereunder.
ARTICLE
X
MISCELLANEOUS
SECTION
10.01 Notices
.
(a) Generally.
Except
in the case of notices and other communications expressly permitted to be given
by telephone (and except as provided in paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows:
(i) if
to any
Loan Party, to Borrower at:
Ventiv
Health, Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Chief Executive Officer
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to:
Law
Office of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if
to the
Administrative Agent, the Collateral Agent, Swingline Lender or Issuing Bank,
to
it at:
UBS
AG,
Stamford Branch
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇.▇▇▇▇@▇▇▇.▇▇▇
(iii) if
to a
Lender, to it at its address (or telecopier number) set forth in its
Administrative Questionnaire; and
(iv) if
to the
Swingline Lender, to it at:
UBS
Loan
Finance LLC
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇.▇▇▇▇@▇▇▇.▇▇▇
Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in paragraph (b) below, shall be effective as provided in said
paragraph (b).
(b) Electronic
Communications.
Notices
and other communications to the Lenders and the Issuing Bank hereunder may
(subject to Section
10.01(d))
be
delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent; provided
that the
foregoing shall not apply to notices to any Lender or the Issuing Bank pursuant
to Article II
if such
Lender or the Issuing Bank, as applicable, has notified the Administrative
Agent
that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent, the Collateral Agent or Borrower may,
in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it
(including as set forth in Section
10.01(d));
provided
that
approval of such procedures may be limited to particular notices or
communications.
Unless
the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement); provided
that if
such notice or other communication is not sent during the normal business hours
of the recipient, such notice or communication shall be deemed to have been
sent
at the opening of business on the next business day for the recipient, and
(ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient
at
its e-mail address as described in the foregoing clause (i) of notification
that such notice or communication is available and identifying the website
address therefor.
(c) Change
of Address, etc.
Any
party hereto may change its address or telecopier number for notices and other
communications hereunder by notice to the other parties hereto.
(d) Posting.
Each
Loan Party hereby agrees that it will provide to the Administrative Agent all
information, documents and other materials that it is obligated to furnish
to
the Administrative Agent pursuant to this Agreement and any other Loan Document,
including all notices, requests, financial statements, financial and other
reports, certificates and other information materials, but excluding any such
communication that (i) relates to a request for a new, or a conversion
of
an existing, Borrowing or other extension of credit (including any election
of
an interest rate or interest period relating thereto), (ii) relates
to the
payment of any principal or other amount due under this Agreement prior to
the
scheduled date therefor, (iii) provides notice of any Default under
this
Agreement or (iv) is required to be delivered to satisfy any condition
precedent to the effectiveness of this Agreement and/or any borrowing or other
extension of credit hereunder (all such non-excluded communications,
collectively, the “Communications”),
by
transmitting the Communications in an electronic/soft medium in a format
reasonably acceptable to the Administrative Agent at or
at
such other e-mail address(es) provided to Borrower from time to time or in
such
other form, including hard copy delivery thereof, as the Administrative Agent
shall require. In addition, each Loan Party agrees to continue to provide the
Communications to the Administrative Agent in the manner specified in this
Agreement or any other Loan Document or in such other form, including hard
copy
delivery thereof, as the Administrative Agent shall require. Nothing in this
Section
10.01
shall
prejudice the right of the Agents, any Lender or any Loan Party to give any
notice or other communication pursuant to this Agreement or any other Loan
Document in any other manner specified in this Agreement or any other Loan
Document or as any such Agent shall require.
To
the
extent consented to by the Administrative Agent in writing from time to time,
Administrative Agent agrees that receipt of the Communications by the
Administrative Agent at its e-mail address(es) set forth above shall constitute
effective delivery of the Communications to the Administrative Agent for
purposes of the Loan Documents; provided
that
Borrower shall also deliver to the Administrative Agent an executed original
of
each Compliance Certificate required to be delivered hereunder.
Each
Loan
Party further agrees that Administrative Agent may make the Communications
available to the Lenders by posting the Communications on Intralinks or a
substantially similar electronic transmission system (the “Platform”).
The
Platform is provided “as is” and “as available.” The Agents do not warrant the
accuracy or completeness of the Communications, or the adequacy of the Platform
and expressly disclaim liability for errors or omissions in the communications.
No warranty of any kind, express, implied or statutory, including, without
limitation, any warranty of merchantability, fitness for a particular purpose,
non-infringement of third party rights or freedom from viruses or other code
defects, is made by any Agent in connection with the Communications or the
Platform. In no event shall the Administrative Agent or any of its Related
Parties have any liability to the Loan Parties, any Lender or any other person
for damages of any kind, including direct or indirect, special, incidental
or
consequential damages, losses or expenses (whether in tort, contract or
otherwise) arising out of any Loan Party’s or the Administrative Agent’s
transmission of communications through the Internet, except to the extent the
liability of such person is found in a final non-appealable judgment by a court
of competent jurisdiction to have resulted from such person’s gross negligence
or willful misconduct.
SECTION
10.02 Waivers;
Amendment
.
(a) Generally.
No
failure or delay by any Agent, the Issuing Bank 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 each Agent, the Issuing Bank
and the Lenders hereunder and under the other Loan Documents are cumulative
and
are not exclusive of any rights or 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 this Section
10.02,
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 or issuance of a Letter of Credit shall not
be
construed as a waiver of any Default, regardless of whether any Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default
at
the time. No notice or demand on Borrower in any case shall entitle Borrower
to
any other or further notice or demand in similar or other
circumstances.
(b) Required
Consents.
Subject
to Sections
10.02(c),
(d)
and
(e),
neither
this Agreement nor any other Loan Document nor any provision hereof or thereof
may be waived, amended, supplemented or modified except, in the case of this
Agreement, pursuant to an agreement or agreements in writing entered into by
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, the Collateral Agent (in the case of any Security
Document) and the Loan Party or Loan Parties that are party thereto, in each
case with the written consent of the Required Lenders; provided
that no
such agreement shall be effective if the effect thereof would:
(i) increase
the Commitment of any Lender without the written consent of such Lender (it
being understood that no amendment, modification, termination, waiver or consent
with respect to any condition precedent, covenant or Default shall constitute
an
increase in the Commitment of any Lender);
(ii) reduce
the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon (other than interest pursuant to Section
2.06(c)),
or
reduce any Fees payable hereunder, or change the form or currency of payment
of
any Obligation, without the written consent of each Lender directly affected
thereby (it being understood that any amendment or modification to the financial
definitions in this Agreement shall not constitute a reduction in the rate
of
interest for purposes of this clause (ii));
(iii) (A)
change the scheduled final maturity of any Loan, or any scheduled date of
payment of or the installment otherwise due on the principal amount of any
Term
Loan under Section 2.09,
(B)
postpone the date for payment of any Reimbursement Obligation or any interest
or
fees payable hereunder, (C) change the amount of, waive or excuse any such
payment (other than waiver of any increase in the interest rate pursuant to
Section
2.06(c)),
or (D)
postpone the scheduled date of expiration of any Commitment or any Letter of
Credit beyond the Revolving Maturity Date, in any case, without the written
consent of each Lender directly affected thereby;
(iv) increase
the maximum duration of Interest Periods hereunder, without the written consent
of each Lender directly affected thereby;
(v) permit
the assignment or delegation by Borrower of any of its rights or obligations
under any Loan Document, without the written consent of each
Lender;
(vi) release
Borrower, inChord Communications, Inc. or all or substantially all of the
Subsidiary Guarantors from their Guarantee (except as expressly provided in
Article VII),
or
limit their liability in respect of such Guarantee, without the written consent
of each Lender;
(vii) release
all or a substantial portion of the Collateral from the Liens of the Security
Documents or alter the relative priorities of the Secured Obligations entitled
to the Liens of the Security Documents, in each case without the written consent
of each Lender (it being understood that additional Classes of Loans pursuant
to
Section
2.19
or
consented to by the Required Lenders may be equally and ratably secured by
the
Collateral with the then existing Secured Obligations under the Security
Documents);
(viii) change
Section 2.14(b),
(c)
or
(d)
in a
manner that would alter the pro
rata
sharing
of payments or setoffs required thereby or any other provision in a manner
that
would alter the pro
rata
allocation among the Lenders of Loan disbursements, including the requirements
of Sections
2.02(a),
2.17(d)
and
2.18(d),
without
the written consent of each Lender directly affected thereby;
(ix) change
any provision of this Section 10.02(b)
or
Section
10.02(c)
or
(d),
without
the written consent of each Lender directly affected thereby (except for
additional restrictions on amendments or waivers for the benefit of Lenders
of
additional Classes of Loans pursuant to Section
2.19
or
consented to by the Required Lenders);
(x) change
the percentage set forth in the definition of “Required Lenders,”“Required Class
Lenders,”“Required Revolving Lenders” or any other provision of any Loan
Document (including this Section) 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), other than to increase such percentage or number or to give any
additional Lender or group of Lenders such right to waive, amend or modify
or
make any such determination or grant any such consent;
(xi) change
the application of prepayments as among or between Classes under Section 2.10(h),
without
the written consent of the Required Class Lenders of each Class that is being
allocated a lesser prepayment as a result thereof (it being understood that
the
Required Lenders may waive, in whole or in part, any prepayment so long as
the
application, as between Classes, of any portion of such prepayment that is
still
required to be made is not changed and, if additional Classes of Term Loans
under this Agreement pursuant to Section
2.19
or
consented to by the Required Lenders are made, such new Term Loans may be
included on a pro
rata basis
in
the various prepayments required pursuant to Section 2.10(h));
(xii) [Reserved];
(xiii) change
or
waive any provision of Article
X
as the
same applies to any Agent, or any other provision hereof as the same applies
to
the rights or obligations of any Agent, in each case without the written consent
of such Agent;
(xiv) change
or
waive any obligation of the Lenders relating to the issuance of or purchase
of
participations in Letters of Credit, without the written consent of the
Administrative Agent and the Issuing Bank;
(xv) change
or
waive any provision hereof relating to Swingline Loans (including the definition
of “Swingline Commitment”), without the written consent of the Swingline Lender;
or
(xvi) expressly
change or waive any condition precedent in Section 4.02
to any
Revolving Borrowing without the written consent of the Required Revolving
Lenders;
provided,
further,
that
any waiver, amendment or modification prior to the completion of the primary
syndication of the Commitments and Loans (as determined by the Bookmanager)
may
not be effected without the written consent of the Bookmanager.
(c) Collateral.
Without
the consent of any other person, the applicable Loan Party or Parties and the
Administrative Agent and/or Collateral Agent may (in its or their respective
sole discretion, or shall, to the extent required by any Loan Document) enter
into any amendment or waiver of any Loan Document, or enter into any new
agreement or instrument, to effect the granting, perfection, protection,
expansion or enhancement of any security interest in any Collateral or
additional property to become Collateral for the benefit of the Secured Parties,
or as required by local law to give effect to, or protect any security interest
for the benefit of the Secured Parties, in any property or so that the security
interests therein comply with applicable Requirements of Law.
(d) Dissenting
Lenders.
If, in
connection with any proposed change, waiver, discharge or termination of the
provisions of this Agreement as contemplated by Section 10.02(b),
the
consent of the Required Lenders is obtained but the consent of one or more
of
such other Lenders whose consent is required is not obtained, then Borrower
shall have the right to replace all, but not less than all, of such
non-consenting Lender or Lenders (so long as all non-consenting Lenders are
so
replaced) with one or more persons pursuant to Section 2.16
so long
as at the time of such replacement each such new Lender consents to the proposed
change, waiver, discharge or termination.
(e) Refinanced
Term Loans.
In
addition, notwithstanding the foregoing, this Agreement may be amended with
the
written consent of the Administrative Agent, Borrower and the Lenders providing
the relevant Replacement Term Loans (as defined below) to permit the refinancing
of all outstanding Tranche B Loans (“Refinanced
Term Loans”)
with a
replacement “B” term loan tranche hereunder which shall constitute Tranche B
Loans hereunder (“Replacement
Term Loans”);
provided
that
(a) the aggregate principal amount of Replacement Term Loans shall not
exceed the aggregate principal amount of Refinanced Term Loans, (b) the
Applicable Margin for Replacement Term Loans shall not be higher than the
Applicable Margin for Refinanced Term Loans, (c) the weighted average
life
to maturity of Replacement Term Loans shall not be shorter than the weighted
average life to maturity of Refinanced Term Loans at the time of such
refinancing and (d) all other terms applicable to Replacement Term Loans
shall be substantially identical to, or less favorable to the Lenders providing
Replacement Term Loans than, those applicable to Refinanced Term Loans, except
to the extent necessary to provide for covenants and other terms applicable
to
any period after the Final Maturity Date in effect immediately prior to such
refinancing.
SECTION
10.03 Expenses;
Indemnity; Damage Waiver
.
(a) Costs
and Expenses.
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred
by
the Administrative Agent, the Collateral Agent and their respective Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent and/or the Collateral Agent) in connection with the
syndication of the credit facilities provided for herein (including the
obtaining and maintaining of CUSIP numbers for the Loans), the preparation,
negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendment, amendment and restatement, modification
or waiver of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), including in connection
with post-closing searches to confirm that security filings and recordations
have been properly made, (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance, amendment, renewal
or extension of any Letter of Credit or any demand for payment thereunder,
(iii) all out-of-pocket expenses incurred by the Administrative Agent,
the
Collateral Agent, any Lender or the Issuing Bank (including the fees, charges
and disbursements of any counsel for the Administrative Agent, the Collateral
Agent, any Lender or the Issuing Bank), in connection with the enforcement
or
protection of its rights (A) in connection with this Agreement and the
other Loan Documents, including its rights under this Section
10.03,
or
(B) in connection with the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters
of
Credit and (iv) all documentary and similar taxes and charges in respect of
the
Loan Documents.
(b) Indemnification
by Borrower.
Borrower shall indemnify the Administrative Agent (and any sub-agent thereof),
the Collateral Agent (and any sub-agent thereof) each Lender and the Issuing
Bank, 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 reasonable fees,
charges and disbursements of any counsel for any Indemnitee) incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by Borrower
or any other Loan Party arising out of, in connection with, or as a result
of
(i) the execution or delivery of this Agreement, any other Loan Document,
or any amendment, amendment and restatement, modification or waiver of the
provisions hereof or thereof, or any agreement or instrument contemplated hereby
or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, (ii) any Loan or Letter of Credit or
the
use or proposed use of the proceeds therefrom (including any refusal by the
Issuing Bank to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (iii) any actual or alleged presence
or Release or threatened Release of Hazardous Materials on, at, under or from
any property owned, leased or operated by any Company at any time, or any
Environmental Claim related in any way to any Company, 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, whether
brought by a third party or by Borrower or any other Loan Party, 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 (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by Borrower or any
other
Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s
obligations hereunder or under any other Loan Document, if Borrower or such
Loan
Party has obtained a final and nonappealable judgment in its favor on such
claim
as determined by a court of competent jurisdiction.
(c) Reimbursement
by Lenders.
To the
extent that Borrower for any reason fails to indefeasibly pay any amount
required under paragraph (a) or (b) of this Section
10.03
to be
paid by it to the Administrative Agent (or any sub-agent thereof), the
Collateral Agent, the Issuing Bank, the Swingline Lender or any Related Party
of
any of the foregoing, each Lender severally agrees to pay to the Administrative
Agent (or any such sub-agent), the Collateral Agent (or any sub-agent thereof),
the Issuing Bank, the Swingline Lender or such Related Party, 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 any such sub-agent), the Collateral Agent (or any
sub-agent thereof), the Swingline Lender or the Issuing Bank in its capacity
as
such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent), the Collateral Agent (or any
sub-agent thereof), the Swingline Lender or Issuing Bank in connection with
such
capacity. The obligations of the Lenders under this paragraph (c) are
subject to the provisions of Section 2.14.
For
purposes hereof, a Lender’s “pro rata
share”
shall be determined based upon its share of the sum of the total Revolving
Exposure, outstanding Term Loans and unused Commitments at the
time.
(d) Waiver
of Consequential Damages, Etc.
To the
fullest extent permitted by applicable Requirements of Law, no Loan Party shall
assert, and each Loan Party 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, any other Loan Document or any
agreement or instrument contemplated hereby, the transactions contemplated
hereby or thereby, any Loan or Letter of Credit or the use of the proceeds
thereof. No Indemnitee referred to in paragraph (b) above shall be liable for
any damages arising from the use by unintended recipients of any information
or
other materials distributed by it through telecommunications, electronic or
other information transmission systems in connection with this Agreement or
the
other Loan Documents or the transactions contemplated hereby or
thereby.
(e) Payments.
All
amounts due under this Section shall be payable not later than 3 Business Days
after demand therefor.
SECTION
10.04 Successors
and Assigns.
(a) Successors
and Assigns Generally.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted hereby,
except that Borrower may not assign or otherwise transfer any of its rights
or
obligations hereunder without the prior written consent of the Administrative
Agent, the Collateral Agent, the Issuing Lender, the Swingline Lender and each
Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance
with
the provisions of paragraph (b) of this Section
10.04,
(ii) by way of participation in accordance with the provisions of
paragraph (d) of this Section
10.04
or
(iii) by way of pledge or assignment of a security interest subject
to the
restrictions of paragraph (f) of this Section (and any other attempted
assignment or transfer by Borrower or any Lender 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, Participants to the extent provided in
paragraph (d) of this Section and, to the extent expressly contemplated
hereby, the other Indemnitees) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Assignments
by Lenders.
Any
Lender may at any time assign to one or more Eligible 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 any assignment made in connection with the primary syndication
of
the Commitment and Loans by the Arranger or an assignment of the entire
remaining amount of the assigning Lender’s Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an Affiliate of
a
Lender or an Approved Fund with respect to a Lender, the aggregate amount of
the
Commitment (which for this purpose includes Loans outstanding thereunder) or,
if
the applicable Commitment is not then in effect, the principal outstanding
balance of the Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date) shall not
be
less than $5.0 million, in the case of any assignment in respect of Revolving
Loans and/or Revolving Commitments, or $1.0 million, in the case of any
assignment in respect of Term Loans and/or Term Loan Commitments, unless each
of
the Administrative Agent and, so long as no Default has occurred and is
continuing, Borrower otherwise consent (each such consent not to be unreasonably
withheld or delayed);
(ii) 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 with respect
to the Loan or the Commitment assigned, except that this clause (ii)
shall
not prohibit any Lender from assigning all or a portion of its rights and
obligations among separate tranches on a non-pro
rata
basis;
and
(iii) (A)
the
parties to each assignment shall execute and deliver to the Administrative
Agent
an Assignment and Assumption, together with a processing and recordation fee
of
$3,500, provided,
that no
such processing and recordation fee shall be required to be paid in connection
with any assignment by a Lender to an Approved Fund of such Lender, and (B)
the
Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
paragraph (c) of this Section
10.04,
from
and after the effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to
be a party hereto) but shall continue to be entitled to the benefits of
Sections 2.12,
2.13,
2.15
and
10.03
with
respect to facts and circumstances occurring prior to the effective date of
such
assignment. 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 purposes of this Agreement as a sale by such Lender of a participation
in
such rights and obligations in accordance with paragraph (d) of this
Section
10.04.
(c) Register.
The
Administrative Agent, acting solely for this purpose as an agent of Borrower,
shall maintain at one of its offices in Stamford, Connecticut a copy of each
Assignment and Assumption delivered to it and a register for the recordation
of
the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans and LC Disbursements owing to, each Lender pursuant to
the
terms hereof from time to time (the “Register”).
The
entries in the Register shall be conclusive, and Borrower, the Administrative
Agent, the Issuing Bank and the Lenders shall treat each person whose name
is
recorded in the Register pursuant to the terms hereof as a Lender hereunder
for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by Borrower, the Issuing Bank, the
Collateral Agent, the Swingline Lender and any Lender (with respect to its
own
interest only), at any reasonable time and from time to time upon reasonable
prior notice.
(d) Participations.
Any
Lender may at any time, without the consent of, or notice to, Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender sell
participations to any person (other than a natural person or Borrower or any
of
Borrower’s Affiliates or Subsidiaries) (each, a “Participant”)
in all
or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
provided
that
(i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) Borrower, the
Administrative Agent and the Lenders and Issuing Bank shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.
Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce the Loan
Documents and to approve any amendment, modification or waiver of any provision
of the Loan Documents; provided
that
such agreement or instrument may provide that such Lender will not, without
the
consent of the Participant, agree to any amendment, modification or waiver
described in clause (i), (ii) or (iii) of the first proviso to Section
10.02(b)
that
affects such Participant. Subject to the foregoing provisions of this paragraph
(d) and to paragraph (e) of this Section, Borrower agrees that each
Participant shall be entitled to the benefits of Sections
2.12,
2.13
and
2.15
(subject
to the requirements of those Sections) to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraph (b)
of
this Section. Subject to the foregoing provisions of this paragraph (d), to
the
extent permitted by law, each Participant also shall be entitled to the benefits
of Section 10.08
as
though it were a Lender, provided such Participant agrees to be subject to
Section
2.14
as
though it were a Lender.
(e) Limitations
on Participant Rights.
A
Participant shall not be entitled to receive any greater payment under
Sections
2.12,
2.13
and
2.15
than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation
to
such Participant is made with Borrower’s prior written consent (which shall not
be unreasonably withheld or delayed).
(f) Certain
Pledges.
Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided
that no
such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto. In the case of any Lender that is a fund that invests in bank loans,
such Lender may, without the consent of Borrower or the Administrative Agent,
collaterally assign or pledge all or any portion of its rights under this
Agreement, including the Loans and Notes or any other instrument evidencing
its
rights as a Lender under this Agreement, to any holder of, trustee for, or
any
other representative of holders of, obligations owed or securities issued,
by
such fund, as security for such obligations or securities.
SECTION
10.05 Survival
of Agreement
.
All
covenants, agreements, representa-tions 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 and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that the
Agents, the Issuing Bank or any Lender may have had notice or knowledge of
any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as
the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid or any Letter of Credit
is outstanding and so long as the Commitments have not expired or terminated.
The provisions of Sections 2.12, 2.14, 2.15 and Article X (other
than
Section 10.12) shall survive and remain in full force and effect regardless
of
the consummation of the transactions contemplated hereby, the repayment of
the
Loans, the payment of the Reimbursement Obligations, the expiration or
termination of the Letters of Credit and the Commitments or the termination
of
this Agreement or any provision hereof.
SECTION
10.06 Counterparts;
Integration; Effectiveness; Electronic Execution
.
(a) Counterparts;
Integration; Effectiveness.
This
Agreement may be executed in counterparts (and by different parties hereto
in
different counterparts), each of which shall constitute an original, but all
of
which when taken together shall constitute a single contract. This Agreement
and
the other Loan Documents, and any separate letter agreements with respect to
fees payable to the Administrative Agent, constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject
matter hereof. Except as provided in Section
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 that, when taken together, bear the signatures of each
of
the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
(b) Electronic
Execution of Assignments.
The
words “execution,”“signed,”“signature,” and words of like import in any
Assignment and Assumption shall be deemed to include electronic signatures
or
the keeping of records in electronic form, each of which shall be of the same
legal effect, validity or enforceability as a manually executed signature or
the
use of a paper-based recordkeeping system, as the case may be, to the extent
and
as provided for in any applicable Requirement of Law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based
on
the Uniform Electronic Transactions Act.
SECTION
10.07 Severability
.
Any
provision of this Agreement held to be invalid, illegal or unenforceable in
any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
SECTION
10.08 Right
of Setoff
.
If an
Event of Default shall have occurred and be continuing, each Lender, the Issuing
Bank, and each of their respective Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by applicable
Requirements of Law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final, in whatever currency) at any
time
held and other obligations (in whatever currency) at any time owing by such
Lender, the Issuing Bank or any such Affiliate to or for the credit or the
account of Borrower or any other Loan Party against any and all of the
obligations of Borrower or such Loan Party now or hereafter existing under
this
Agreement or any other Loan Document to such Lender or the Issuing Bank,
irrespective of whether or not such Lender or the Issuing Bank shall have made
any demand under this Agreement or any other Loan Document and although such
obligations of Borrower or such Loan Party may be contingent or unmatured or
are
owed to a branch or office of such Lender or the Issuing Bank different from
the
branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender, the Issuing Bank and their respective Affiliates under
this Section are in addition to other rights and remedies (including other
rights of setoff) that such Lender, the Issuing Bank or their respective
Affiliates may have. Each Lender and the Issuing Bank agrees to notify Borrower
and the Administrative Agent promptly after any such setoff and application;
provided
that the
failure to give such notice shall not affect the validity of such setoff and
application.
SECTION
10.09 Governing
Law; Jurisdiction; Consent to Service of Process
.
(a) Governing
Law.
This
Agreement shall be construed in accordance with and governed by the law of
the
State of New York, without regard to conflicts of law principles that would
require the application of the laws of another jurisdiction.
(b) Submission
to Jurisdiction.
Each
Loan Party 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 unconditionally agrees that all claims in respect of
any
such action or proceeding may be heard and determined in such New York State
court or, to the fullest extent permitted by applicable 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, the Issuing Bank or any Lender may otherwise have
to
bring any action or proceeding relating to this Agreement or any other Loan
Document against any Loan Party or its properties in the courts of any
jurisdiction.
(c) Waiver
of Venue.
Each
Loan Party hereby irrevocably and unconditionally waives, to the fullest extent
permitted by applicable Requirements of Law, 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 Section
10.09(b).
Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted
by
applicable Requirements of Law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Service
of Process.
Each
party hereto irrevocably consents to service of process in any action or
proceeding arising out of or relating to any Loan Document, in the manner
provided for notices (other than telecopier) in Section 10.01.
Nothing
in this Agreement or any other Loan Document will affect the right of any party
hereto to serve process in any other manner permitted by applicable Requirements
of Law.
SECTION
10.10 Waiver
of Jury Trial
.
Each
Loan Party hereby waives, to the fullest extent permitted by applicable
Requirements of 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 Agreement
by, among other things, the mutual waivers and certifications in this
Section.
SECTION
10.11 Headings
.
Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
SECTION
10.12 Treatment
of Certain Information; Confidentiality
.
Each of
the Administrative Agent, the Lenders and the Issuing Bank agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents,
advisors and other representatives (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 purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required
by
applicable Requirements of Law or by any subpoena or similar legal process,
(d) to any other party hereto, (e) in connection with the exercise
of
any remedies hereunder or under any other Loan Document or any 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
10.12,
to
(i) any assignee of or Participant in, or any prospective assignee of
or
Participant in, any of its rights or obligations under this Agreement,
(ii) any actual or prospective counterparty (or its advisors) to any
swap
or derivative transaction relating to Borrower and its obligations or (iii)
any
rating agency for the purpose of obtaining a credit rating applicable to any
Lender, (g) with the consent of Borrower or (h) to the extent
such
Information (x) becomes publicly available other than as a result of
a
breach of this Section or (y) becomes available to the Administrative
Agent, any Lender, the Issuing Bank or any of their respective Affiliates on
a
nonconfidential basis from a source other than Borrower. For purposes of this
Section, “Information”
means
all information received from Borrower or any of its Subsidiaries relating
to
Borrower or any of its Subsidiaries or any of their respective businesses,
other
than any such information that is available to the Administrative Agent, any
Lender or the Issuing Bank on a nonconfidential basis prior to disclosure by
Borrower or any of its Subsidiaries; provided
that,
in
the case of information received from Borrower or any of its Subsidiaries 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.
SECTION
10.13 USA
PATRIOT Act Notice
.
Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies Borrower that pursuant to the requirements of the USA PATRIOT Act
(Title III of Pub. L. 107-56 (signed into law October 26,
2001))
(the “Act”),
it is
required to obtain, verify and record information that identifies Borrower,
which information includes the name, address and tax identification number
of
Borrower and other information regarding Borrower that will allow such Lender
or
the Administrative Agent, as applicable, to identify Borrower in accordance
with
the Act. This notice is given in accordance with the requirements of the Act
and
is effective as to the Lenders and the Administrative Agent.
SECTION
10.14 Interest
Rate Limitation
.
Notwithstanding anything herein to the contrary, if at any time the interest
rate applicable to any Loan, together with all fees, charges and other amounts
which are treated as interest on such Loan under applicable Requirements of
Law
(collectively, the “Charges”),
shall
exceed the maximum lawful rate (the “Maximum
Rate”)
which
may be contracted for, charged, taken, received or reserved by the Lender
holding such Loan in accordance with applicable Requirements of Law, the rate
of
interest payable in respect of such Loan hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the
extent lawful, the interest and Charges that would have been payable in respect
of such Loan but were not payable as a result of the operation of this Section
shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or periods shall be increased (but not above the Maximum
Rate therefor) until such cumulated amount, together with interest thereon
at
the Federal Funds Effective Rate to the date of repayment, shall have been
received by such Lender.
SECTION
10.15 Lender
Addendum
.
Each
Lender to become a party to this Agreement on the date hereof shall do so by
delivering to the Administrative Agent a Lender Addendum duly executed by such
Lender, Borrower and the Administrative Agent.
SECTION
10.16 Obligations
Absolute
.
To the
fullest extent permitted by applicable Requirements of Law, all obligations
of
the Loan Parties hereunder shall be absolute and unconditional irrespective
of:
(a) any
bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
liquidation or the like of any Loan Party;
(b) any
lack
of validity or enforceability of any Loan Document or any other agreement or
instrument relating thereto against any Loan Party;
(c) any
change in the time, manner or place of payment of, or in any other term of,
all
or any of the Obligations, or any other amendment or waiver of or any consent
to
any departure from any Loan Document or any other agreement or instrument
relating thereto;
(d) any
exchange, release or non-perfection of any other Collateral, or any release
or
amendment
or waiver of or consent to any departure from any guarantee, for all or any
of
the Obligations;
(e) any
exercise or non-exercise, or any waiver of any right, remedy, power or privilege
under or in respect hereof or any Loan Document; or
(f) any
other
circumstances which might otherwise constitute a defense available to, or a
discharge of, the Loan Parties.
[Signature
Pages Follow]
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.
VENTIV
HEALTH, INC.
By: /s/
▇▇▇▇ ▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇
Title:
Chief Financial Officer and Secretary
HEALTH
PRODUCTS RESEARCH, INC.
By: /s/
▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇
Title: Vice
President and Secretary
▇▇▇▇▇
▇▇▇▇▇▇ HOLDING CORPORATION
By: /s/
▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇
Title: Vice
President and Secretary
PROMOTECH
RESEARCH ASSOCIATES, INC.
By: /s/
▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇
Title: Vice
President and Secretary
VENTIV
COMMERCIAL SERVICES, LLC
By: /s/
▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇
Title: Chief
Financial Officer, Vice President and
Secretary
FRANKLIN
PHARMA SERVICES, LLC
By: /s/
▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇
Title: Vice
President and Secretary
▇▇▇▇▇
▇▇▇▇▇▇ CONSULTING GROUP LLC
By: /s/
▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇
Title: Vice
President and Secretary
MEDFOCUS
LLC
By: /s/
▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇
Title: Vice
President and Secretary
▇▇▇▇▇
▇▇▇▇▇▇ ASSOCIATES LLC
By: /s/
▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇
Title: Vice
President and Secretary
HHI
CLINICAL & STATISTICAL RESEARCH SERVICES, L.L.C.
By: /s/
▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇
Title: Vice
President and Secretary
PHARMACEUTICAL
RESOURCE SOLUTIONS LLC
By: /s/
▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇
Title: Vice
President and Secretary
INCHORD
HOLDING CORPORATION
By: /s/
▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇
Title: Vice
President and Secretary
VENTIV
CLINICAL SOLUTIONS LLC
By: /s/
▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇
Title: Vice
President and Secretary
ANOVA
CLINICAL RESOURCES LLC
By: /s/
▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇
Title: Vice
President and Secretary
SCIENTIFIC
EXCHANGE, INC.
By: /s/
▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇
Title: Vice
President and Secretary
VENTIV
HEALTH, LLC
By: /s/
▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇
Title: Vice
President and Secretary
VENTIV
HEALTH (GEORGIA), INC.
By: /s/
▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇
Title: Vice
President and Secretary
MMD,
INC.
By: /s/
▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇
Title: Vice
President and Secretary
BLUE
DIESEL, LLC
By: /s/
▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇
▇. ▇’▇▇▇▇▇▇▇
Title:
Vice
President
CADENT
MEDICAL COMMUNICATIONS, LLC
By: /s/
▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇
▇. ▇’▇▇▇▇▇▇▇
Title:
Vice
President
CREATIVE
HEALTHCARE SOLUTIONS, LLC
By: /s/
▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇
▇. ▇’▇▇▇▇▇▇▇
Title:
Vice
President
▇▇▇▇▇▇,
▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇ ADVERTISING, LLC
By: /s/
▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇
▇. ▇’▇▇▇▇▇▇▇
Title:
Vice
President
INCHORD
COMMUNICATIONS, INC.
By: /s/
▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇
▇. ▇’▇▇▇▇▇▇▇
Title:
Chief
Financial Officer
INCHORD
GLOBAL, LLC
By: /s/
▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇
▇. ▇’▇▇▇▇▇▇▇
Title:
Vice
President
NAVICOR
GROUP, LLC
By: /s/
▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇
▇. ▇’▇▇▇▇▇▇▇
Title:
Vice
President
STONEFLY
COMMUNICATIONS GROUP, LLC
By: /s/
▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇
▇. ▇’▇▇▇▇▇▇▇
Title:
Vice
President
Y
BRAND
OUTLOOK, LLC
By: /s/
▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇
▇. ▇’▇▇▇▇▇▇▇
Title:
Vice
President
INCHORD
CHS HOLDINGS, INC.
By: /s/
▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇
▇. ▇’▇▇▇▇▇▇▇
Title:
Vice
President
S-
UBS
SECURITIES LLC, as Sole Bookmanager and Joint Lead Arranger
By: /s/
▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇
Title:
Director
By: /s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Director and Counsel, Region Americas Legal
UBS
AG,
STAMFORD BRANCH, as Issuing Bank, Administrative Agent and Collateral
Agent
By: /s/
▇▇▇▇▇▇▇ ▇. Saint
Name:
▇▇▇▇▇▇▇ ▇. Saint
Title:
Director, Banking Products Services US
By: /s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Associate Director, Banking Products Services US
UBS
AG,
LOAN FINANCE LLC, as Swingline Lender
By: /s/
▇▇▇▇▇▇▇ ▇. Saint
Name:
▇▇▇▇▇▇▇ ▇. Saint
Title:
Director, Banking Products Services US
By: /s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Associate Director, Banking Products Services US
S-
KEYBANK
N.A., as Documentation Agent
By: /s/
▇▇▇▇▇▇ ▇. Medida
Name:
▇▇▇▇▇▇ ▇. Medida
Title:
VP
& Sr. Relationship Manager
S-
BANC
OF
AMERICA SECURITIES LLC, as Joint Lead Arranger
By:
Name:
Title:
By:
Name:
Title:
BANK
OF
AMERICA, N.A., as Syndication Agent
By:
Name:
Title:
By:
Name:
Title:
S-
Annex
I
Amortization
Table
|
Date
|
Tranche
B Loan
Amount
|
|
December
31, 2005
|
$437,500
|
|
March
31, 2006
|
$437,500
|
|
June
30, 2006
|
$437,500
|
|
September
30, 2006
|
$437,500
|
|
December
31, 2006
|
$437,500
|
|
March
31, 2007
|
$437,500
|
|
June
30, 2007
|
$437,500
|
|
September
30, 2007
|
$437,500
|
|
December
31, 2007
|
$437,500
|
|
March
31, 2008
|
$437,500
|
|
June
30, 2008
|
$437,500
|
|
September
30, 2008
|
$437,500
|
|
December
31, 2008
|
$437,500
|
|
March
31, 2009
|
$437,500
|
|
June
30, 2009
|
$437,500
|
|
September
30, 2009
|
$437,500
|
|
December
31, 2009
|
$437,500
|
|
March
31, 2010
|
$437,500
|
|
June
30, 2010
|
$437,500
|
|
September
30, 2010
|
$437,500
|
|
December
31, 2010
|
$41,562,500
|
|
March
31, 2011
|
$41,562,500
|
|
June
30, 2011
|
$41,562,500
|
|
Tranche
B Maturity Date
|
$41,562,500
|