FINANCING AGREEMENT Dated as of June 18, 2007 by and among MAXXCOM INC., as Borrower, as Guarantors, THE LENDERS FROM TIME TO TIME PARTY HERETO, as Lenders, FORTRESS CREDIT CORP., as Collateral Agent, and WELLS FARGO FOOTHILL, INC., as Administrative...
EXHIBIT
10.1
Dated
as of June 18, 2007
by
and among
MAXXCOM
INC.,
as
Borrower,
MDC
PARTNERS INC. AND EACH OF ITS SUBSIDIARIES LISTED AS A GUARANTOR ON THE
SIGNATURE PAGES HERETO,
as
Guarantors,
THE
LENDERS FROM TIME TO TIME PARTY HERETO,
as
Lenders,
FORTRESS
CREDIT CORP.,
as
Collateral Agent,
and
▇▇▇▇▇
FARGO FOOTHILL, INC.,
as
Administrative Agent
Financing
Agreement, dated as of June 18, 2007, by and among MDC Partners Inc., a Canadian
corporation (the "Parent")
and
Maxxcom Inc., a Delaware corporation ("Maxxcom"
or the
"Borrower"),
each
Subsidiary of the Parent listed as a "Guarantor"
on the
signature pages hereto, the lenders from time to time party hereto (together
with their respective successors and permitted assigns, each
a
"Lender"
and
collectively, the "Lenders"),
Fortress
Credit Corp., a Delaware corporation
("Fortress"),
as
collateral agent for the Lenders (in such capacity, together with its successors
or assignees in such capacity, if any, the "Collateral
Agent"),
and
▇▇▇▇▇ Fargo Foothill, Inc., as administrative agent for the Lenders (in such
capacity, together with its successors or assignees in such capacity, if any,
the "Administrative
Agent"
and
together with the Collateral Agent, each an "Agent"
and
collectively, the "Agents").
RECITALS
The
Borrower has asked the Lenders to extend credit to the Borrower consisting
of
(a) a term loan A in the aggregate principal amount of $60,000,000, (b) a
delayed draw term loan B in the aggregate principal amount not to exceed
$70,000,000 and (c) a revolving credit facility in an aggregate principal
amount not to exceed $55,000,000 at any time outstanding, which will include
a
subfacility for the issuance of letters of credit. The proceeds of the term
loans and the loans made under the revolving credit facility shall be used
to
refinance existing indebtedness of the Parent and its Subsidiaries, for general
working capital purposes of the Borrower, to pay fees and expenses related
to
this Agreement, and to fund Permitted Acquisitions (as defined below) and Call
Center Capital Expenditures (as defined below), in each case subject to the
terms and conditions set forth herein. The letters of credit will be used for
general working capital purposes. The Lenders are severally, and not jointly,
willing to extend such credit to the Borrower subject to the terms and
conditions hereinafter set forth.
In
consideration of the premises and the covenants and agreements contained herein,
the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS;
CERTAIN TERMS
Section
1.01 Definitions.
As used
in this Agreement, the following terms shall have the respective meanings
indicated below, such meanings to be applicable equally to both the singular
and
plural forms of such terms:
"Accent
Marketing"
means
Accent Marketing Services, L.L.C., a Delaware limited liability company,
including its direct or indirect wholly-owned operating
Subsidiaries.
"Account"
means,
with respect to any Person, any and all rights of such Person to payment for
goods sold and/or services rendered, including accounts, general intangibles
and
any and all such rights evidenced by chattel paper, instruments or documents,
whether due or to become due and whether or not earned by performance, and
whether now or hereafter acquired or arising in the future, and any proceeds
arising therefrom or relating thereto.
-1-
"Account
Debtor"
means
each debtor, customer or obligor in any way obligated on or in connection with
any Account.
"ACH
Transactions"
means
any cash management or related services (including the Automated Clearing House
processing of electronic fund transfers through the direct Federal Reserve
Fedline system) provided by a Bank Product Provider for the account of the
Borrower or its Subsidiaries.
"Acquisition"
means
the acquisition of all or any portion of the Capital Stock of any Person or
all
or any portion of the assets of any Person.
"Act"
has the
meaning specified therefor in Section 12.21.
"Action"
has the
meaning specified therefor in 0.
"additional
amount"
has the
meaning specified therefor in 1)a)v).
"Additional
Permitted Investments"
means:
(a)
investments in non-cash consideration from clients in the form of Capital Stock
of such client, provided
that
upon the sale of such Capital Stock, the Net Cash Proceeds from such sale shall
be applied to prepayment of the Revolving Loans then outstanding, if any,
pursuant Section 2.05(b)(i),
(b) Hedging
Agreements entered into by any Loan Party in the ordinary course of its business
and not for speculative purposes;
(c) investments
consisting of security deposits with utilities and other similar Persons made
in
the ordinary course of business;
(d) investments
constituting a Guaranty permitted under Section 7.02(b);
(e) loans
and advances to employees (other than ▇▇▇▇▇ ▇▇▇▇▇) of any Loan Party in the
ordinary course of business (including, without limitation, for travel,
entertainment and relocation expenses) in an aggregate amount not exceeding
$2,000,000 at any one time outstanding;
(f) investments
received
in connection with the bankruptcy or reorganization of suppliers or customers
of
any
Loan Party and
in
settlement of delinquent obligations of, and other disputes with, customers
or
suppliers of any Loan Party arising in the ordinary course of
business;
(g) investments
of any Person in existence at the time such Person becomes a Subsidiary of the
Parent or any of its Subsidiaries; provided
that
such investments were not made in connection with or anticipation of such Person
becoming a Subsidiary of the Parent or any of its Subsidiaries, as applicable;
-2-
(h)
investments in Pegasus Partners III, L.P. after the Effective Date in an
aggregate amount not exceeding $350,000 and any investments in Pegasus Partners
III, L.P. existing on the Effective Date;
(i)
loans
and advances to employees (other than ▇▇▇▇▇ ▇▇▇▇▇) of any Loan Party for the
purpose of purchasing Capital Stock of such Loan Party or the parent of such
Loan Party so long as such Capital Stock is sold by a Loan Party and the
proceeds of such loans and advances are received by such Loan
Party;
(k)
other
investments in an aggregate amount not exceeding $1,000,000 at any one time
outstanding; and
(l)
any
investment constituting a Restricted Payment permitted under Section
7.02(h).
"Administrative
Agent"
has the
meaning specified therefor in the preamble hereto.
"Administrative
Agent's Account"
means
an account at a bank designated by the Administrative Agent from time to time
as
the account into which the Loan Parties shall make payments to the
Administrative Agent for the benefit of the Agents and the Lenders in accordance
with this Agreement and the other Loan Documents.
"Affiliate"
means,
with respect to any Person, any other Person that directly or indirectly through
one or more intermediaries, controls, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control" of a
Person means the power, directly or indirectly, either to (i) vote 10% or more
of the Capital Stock having ordinary voting power for the election of directors
of such Person or (ii) direct or cause the direction of the management and
policies of such Person whether by contract or otherwise. Notwithstanding
anything herein to the contrary, in no event shall any Agent or any Lender
be
considered an "Affiliate" of any Loan Party.
"After
Acquired Property"
has the
meaning specified therefor in 0.
"Agent"
has the
meaning specified therefor in the preamble hereto.
"Agreement"
means
this Financing Agreement, including all amendments, modifications and
supplements and any exhibits or schedules to any of the foregoing, and shall
refer to the Agreement as the same may be in effect at the time such reference
becomes operative.
"Applicable
Margin"
means,
with respect to the interest rate of a Term Loan or any portion thereof, the
applicable margin set forth below opposite the Senior Leverage Ratio as of
the
last day of the fiscal quarter most recently completed prior to the date of
determination, as determined based upon the Loan Parties' financial statements
and/or certifications delivered to Agents pursuant to Section 7.01(a)(iii)
and
(v) for such fiscal quarter, which determination shall be made by the Agents
and
shall be final and conclusive in the absence of any manifest error:
-3-
|
Senior
Leverage Ratio
|
Applicable
Margin
LIBOR
Rate Loans
|
Applicable
Margin
Reference
Rate Loans
|
|||||
|
I.
Greater than or equal to 2.75 to 1.00
|
4.75
|
%
|
2.35
|
%
|
|||
|
II.
Less than 2.75 to 1.00 but greater than or
equal to 1.75 to 1.00
|
4.25
|
%
|
1.85
|
%
|
|||
|
III.
Less than 1.75 to 1.00
|
3.75
|
%
|
1.35
|
%
|
|||
;
provided
that,
notwithstanding the foregoing, (i) until the earlier of (A) the date on which
the financial statements and/or certifications required under Section
7.01(a)(iii) and (v) are due and (B) the date such financial statements and/or
certifications are delivered, the then current Applicable Margin shall remain
in
effect, (ii) if the Loan Parties fail to deliver financial statements and/or
certifications to the Agents for any period in accordance with
Section 7.01(a)(iii) and (v), then until such financial statements and/or
certifications are delivered pursuant to such Section, the Applicable Margin
shall be the rate set forth in row I above and (iii) prior to September 18,
2007, the Applicable Margin shall be the rate set forth in row II above.
Notwithstanding
the foregoing, in the event that the audited annual financial statements of
the
Parent and its Subsidiaries required to be delivered by the Borrower pursuant
to
Section 7.01(a)(i)
for any
Fiscal Year shall indicate that the actual Leverage Ratio of the Parent and
its
Subsidiaries for any fiscal quarter in such Fiscal Year was higher or lower
than
as previously certified by the Borrower in the Compliance Certificate for such
fiscal quarter, then the Applicable Margin for such fiscal quarter shall be
adjusted retroactively (to the effective date of the determination of the
Applicable Margin that was based upon the delivery of such Compliance
Certificate) to reflect the correct Applicable Margin, and the Borrower shall
promptly make payments to or receive a future credit or payment from the Agents
and Lenders, as the case may be, to reflect such adjustment.
"Applicable
Prepayment Premium"
means,
as of any date of determination, an amount equal to (a) during the period of
time from and after the date of the execution and delivery of this Agreement
up
to the date that is the first anniversary of the Effective Date, 2.5% times
the
sum of (i) the Total Revolving Credit Commitment plus
(ii) the outstanding principal balance of the Term Loan on the date
immediately prior to the date of determination, (b) during the period of time
from and after the date that is the first anniversary of the Effective Date
up
to the date that is the second anniversary of the Effective Date, 1.5% times
the
sum of (i) the Total Revolving Credit Commitment plus
(ii) the outstanding principal balance of the Term Loan on the date
immediately prior to the date of determination, (c) during the period of
time from and after the date that is the second anniversary of the Effective
Date up to the date that is the third anniversary of the Effective Date, 1.0%
times the sum of (i) the Total Revolving Credit Commitment plus
(ii) the outstanding principal balance of the Term Loan on the date
immediately prior to the date of determination, and (d) thereafter,
zero.
"Assignment
and Acceptance"
means
an assignment and acceptance entered into by an assigning Lender and an
assignee, and accepted by the Collateral Agent, in accordance with 0
hereof
and substantially in the form of Exhibit H hereto or such other form
acceptable to the Collateral Agent.
-4-
"Authorized
Officer"
means,
with respect to any Person, the chief executive officer, chief financial
officer, chief accounting officer, president, executive vice president or vice
president, director - treasury operations and director - budgets and forecasting
of such Person.
"Availability"
means,
at any time, the difference between (i) the Total Revolving Credit Commitment
and (ii) the sum of (A) the aggregate outstanding principal amount of
all Revolving Loans, (B) all Letter of Credit Obligations, and (C)
all
Indebtedness of the Loan Parties in respect of existing Third Party Letters
of
Credit.
"Bank"
means
▇▇▇▇▇ Fargo Bank, National Association, its successors or any other bank
designated by the Administrative Agent to the Borrower from time to
time.
"Bankruptcy
Code"
means
(i) the
United States Bankruptcy Code (11 U.S.C. § ▇▇▇, ▇▇ ▇▇▇.),
(▇▇)
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ (▇▇▇▇▇▇) and (iii) the Companies' Creditors
Arrangement Act (Canada), in each case as applicable, as amended and as in
effect from time to time, and any successor statute.
"Bank
Product"
means
any financial accommodation extended to the Borrower or its Subsidiaries by
a
Bank Product Provider (other than pursuant to this Agreement) including:
(a) credit cards, (b) credit card processing services, (c) debit
cards, (d) purchase cards, (e) ACH Transactions, (f) cash
management, including controlled disbursement, accounts or services, or
(g) transactions under Hedge Agreements.
"Bank
Product Agreements"
means
those agreements entered into from time to time by the Borrower or its
Subsidiaries with a Bank Product Provider in connection with the obtaining
of
any of the Bank Products.
"Bank
Product Obligations"
means
all obligations, liabilities, contingent reimbursement obligations, fees, and
expenses owing by the Borrower or its Subsidiaries to any Bank Product Provider
pursuant to or evidenced by the Bank Product Agreements and irrespective of
whether for the payment of money, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising, and
including all such amounts that the Borrower or its Subsidiaries are obligated
to reimburse to any Agent or any Lender as a result of such Agent or such Lender
purchasing participations from, or executing indemnities or reimbursement
obligations to, a Bank Product Provider with respect to the Bank Products
provided by such Bank Product Provider to the Borrower or its
Subsidiaries.
"Bank
Product Provider"
means
▇▇▇▇▇ Fargo Bank, National Association or any of its Affiliates.
"Board"
means
the Board of Governors of the Federal Reserve System of the United
States.
-5-
"Board
of Directors"
means,
with respect to any Person, the board of directors (or comparable managers)
of
such Person or any committee thereof duly authorized to act on behalf of the
board.
"Borrower"
has the
meaning specified therefor in the preamble hereto.
"Business
Day"
means
any day other than a Saturday, Sunday or other day on which commercial banks
in
New York City are authorized or required to close, provided
that,
with respect to the borrowing, payment or continuation of, or determination
of
interest rate on, LIBOR Rate Loans, Business Day shall mean any Business Day
which dealings in Dollars may be carried on in the interbank eurodollar markets
in New York City and London.
"Call
Centers"
means
a
current
or new facility established by Accent Marketing for the purpose of providing
customer care services including but not limited to in-bound and outbound
customer care service, database marketing, analytical services related to
customer relationship management and other related activities.
"Call
Center Capital Expenditures"
has the
meaning specified therefor in Section 7.02(g).
"Canadian
Employee Benefit Laws"
means
the Canada Pension Plan Act (Canada), the Income Tax Act (Canada), the Pension
Benefits Standards Act, 1985 (Canada), the Canada Labor Code, the Employment
Insurance Act (Canada), the Pension Benefits Act (Ontario), the Workplace Safety
and Insurance ▇▇▇ ▇▇▇▇ (Ontario), the Occupational Health and Safety Act
(Ontario) and the Employment Standards Act, 2000 (Ontario) and any federal,
provincial or local counterparts or equivalents, in each case, as amended from
time to time.
"Canadian
Guarantor"
means
(a) Parent, and (b) each Subsidiary of the Parent organized under the laws
of
Canada or the laws of a province of Canada that (i) is listed as a "Guarantor"
on the signature pages hereto or (ii) guarantees, pursuant to Section
7.01(b) or otherwise, all or any part of the Obligations.
"Canadian
Pledge Agreements"
means
a
Pledge
Agreement made by a Canadian Guarantor in favor of the Collateral Agent, for
the
benefit of the Agents, the Lenders and the Bank Product Providers, in form
and
substance reasonably satisfactory to the Collateral Agent, securing all or
part
of the Obligations and delivered to the Collateral Agent.
"Canadian
Security Agreements"
means
a
General
Security Agreement made by a Canadian Guarantor in favor of the Collateral
Agent, for the benefit of the Agents, the Lenders and the Bank Product
Providers, in form and substance reasonably satisfactory to the Collateral
Agent, securing all or part of the Obligations and delivered to the Collateral
Agent.
"Capital
Expenditures"
means,
with respect to any Person for any period, the sum of the aggregate of all
expenditures by such Person and its Subsidiaries during such period that in
accordance with GAAP are or should be included in "property, plant and
equipment" or in a similar fixed asset account on its balance sheet, whether
such expenditures are paid in cash or financed and including all Capitalized
Lease Obligations paid or payable during such period; provided
that
Capital Expenditures shall not include, for
any
period, (i) Capital Expenditures required to be reported on the statement of
cash flows of Parent in accordance with U.S. GAAP to the extent such Capital
Expenditures have been funded during such period by a landlord of Parent or
any
other Loan Party with respect to any improvements to property leased from such
landlord by Parent or any other Loan Party, and (ii) Capital Expenditures funded
with the proceeds of the Louisiana IDB.
-6-
"Capital
Stock"
means
(i) with respect to any Person that is a corporation, any and all shares,
interests, participations or other equivalents (however designated and whether
or not voting) of corporate stock, and (ii) with respect to any Person that
is
not a corporation, any and all partnership, membership or other equity interests
of such Person.
"Capitalized
Lease"
means,
with respect to any Person, any lease of real or personal property by such
Person as lessee which is (i) required under GAAP to be capitalized on the
balance sheet of such Person or (ii) a transaction of a type commonly known
as a "synthetic lease" (i.e. a lease transaction that is treated as an
operating lease for accounting purposes but with respect to which payments
of
rent are intended to be treated as payments of principal and interest on a
loan
for Federal income tax purposes).
"Capitalized
Lease Obligations"
means,
with respect to any Person, obligations of such Person and its Subsidiaries
under Capitalized Leases, and, for purposes hereof, the amount of any such
obligation shall be the capitalized amount thereof determined in accordance
with
GAAP.
"Cash
and Cash Equivalents"
means
all cash and any presently existing or hereafter arising deposit account
balances, certificates of deposit or other financial instruments properly
classified as cash equivalents under GAAP.
"Cash
Management Accounts"
means
those bank accounts of each Loan Party (other than (i) accounts specifically
and
exclusively used for payroll, payroll taxes and other employee wage and benefit
payments to or for the benefit of any Loan Party's employees or (ii) any account
established and maintained by any Loan Party at the request of such Loan Party's
client as described in the proviso to the first sentence of Section 7.02(r))
maintained at one or more Cash Management Banks listed on Schedule
8.01.
"Cash
Management Bank"
has the
meaning specified therefor in xii)(a).
"Change
in Law"
has the
meaning specified therefor in 1)a)xi).
"Change
of Control"
means
each occurrence of any of the following:
(a) the
acquisition, directly or indirectly, by any person or group (within the meaning
of Section 13(d)(3) of the Exchange Act) of beneficial ownership of more
than 50% of the aggregate outstanding voting power of the Capital Stock of
the
Parent;
(b) during
any period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of the Parent (together with any
new
directors whose election by such Board of Directors or whose nomination for
election by the shareholders of the Parent was approved by a vote of at least
a
majority the directors of the Parent then still in office who were either
directors at the beginning of such period, or whose election or nomination
for
election was previously approved) cease for any reason to constitute a majority
of the Board of Directors of the Parent; or
-7-
(c) the
Parent shall cease to have beneficial ownership (as defined in Rule 13d-3
under the Exchange Act) of more than 50% of the aggregate voting power of the
Capital Stock of the Borrower, free and clear of all Liens (other than any
Liens
granted hereunder and Permitted Liens).
"Collateral"
means
all of the property and assets and all interests therein and proceeds thereof
now owned or hereafter acquired by any Person upon which a Lien is granted
or
purported to be granted by such Person as security for all or any part of the
Obligations.
"Collateral
Agent"
has the
meaning specified therefor in the preamble hereto.
"Collateral
Agent's Account"
means
an account at a bank designated by the Collateral Agent from time to time as
the
account into which the Loan Parties shall make payments to the Collateral Agent
for the benefit of the Agents and the Lenders in accordance with this Agreement
and the other Loan Documents.
"Collateral
Agent Advances"
has the
meaning specified therefor in 0.
"Collections"
means
all cash, checks, notes, instruments and other items of payment (including
insurance proceeds of cash sales, rental proceeds and tax refunds) of the Loan
Parties.
"Commitments"
means,
with respect to each Lender, such Lender's Revolving Credit Commitment, Term
Loan A Commitment and Term Loan B Commitment.
"Compliance
Certificate"
means
a
compliance certificate in substantially the form of Exhibit E
hereto,
"Concentration
Account"
means
the Cash Management Account of Maxxcom maintained at the Concentration Account
Bank, as disclosed to the Agents, into which cash received from the Cash
Management Banks is wired pursuant to xii).
"Concentration
Account Agreement"
means a
Control Agreement among the Parent, the Borrower, the Concentration Account
Bank
and the Collateral Agent, in form and substance reasonably satisfactory to
Agents, applicable to the Concentration Account.
"Concentration
Account Bank"
means
JPMorgan Chase Bank, N.A., or such other Person or Persons as the Borrower
(with
the prior written consent of the Collateral Agent, which consent will not be
unreasonably withheld) may designate from time to time.
"Consolidated
EBITDA"
means,
with respect to any Person for any period, the Consolidated Net Income of such
Person and its Subsidiaries for such period, plus
without
duplication, (i) the sum of the following amounts of such Person and its
Subsidiaries for such period and to the extent deducted in determining
Consolidated Net Income of such Person for such period: (a) Consolidated
Net Interest Expense, (b) income tax expense, (c) depreciation
expense, and (d) amortization expense, and (ii) to the extent not included
in determining Consolidated Net Income of such Person for such period, cash
distributions received from Minority-Owned Entities. In determining the
Consolidated EBITDA for a particular period, with respect to any Person acquired
or partly acquired (including pursuant to puts or step-ups) in a Permitted
Acquisition after the first day of such period, the Consolidated EBITDA
attributable to such Person shall be calculated on a pro forma basis to include
the financial performance of such Person from and after the first day of such
period until the date of such acquisition, as if such acquisition occurred
on
the first day of such period. Notwithstanding
the foregoing, for the fiscal quarters ending on September 30, 2006, December
31, 2006 and March 31, 2007, the Consolidated EBITDA of the Parent and its
Subsidiaries shall be increased or decreased, as the case may be, by the amounts
set forth on Schedule 1.01(C) hereto.
-8-
"Consolidated
Senior Indebtedness"
means,
with respect to any Person at any date, all Indebtedness of such Person,
determined on a consolidated basis in accordance with GAAP, but excluding (i)
all Subordinated Indebtedness (including the Convertible Subordinated Debt)
and
(ii) all Indebtedness in respect of Third Party Letters of Credit that are
backstopped by a Letter of Credit or fully cash collateralized.
"Consolidated
Net Income"
means,
with respect to any Person for any period, the result of the net income (loss)
of such Person for such period, determined in accordance with GAAP, but
excluding from the determination of Consolidated Net Income (without
duplication) (a) any extraordinary or non recurring gains or losses or
gains or losses from Dispositions, (b) restructuring charges, (c) any tax
refunds, net operating losses or other net tax benefits, (d) effects of
discontinued operations, (e) interest income (including interest
paid-in-kind), (f) non-cash impairment charges, (g) non-cash stock based
compensation expenses, and (h) other non-operating income and expenses
determined in accordance with GAAP (including, without limitation, the net
income (loss) from Minority-Owned Entities).
"Consolidated
Net Interest Expense"
means,
with respect to any Person for any period, the result of the gross interest
expense of such Person for such period determined in accordance with GAAP
(including, without limitation, interest expense paid to Affiliates of such
Person), less
(1) gains for such period on Hedging Agreements (to the extent not included
in interest income above and to the extent not deducted in the calculation
of
gross interest expense), plus
(2) the sum of (A) losses for such period on Hedging Agreements (to
the extent not included in gross interest expense) and (B) the upfront
costs or fees for such period associated with Hedging Agreements (to the extent
not included in gross interest expense), in each case, determined in accordance
with GAAP.
"Contingent
Obligation"
means,
with respect to any Person, any obligation of such Person guaranteeing or in
effect guarantees any Indebtedness, leases, dividends or other obligations
("primary obligations") of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, (i)
the
direct or indirect guaranty, endorsement (other than for collection or deposit
in the ordinary course of business), co-making, discounting with recourse or
sale with recourse by such Person of the obligation of a primary obligor,
(ii) the obligation to make take-or-pay or similar payments, if required,
regardless of nonperformance by any other party or parties to an agreement,
(iii) 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 (1) for the purchase or
payment of any such primary obligation or (2) 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, assets,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of
such primary obligation or (D) otherwise to assure or hold harmless the
holder of such primary obligation against loss in respect thereof. The amount
of
any Contingent Obligation shall be deemed to be an amount equal to the stated
or
determinable amount of the primary obligation with respect to which such
Contingent Obligation is made (or, if less, the maximum amount of such primary
obligation for which such Person may be liable pursuant to the terms of the
instrument evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability with respect thereto
(assuming such Person is required to perform thereunder), as determined by
such
Person in good faith.
-9-
"Contribution
Agreement"
means a
Contribution Agreement, in
form
and substance reasonably satisfactory to the Collateral Agent, by and among
certain Loan Parties.
"Control
Agreement"
means a
control agreement, in form and substance reasonably satisfactory to the Agents,
executed and delivered by the applicable Loan Party, Collateral Agent, and
a
securities intermediary with respect to a securities account or a bank with
respect to a deposit account.
"Convertible
Subordinated Debt"
means
the 8% Convertible Subordinated Debenture due 2010 of the Parent, issued
pursuant to the trust indenture dated as of June 28, 2005, between Parent,
as
issuer, and the trustee named therein.
"Crown"
means
the sovereign of the United Kingdom, Canada and the other realms and
territories, and head of the commonwealth.
"Current
Value"
has the
meaning specified therefor in 0.
"Default"
means
an event which, with the giving of notice or the lapse of time or both, would
constitute an Event of Default.
"Disbursement
Letter"
means a
disbursement letter, in
form
and substance reasonably satisfactory to the Agents, by and among the Loan
Parties, the Agents and the Lenders.
"Disposition"
means
any transaction, or series of related transactions, pursuant to which any Person
or any of its Subsidiaries sells, assigns, transfers or otherwise disposes
of
any property or assets (whether now owned or hereafter acquired) to any other
Person, in each case, whether or not the consideration therefor consists of
cash, securities or other assets owned by the acquiring Person, excluding
any
sales of Inventory in the ordinary course of business on ordinary business
terms.
"Dollar,"
"Dollars"
and the
symbol "$"
each
means lawful money of the United States of America.
-10-
"Earnout
Amount"
means
any amount which is owed by any Loan Party to any Person (or any Affiliate
of or
successor to such Person), which is (or, prior to a determination of the amount
thereof, was) a contingent obligation based on the financial performance of
such
Loan Party and which is, in substance, an amount owing on account of the unpaid
portion of the Purchase Price for (a) Capital Stock of any Loan Party, or (b)
assets comprising the business, or a portion thereof, of any Loan Party which,
in either case, was acquired from such Person or an Affiliate of such Person
by
any Loan Party.
"Effective
Date"
means
the date, on or before June 18, 2007, on which all of the conditions precedent
set forth in 0
are
satisfied or waived and the initial Loans are made and/or the initial Letters
of
Credit are issued.
"Employee
Plan"
means
an employee benefit plan (other than a Multiemployer Plan) covered by Title
IV
of ERISA or
a
Canadian pension or employee benefit plan, agreement or arrangement under
Canadian Employee Benefit Laws and
maintained (or that was maintained at any time during the six (6) calendar
years
preceding the date of any borrowing hereunder) for employees of any Loan Party
or any of its ERISA Affiliates
including any Canadian pension or employee benefit plan, agreement or
arrangement registered or maintained under Canadian Employee Benefit
Laws.
"Environmental
Actions"
means
any complaint, summons, citation, notice, directive, order, claim, litigation,
investigation, judicial or administrative proceeding, judgment, letter or other
communication from any Person or Governmental Authority involving violations
of
Environmental Laws or Releases of Hazardous Materials (i) from any assets,
properties or businesses owned or operated by any Loan Party or any of its
Subsidiaries or any predecessor in interest; (ii) from adjoining properties
or
businesses; or (iii) onto any facilities which received Hazardous Materials
generated by any Loan Party or any of its Subsidiaries or any predecessor in
interest.
"Environmental
Laws"
means
the Comprehensive Environmental Response, Compensation and Liability Act (42
U.S.C. § 9601, et seq.),
the
Hazardous Materials Transportation Act (49 U.S.C. § 1801, et seq.),
the
Resource Conservation and Recovery Act (42 U.S.C. § 6901, et seq.),
the
Federal Clean Water Act (33 U.S.C. § 1251 et seq.),
the
Clean Air Act (42 U.S.C. § 7401 et seq.),
the
Toxic Substances Control Act (15 U.S.C. § 2601 et seq.),
the
Occupational Safety and Health Act (29 U.S.C. § 651 et seq.),
the
Canadian Environmental Assessment Act, the Canadian Environmental Protection
Act, 1999, the Fisheries Act, the Transportation of Dangerous Goods Act, 1992,
the Environmental Assessment Act (Ontario), Ontario Water Resources Act, the
Environmental Protection Act (Ontario), the Occupational Health and Safety
Act
(Ontario), the
Environment Act (Nova Scotia), as
such
laws may be amended or otherwise modified from time to time, and any other
present or future federal, state, provincial, local or foreign statute,
ordinance, rule, regulation, order, judgment, decree, permit, license,
authorization or other binding determination of any Governmental Authority
imposing liability or establishing standards of conduct for protection of the
environment or health or safety or other government restrictions relating to
the
protection of the environment or health or safety or the Release, deposit or
migration of any Hazardous Materials into the environment.
-11-
"Environmental
Liabilities and Costs"
means
all liabilities, monetary obligations, Remedial Actions, losses, damages,
punitive damages, consequential damages, treble damages, costs and expenses
(including all reasonable fees, disbursements and expenses of counsel (for
purposes of expenses of Canadian counsel, on a solicitor-client basis), experts
and consultants and costs of investigations and feasibility studies), fines,
penalties, sanctions and interest incurred as a result of any claim or demand
by
any Governmental Authority or any third party, and which relate to any
environmental or health or safety condition or a Release of Hazardous Materials
from or onto (i) any property presently or formerly owned by any Loan Party
or any of its Subsidiaries or (ii) any facility which received Hazardous
Materials generated or disposed by any Loan Party or any of its
Subsidiaries.
"Environmental
Lien"
means
any Lien in favor of any Governmental Authority for Environmental Liabilities
and Costs.
"ERISA"
means
the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute of similar import, and regulations thereunder, in each case,
as in effect from time to time. References to sections of ERISA shall be
construed also to refer to any successor sections.
"ERISA
Affiliate"
means,
with respect to any Person, any trade or business (whether or not incorporated)
which is a member of a group of which such Person is a member and which would
be
deemed to be a "controlled group" within the meaning of Sections 414(b), (c),
(m) and (o) of the Internal Revenue Code.
"Event
of Default"
means
any of the events set forth in 0.
"Exchange
Act"
means
the Securities Exchange Act of 1934, as amended.
"Existing
Credit Facility"
means
the Credit Agreement dated as of September 22, 2004 between the Parent, Maxxcom
Inc., an Ontario corporation and Maxxcom, as borrowers, the lenders party
thereto, JPMorgan Chase Bank, as US administrative and collateral agent,
JPMorgan Chase Bank, as Canadian administrative agent, Bank of Montreal and
the
Toronto-Dominion Bank, as co-arrangers and co-syndication agents, the Bank
of
Nova Scotia, as documentation agent and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as sole
lead arranger and sole lead bookrunner, as amended from time to
time.
"Existing
Lenders"
means
the lenders party to the Existing Credit Facility.
"Extraordinary
Receipts"
means
any cash received by any Loan Party not in the ordinary course of business
(and
not consisting of proceeds described in 0
or
0
hereof),
with respect to (i) foreign, United States, state or local tax refunds, (ii)
pension plan reversions, (iii) proceeds of insurance, (iv) judgments, proceeds
of settlements or other consideration of any kind in connection with any cause
of action, (v) condemnation awards (and payments in lieu thereof), (vi)
indemnity payments, (vii) any purchase price adjustment received in
connection with any purchase agreement, and (viii) any other cash received
by
any Loan Party not in the ordinary course of business during the term of this
Agreement, provided
that,
Extraordinary Receipts shall not include any cash received by any Loan Party
from the proceeds of insurance or indemnity or damage payments to the extent
that such proceeds, awards or payments are received by such Loan Party in
respect of any third party claim against such Loan Party, and applied to pay
(or
to reimburse prior payment of) such claim and the costs and expenses of such
Loan Party, with respect thereto.
-12-
"Facility"
means
each parcel of real property listed on Schedule 1.01(B) hereto, including,
without limitation, the land on which such facility is located, all buildings
and other improvements thereon, all fixtures located at or used in connection
with such facility, all whether now or hereafter existing.
"Federal
Funds Rate"
means,
for any period, a fluctuating interest rate per annum equal to, for each day
during such period, the weighted average of the rates on overnight Federal
funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published 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
which
is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee
Letter"
means
that certain fee letter, dated as of June 18, 2007, between the Borrower and
the
Agents, in form and substance satisfactory to the Agents.
"Final
Maturity Date"
means
June 18, 2012, or such earlier date on which the Commitments under this
Agreement have terminated in accordance with the terms of this Agreement and
the
other Loan Documents.
"Financial
Statements"
means
(i) the audited consolidated balance sheet of the Parent and its Subsidiaries
for the Fiscal Year ended December 31, 2006, and the related consolidated
statement of operations, shareholders' equity and cash flows for the Fiscal
Year
then ended, and (ii) the unaudited condensed consolidated balance sheet of
the Parent and its Subsidiaries for the three months ended March 31, 2007,
and
the related condensed consolidated statement of operations and cash flows for
the three months then ended.
"Fiscal
Year"
means
the fiscal year of the Parent and its Subsidiaries ending on December 31 of
each
year.
"Fixed
Charge Coverage Ratio"
means,
with respect to any Person for any period, the ratio of (i) Consolidated
EBITDA of such Person and its Subsidiaries for such period minus
Capital
Expenditures (other than Capital Lease Obligations) made by such Person and
its
Subsidiaries during such period, to (ii) the sum of, without duplication,
(A) all principal of Indebtedness of such Person and its Subsidiaries
scheduled to be paid or prepaid during such period to the extent there is an
equivalent permanent reduction in the commitments thereunder (including payments
under Capitalized Lease Obligations), plus
(B) the cash portion of Consolidated Net Interest Expense of such Person
and its Subsidiaries for such period, plus
(C) cash income taxes paid or due and payable by such Person and its
Subsidiaries during such period. In determining the Fixed Charge Coverage Ratio
for a particular period pro forma effect will be given to: (1) the
incurrence, repayment or retirement of any Indebtedness by such Person and
its
Subsidiaries since the first day of such period as if such Indebtedness was
incurred, repaid or retired on the first day of such period and (2) the
acquisition (whether by purchase, merger or otherwise) or disposition (whether
by sale, merger or otherwise) of any property or assets acquired or disposed
of
by such Person and its Subsidiaries since the first day of such period, as
if
such acquisition or disposition occurred on the first day of such
period.
-13-
"Fortress"
has the
meaning specified therefor in the preamble hereto.
"GAAP"
means
generally accepted accounting principles in effect from time to time in the
United States, applied on a consistent basis, provided that for the purpose
of
0
hereof
and the definitions used therein, "GAAP" shall mean generally accepted
accounting principles in effect on the date hereof and consistent with those
used in the preparation of the Financial Statements, provided, further, that
if
there occurs after the date of this Agreement any change in GAAP that affects
in
any respect the calculation of any covenant contained in 0
hereof,
the Collateral Agent and the Borrower shall negotiate in good faith amendments
to the provisions of this Agreement that relate to the calculation of such
covenant with the intent of having the respective positions of the Lenders
and
the Borrower
after
such change in GAAP conform as nearly as possible to their respective positions
as of the date of this Agreement and, until any such amendments have been agreed
upon, the covenants in 0
hereof
shall be calculated as if no such change in GAAP has occurred.
"Governmental
Authority"
means
any nation or government, any international, federal (including the federal
government of Canada), state, provincial, city, town, municipality, county,
local or other political subdivision thereof or thereto and any department,
commission, tribunal, court, board, bureau, instrumentality, agency or other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guaranteed
Obligations"
has the
meaning specified therefor in 0.
"Guarantors"
means,
collectively, the US Guarantors and the Canadian Guarantors.
"Guaranty"
means
(i) the guaranty of each US Guarantor and Canadian Guarantor party hereto
contained in 0
hereof,
and (ii) each guaranty substantially in the form of Exhibit A, made by any
other Guarantor in favor of the Collateral Agent for the benefit of the Agents
and the Lenders pursuant to 0
or
otherwise.
"Hazardous
Material"
means
(a) any element, compound or chemical that is defined, listed, regulated or
otherwise classified as a contaminant, pollutant, toxic pollutant, toxic or
hazardous substance, extremely hazardous substance or chemical, waste, hazardous
waste, special waste, or solid waste under Environmental Laws or that could
reasonably be expected to cause immediately, or at some future time, harm to
or
have an adverse effect on, the environment or human health or safety, including,
without limitation, any pollutant, contaminant, waste, hazardous waste, toxic
substance or dangerous good which is defined, regulated or identified in any
Environmental Law and which is present in the environment in such quantity
or
state that it contravenes any Environmental Law; (b) petroleum and its
refined products; (c) polychlorinated biphenyls; (d) any substance
exhibiting a waste, hazardous waste characteristic, including, without
limitation, corrosivity, ignitability, toxicity or reactivity as well as any
radioactive or explosive materials; and (e) any raw materials, building
components (including, without limitation, asbestos-containing materials) and
manufactured products containing hazardous substances listed, regulated or
classified as such under Environmental Laws.
-14-
"Hedging
Agreement"
means
any interest rate, foreign currency, commodity or equity swap, collar, cap,
floor or forward rate agreement, or other agreement or arrangement designed
to
protect against fluctuations in interest rates or currency, commodity or equity
values (including, without limitation, any option with respect to any of the
foregoing and any combination of the foregoing agreements or arrangements),
and
any confirmation executed in connection with any such agreement or
arrangement.
"Highest
Lawful Rate"
means,
with respect to any Agent or any Lender, the maximum non-usurious interest
rate,
if any, that at any time or from time to time may be contracted for, taken,
reserved, charged or received on the Obligations under laws applicable to such
Agent or such Lender which are currently in effect or, to the extent allowed
by
law, under such applicable laws which may hereafter be in effect and which
allow
a higher maximum non-usurious interest rate than applicable laws now
allow.
"Immaterial
Subsidiary"
means,
at any time, any Subsidiary of the Parent the annual Consolidated EBITDA of
which is less than $250,000, provided that the aggregate annual Consolidated
EBITDA of all Subsidiaries of the Parent that would otherwise constitute
Immaterial Subsidiaries shall not exceed $1,500,000.
"Indebtedness"
means,
with respect to any Person, without duplication, (i) all indebtedness of such
Person for borrowed money; (ii) all obligations of such Person for the
"earn-out" or other deferred purchase price of property or services (other
than
trade payables or other accounts payable incurred in the ordinary course of
such
Person's business) to the extent such obligations are shown as a liability
on
the balance sheet of such Person; (iii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments or upon
which
interest payments are customarily made; (iv) all reimbursement, payment or
other obligations and liabilities of such Person created or arising under any
conditional sales or other title retention agreement with respect to property
used and/or acquired by such Person, even though the rights and remedies of
the
lessor, seller and/or lender thereunder may be limited to repossession or sale
of such property; (v) all Capitalized Lease Obligations of such Person;
(vi) all obligations and liabilities, contingent or otherwise, of such
Person, in respect of letters of credit, acceptances and similar facilities;
(vii) all obligations and liabilities, calculated on a basis satisfactory
to the Collateral Agent and in accordance with accepted practice, of such Person
under Hedging Agreements; (viii) all monetary obligations under any
receivables factoring, receivable sales or similar transactions and all monetary
obligations under any synthetic lease, tax ownership/operating lease,
off-balance sheet financing or similar financing; (ix) all Contingent
Obligations; and (x) all obligations referred to in clauses
(i) through (ix) of this definition of another Person secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) a Lien upon property owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Indebtedness. The Indebtedness of any Person shall include the Indebtedness
of
any partnership of or joint venture in which such Person is a general partner
or
a joint venturer.
-15-
"Indemnified
Matters"
has the
meaning specified therefor in 0.
"Indemnitees"
has the
meaning specified therefor in 0.
"Insolvency
Proceeding"
means
any proceeding commenced by or against any Person under any provision of the
Bankruptcy Code or under any other bankruptcy or insolvency law, assignments
for
the benefit of creditors, formal or informal moratoria, compositions, or
extensions generally with creditors, or proceedings seeking reorganization,
arrangement, or other similar relief.
"Intercompany
Subordination Agreement"
means
an Intercompany Subordination Agreement made by the Loan Parties in favor of
the
Collateral Agent for the benefit of the Agents and the Lenders, in form and
substance reasonably satisfactory to the Collateral Agent.
"Interest
Period"
means,
with respect to any LIBOR Rate Loan, the period commencing on the borrowing
date
or the date of any continuation of such LIBOR Rate Loan, as the case may be,
and
ending (a) with respect to the Revolving Loans, one (1), two (2), three (3)
or
six (6) months thereafter, and (b) with respect to the Term Loans, three (3)
months thereafter, provided
that (i)
any Interest Period that would otherwise end on a day that is not a Business
Day
shall be extended to the next succeeding Business Day, unless such Business
Day
falls in another calendar month, in which case such Interest Period shall end
on
the next preceding Business Day, (ii) no Interest Period for any LIBOR Rate
Loan
shall end after the Final Maturity Date, and (iii) LIBOR Rate Loans borrowed
on
the same date shall have the same Interest Period.
"Internal
Revenue Code"
means
the Internal Revenue Code of 1986, as amended (or any successor statute thereto)
and the regulations thereunder.
"Inventory"
means,
with respect to any Person, all goods and merchandise of such Person, including,
without limitation, all raw materials, work-in-process, packaging, supplies,
materials and finished goods of every nature used or usable in connection with
the shipping, storing, advertising or sale of such goods and merchandise,
whether now owned or hereafter acquired, and all such other property the sale
or
other disposition of which would give rise to an Account
or
cash.
"L/C Issuer"
means
the Bank or such other bank as the Administrative Agent may select in its sole
and absolute discretion.
"L/C Subfacility"
means
that portion of the Total Revolving Credit Commitment equal to
$20,000,000.
"Lease"
means
any lease of real property to which any Loan Party or any of its Subsidiaries
is
a party as lessor or lessee.
"Lender"
has the
meaning specified therefor in the preamble hereto.
"Letter
of Credit"
has the
meaning specified therefor in 1)a)ix).
"Letter
of Credit Application"
has the
meaning specified therefor in 1)a)ix).
-16-
"Letter
of Credit Collateral Account"
has the
meaning specified therefor in 0.
"Letter
of Credit Fee"
has the
meaning specified therefor in 1)a)ix)(1).
"Letter
of Credit Override Fee"
has the
meaning specified therefor in 1)a)ix)(1).
"Letter
of Credit Guaranty"
means
one or more guaranties by the Administrative Agent
in
favor of the L/C Issuer guaranteeing or relating to the Borrower's
obligations to the L/C Issuer under a reimbursement agreement, Letter of
Credit Application or other like document in respect of any Letter of
Credit.
"Letter
of Credit Obligations"
means,
at any time and without duplication, the sum of (i) the Reimbursement
Obligations at such time, plus
(ii) the aggregate maximum amount available for drawing under the Letters
of Credit outstanding at such time, plus
(iii) all amounts for which the Administrative Agent may be liable to the
L/C Issuer pursuant to any Letter of Credit Guaranty.
"LIBOR"
means
the rate per annum appearing
on Reuters Screen LIBOR01 Page as of 11:00 a.m., London time, two Business
Days
prior to the commencement of the
requested Interest Period,
as the
rate for Dollar deposits with a maturity comparable to the
requested Interest Period.
In the
event that such rate does not appear on Reuters Screen LIBOR01 Page (or
otherwise on such screen), "LIBOR" shall be determined by reference to such
other comparable publicly available service for displaying eurodollar rates
as
may be selected by the Administrative Agent or, in the absence of such
availability, by reference to the rate at which the Administrative Agent is
offered Dollar deposits at or about 11:00 A.M., New York City time, two Business
Days prior to the beginning of the
requested Interest Period
in the
interbank eurodollar market where its eurodollar and foreign currency and
exchange operations are then being conducted for delivery on the first day
of
the
requested Interest Period
for the
number of days comprised therein, which
determination shall be conclusive in the absence of manifest error.
"LIBOR
Rate"
means,
for each Interest Period for each LIBOR Rate Loan, the greater of (a) the rate
per annum determined by the Administrative Agent by dividing (i) LIBOR for
such
Interest Period by (ii) 100% minus the Reserve Percentage and (b) 3.00%. The
LIBOR Rate shall be adjusted on and as of the effective day of any change in
the
Reserve Percentage.
"LIBOR
Rate Loan"
means a
Loan bearing interest calculated based upon the LIBOR Rate.
"Lien"
means
any mortgage, deed of trust, pledge, lien (statutory or otherwise), security
interest, charge or other encumbrance or security, including, without
limitation, any conditional sale or title retention arrangement, any Capitalized
Lease and any assignment, deposit arrangement or financing lease intended as,
or
having the effect of, security.
"Loan"
means
the Term Loan A, the Term Loan B or any Revolving Loan made by an Agent or
a
Lender to the Borrower
pursuant
to 0
hereof.
-17-
"Loan
Account"
means
an account maintained hereunder by the Administrative Agent on its books of
account at the Payment Office, and with respect to the Borrower,
in
which the Borrower
will be
charged with all Loans made to, and all other Obligations incurred by, the
Borrower.
"Loan
Document"
means
this Agreement, the Fee Letter, any Guaranty, any Security Agreement, any
Mortgage, any Canadian Pledge Agreement, any Canadian Security Agreement, any
Letter of Credit Application, any Intercompany Subordination Agreement, and
Contribution Agreement, any Control Agreement, and any other agreement,
instrument, and other document executed and delivered pursuant hereto or thereto
or otherwise evidencing or securing any Loan, any Letter of Credit Obligation
or
any other Obligation.
"Loan
Party"
means
the Borrower and any Guarantor.
"Louisiana
IDB"
means
the secured performance based forgivable loan granted to Accent Marketing of
up
to $3,000,000 for the establishment of a new Call Center in Monroe, Louisiana,
by the Louisiana Economic Development Corporation.
"Management
Services Agreement"
means
that certain Management Services Agreement, dated as of April 27, 2007, among
Parent, Nadal Management, Inc. and ▇▇▇▇▇ ▇▇▇▇▇.
"Marketing
Communications Business"
means
the advertising and marketing services businesses including, without limitation,
public and government relations, corporate communications, research, direct
marketing, database management, trade shows and exhibitions, event sponsorship,
branding and corporate identity, strategic marketing, consulting, promotions
and
interactive services, and any activities generally related to any of the
foregoing.
"Material
Adverse Effect"
means a
material adverse effect on (i) the operations, business, assets, properties
or condition (financial or otherwise) of the Loan Parties taken as a whole,
(ii) the ability of the Loan Parties, taken as a whole, to perform any of
their obligations under any Loan Document, (iii) the legality, validity or
enforceability against the Loan Parties, taken as a whole, of this Agreement
or
any other Loan Document, or (iv) the rights and remedies of any Agent or
any Lender under any Loan Document to which it is a party.
"Material
Contract"
means,
with respect to any Person, each customer and supplier contract or agreement
to
which such Person or any of its Subsidiaries is a party involving aggregate
consideration payable to or by such Person or such Subsidiary of $5,000,000
or
more (other than purchase orders in the ordinary course of the business of
such
Person or such Subsidiary and other than contracts that have a term less than
90
days or that by their terms may be terminated by such Person or Subsidiary
in
the ordinary course of its business upon less than 90 days' notice without
penalty or premium).
"Minority
Holders"
means,
at any time, as the context requires: (i) any Shareholder of a Person that
is an
employee, officer, or director of such Person at such time, (ii) any Shareholder
of a Person who, prior to such time, was an employee, officer, or director
of
such Person, (iii) any individual who, at such time, is an employee, officer,
or
director of a Person and immediately after such time becomes a Shareholder
of
such Person, or (iv) any Shareholder of a Person that is a corporation
controlled by an employee, officer, or director of such Person, or a trust
established for the benefit of an employee, officer, or director or its
immediate family member or spouse of an employee, officer, or director of such
Person, in each case who owns, and immediately after such time will own, less
than 50% of the Capital Stock of such Person.
-18-
"Minority-Owned
Entity"
means
any Person in which the Parent owns, directly or indirectly, less than 50%
of
the Capital Stock thereof.
"Moody's"
means
▇▇▇▇▇'▇ Investors Service, Inc. and any successor thereto.
"Mortgage"
means a
mortgage (including, without limitation, a leasehold mortgage), deed of trust
or
deed to secure debt, in form and substance satisfactory to the Collateral Agent,
made by a Loan Party in favor of the Collateral Agent for the benefit of the
Agents, the Lenders and the Bank Product Providers, securing the Obligations
and
delivered to the Collateral Agent pursuant to 0,
0
or
otherwise.
"Multiemployer
Plan"
means a
"multiemployer plan" as defined in Section 4001(a)(3) of ERISA to which any
Loan
Party or any of its ERISA Affiliates has contributed to, or has been obligated
to contribute, at any time during the preceding six (6) years.
"Net
Cash Proceeds"
means,
(i) with respect to any Disposition by any Person or any of its
Subsidiaries, the amount of cash received (directly or indirectly) from time
to
time (whether as initial consideration or through the payment or disposition
of
deferred consideration) by or on behalf of such Person or such Subsidiary,
in
connection therewith after deducting therefrom only (A) the amount of any
Indebtedness secured by any Lien permitted by 0
on any
asset (other than Indebtedness assumed by the purchaser of such asset) which
is
required to be, and is, repaid in connection with such Disposition (other than
Indebtedness under this Agreement), (B) reasonable expenses, premiums, fees
and commissions related thereto incurred by such Person or such Subsidiary
in
connection therewith, (C) transfer and/or similar taxes paid to any taxing
authorities by such Person or such Subsidiary in connection therewith, and
(D) net income taxes to be paid in connection with such Disposition (after
taking into account any tax credits or deductions relating thereto and any
tax
sharing arrangements) and (ii) with respect to the issuance or incurrence
of any Indebtedness by any Person or any of its Subsidiaries, or the sale or
issuance by any Person or any of its Subsidiaries of any shares of its Capital
Stock (excluding any sale or issuance of the Capital Stock of any Loan Party
to
its management personnel or employees permitted under this Agreement), the
aggregate amount of cash received (directly or indirectly) from time to time
(whether as initial consideration or through the payment or disposition of
deferred consideration) by or on behalf of such Person or such Subsidiary in
connection therewith, after deducting therefrom only (A) reasonable
expenses, fees and commissions related thereto incurred by such Person or such
Subsidiary in connection therewith, (B) transfer and similar taxes paid by
such
Person or such Subsidiary in connection therewith and (C) net income taxes
to be
paid in connection therewith (after taking into account any tax credits or
deductions and any tax sharing arrangements); in each case of clause (i) and
(ii) to the extent, but only to the extent, that the amounts so deducted are
(x) actually paid to a Person that, except in the case of reasonable
out-of-pocket expenses, is not an Affiliate of such Person or any of its
Subsidiaries and (y) properly attributable to such transaction or to the asset
that is the subject thereof.
-19-
"New
Lending Office"
has the
meaning specified therefor in 0.
"Non-U.S.
Lender"
has the
meaning specified therefor in 0.
"Notice
of Borrowing"
has the
meaning specified therefor in 1)a)ii).
"Obligations"
means
all
present and future indebtedness, obligations, and liabilities of each Loan
Party
to the Agents and the Lenders, whether or not the right of payment in respect
of
such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured, unsecured, and whether
or not such claim is discharged, stayed or otherwise affected by any proceeding
referred to in 0.
Without
limiting the generality of the foregoing, the Obligations of each Loan Party
under the Loan Documents include (a) the obligation to pay principal,
interest, charges, expenses, fees (including
the fees provided for in the Fee Letter),
reasonable attorneys' fees and disbursements, indemnities and other amounts
payable by such Person under the Loan Documents, (b) the obligation of such
Person to reimburse any amount in respect of any of the foregoing that any
Agent
or any Lender (in its sole discretion) may elect to pay or advance on behalf
of
such Person to the extent as provided for in the Loan Documents, and (c) the
Bank Product Obligations.
"Operating
Lease Obligations"
means
all obligations for the payment of rent for any real or personal property under
leases or agreements to lease, other than Capitalized Lease
Obligations.
"Ownership
Percentage"
means,
with respect to any Person, the percentage of its Capital Stock that is owned
by
a Loan Party or any Subsidiary thereof.
"Other
Taxes"
has the
meaning specified therefor in 0.
"Parent"
has the
meaning specified therefor in the preamble hereto.
"Participant
Register"
has the
meaning specified therefor in 0.
"Payment
Office"
means
the Administrative Agent's office located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other office or offices of the Administrative
Agent
as may be designated in writing from time to time by the Administrative Agent
to
the Collateral Agent and the Borrower.
"PBGC"
means
the Pension Benefit Guaranty Corporation or any successor thereto.
"Permitted
Acquisition"
means:
(a) any
Acquisition by a Loan Party or any Subsidiary of a Loan Party to the extent
that
each of the following conditions shall have been satisfied:
(i) to
the
extent the Acquisition will be financed in whole or in part with the proceeds
of
any Loan, the conditions set forth in 0
and 5.02
shall have been satisfied;
-20-
(ii) the
Borrower
shall
have furnished to the Collateral Agent, (x)
to
the extent the Purchase Price of any Acquisition is greater than $1,000,000,
at
least 30 days prior to the consummation of such Acquisition (1) if available,
an
executed term sheet and/or commitment letter (setting forth in reasonable detail
the terms and conditions of such Acquisition), (2) pro forma financial
statements of the Parent and its Subsidiaries after giving effect to the
consummation of such Acquisition, and (3) a certificate of the chief financial
officer of the Parent, demonstrating on a pro forma basis compliance with all
covenants set forth in 0
hereof
after the consummation of such Acquisition, (y) at least 5 days prior to the
consummation of any Acquisition, any memoranda or presentations delivered to
the
Board of Directors of the Parent regarding such Acquisition or if such memoranda
or presentations are not available, a summary describing the rationale of such
Acquisition in reasonable details, and (z) to the extent the Purchase Price
of
any Acquisition is greater than $1,000,000, promptly following the closing
of
such Acquisition, executed counterparts of the respective agreements,
instruments or other documents pursuant to which such Acquisition has been
consummated (including, without limitation, any related management, non-compete,
employment, option or other material agreements), any schedules to such
agreements, instruments or other documents and all other material ancillary
agreements, instruments or other documents executed or delivered in connection
therewith;
(iii) the
agreements, instruments and other documents referred to in paragraph (a)(ii)
above shall provide that (1) neither the Loan Parties nor any of their
Subsidiaries shall, in connection with such Acquisition, assume or remain liable
in respect of any Indebtedness of the Seller or Sellers, or other obligation
of
the Seller or Sellers (except any Permitted Indebtedness), and (2) all property
to be so acquired in connection with such Acquisition shall be free and clear
of
any and all Liens, except for Permitted Liens (and if any such property is
subject to any Lien not permitted by this clause (2) then concurrently with
such
Acquisition such Lien shall be released);
(iv) the
entity to be acquired or formed as a result of such Acquisition (the
"Target")
shall
be engaged in the same or similar business as described in Section
6.01(l);
(v) upon
the
consummation of such Acquisition, the Target shall be a direct Subsidiary of
a
Loan Party, provided
that the
Loan Parties may acquire less than 50% of (A) the outstanding Capital Stock
having (in the absence of contingencies) ordinary voting power to elect a
majority of the board of directors or other managing body of such Target,
(B) in the case of a partnership or limited liability company, the interest
in the capital or profits of such Target or (C) in the case of a trust,
estate, association, joint venture or other entity, the beneficial interest
in
such Target, in each case to the extent that (1) the cash portion of the
Purchase Price for all such acquisitions effected after the Effective Date
shall
not exceed $15,000,000 in the aggregate and (2) the non-cash portion of the
Purchase Price paid in shares of Capital Stock of the Loan Parties for all
such
acquisitions effected after the Effective Date shall not exceed $40,000,000
in
the aggregate;
-21-
(vi) such
Acquisition shall be effected in such a manner so that the acquired Capital
Stock or assets are owned either by a Loan Party or a Subsidiary of a Loan
Party
and, if effected by merger or consolidation involving a Loan Party, such Loan
Party shall be the continuing or surviving Person or such surviving Person
shall
be a Loan Party;
(vii) any
such
Target (and its equityholders) shall execute and deliver the agreements,
instruments and other documents required by 0;
(viii) the
Loan
Parties' proportional share of the Target's EBITDA for the trailing twelve
months shall not exceed 15% of the Consolidated EBITDA of the Parent and its
Subsidiaries for the trailing twelve months (calculated on a pro forma basis
after giving effect to such Acquisition but before deducting any corporate
overhead);
(b) any
Acquisition by a Loan Party or any Subsidiary of a Loan Party to the extent
that
(i) each of the conditions set forth in clauses (a)(ii), (iii), (iv), (vi)
and
(vii) above shall have been satisfied, and (ii) 100% of the Purchase Price
of
such Acquisition shall be paid in Shares of Capital Stock of such Loan Party
or
such Subsidiary so long as such Loan Party or such Subsidiary shall continue
to
constitute a Subsidiary of a Loan Party after giving effect of such Acquisition;
and
(c) any
Acquisition by a Loan Party or any Subsidiary of a Loan Party to the extent
that
(i) (A) such Acquisition is pursuant to a put or call option in existence prior
to the Effective Date and listed on Schedule 7.02(e) and (B) each of the
conditions set forth in clauses (a)(ii), (iii), (iv), (vi) and (vii) above
shall
have been satisfied, or (ii) the
Agents, with the consent of the Required Lenders, shall otherwise have consented
to such Acquisition.
"Permitted
Indebtedness"
means:
-22-
(g) Indebtedness
of any Loan Party incurred in connection with the issuance of letters of credit
on behalf of such Loan Party in the ordinary course of business, provided that
the aggregate face amount of such letters of credit shall not exceed $20,000,000
at any time minus the aggregate amount of Letter of Credit Obligations then
outstanding;
(h) Contingent
Obligations incurred in the ordinary course of business by Parent or any other
Loan Party guaranteeing obligations of Parent or any Loan Party permitted under
this Agreement;
(i) Indebtedness
of Parent or any other Loan Party arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
drawn by Parent or such Loan Party in the ordinary course of business against
insufficient funds, so long as such Indebtedness is repaid within five Business
Days;
(j) Indebtedness
in respect of performance bonds, bid bonds, appeal bonds, bankers’ acceptances,
surety bonds or other similar obligations arising in the ordinary course of
business, and any refinancings thereof to the extent not provided to secure
the
repayment of other Indebtedness (including guarantees relating
thereto);
(k) Indebtedness
in respect of one or more Hedging Agreements entered into by any Loan Party
in
the ordinary course of its business and not for speculative purposes in an
aggregate principal amount (as opposed to the aggregate notional amount) not
exceeding $7,500,000;
(l) Indebtedness
of any Person that is acquired in an Permitted Acquisition that is existing
at
the time such Person is merged with or into or becomes a Subsidiary of Parent,
provided that (i) such Indebtedness is not incurred in connection with, or
in
contemplation of, such Person merging with or into or becoming a Subsidiary
of
Parent, and (ii) the aggregate amount of such Indebtedness, together with any
extensions, renewals and refinancings thereof, incurred or assumed after the
Effective Date shall not exceed $5,000,000 at any time outstanding;
and
(m) other
Indebtedness in an aggregate amount not exceeding $10,000,000 at any time
outstanding.
"Permitted
Investments"
means
(i) marketable direct obligations issued or unconditionally guaranteed by
the United States Government, the federal government of Canada or issued by
any
agency thereof and backed by the full faith and credit of the United States
or
Canada, in each case, maturing within six months from the date of acquisition
thereof; (ii) commercial paper, maturing not more than 270 days after
the date of issue rated P-1 by ▇▇▇▇▇'▇ or A-1 by Standard & Poor's or such
comparable rating agencies in Canada; (iii) certificates of deposit
maturing not more than 270 days after the date of issue, issued by
commercial banking institutions and money market or demand deposit accounts
maintained at commercial banking institutions, each of which is a member of
the
Federal Reserve System and has a combined capital and surplus and undivided
profits of not less than $500,000,000; (iv) repurchase agreements having
maturities of not more than 90 days from the date of acquisition which are
entered into with major money center banks included in the commercial banking
institutions described in clause (iii) above and which are secured by
readily marketable direct obligations of the United States Government, the
federal government of Canada or any agency thereof, (v) money market
accounts maintained with mutual funds having assets in excess of $2,500,000,000;
and (vi) tax exempt securities rated A or higher by ▇▇▇▇▇'▇ or A+ or higher
by Standard & Poor's or such comparable rating agencies in
Canada.
-23-
"Permitted
Liens"
means:
(a) Liens
securing the Obligations;
(b) Liens
for
taxes, assessments and governmental charges the payment of which is not required
under 0;
(c) Liens
imposed by law, such as carriers', warehousemen's, mechanics', materialmen's
and
other similar Liens arising (provided they are subordinate to the Collateral
Agent's Liens on Collateral) in the ordinary course of business and securing
obligations (other than Indebtedness for borrowed money) that are not overdue
by
more than 30 days or are being contested in good faith and by appropriate
proceedings promptly initiated and diligently conducted, and a reserve or other
appropriate provision, if any, as shall be required by GAAP shall have been
made
therefor;
(d) Liens
described on Schedule 0,
but not
the extension of coverage thereof to other property or the extension of
maturity, refinancing or other modification of the terms thereof or the increase
of the Indebtedness secured thereby;
(f) deposits
and pledges of cash securing (i) obligations incurred in respect of workers'
compensation, unemployment insurance or other forms of governmental insurance
or
benefits, (ii) the performance of bids, tenders, leases, contracts (other
than for the payment of money) and statutory obligations or (iii) obligations
on
surety or appeal bonds, but only to the extent such deposits or pledges are
made
or otherwise arise in the ordinary course of business;
(g) easements,
zoning restrictions and similar encumbrances on real property and minor
irregularities in the title thereto that do not (i) secure obligations for
the
payment of money or (ii) materially impair the value of such property or its
use
by any Loan Party or any of its Subsidiaries in the normal conduct of such
Person's business;
-24-
(h) Liens
securing Indebtedness permitted by clause (c) of the definition of Permitted
Indebtedness;
(i) deposits
and pledges of cash in favor of issuers of letters of credit permitted by clause
(g) of the definition of "Permitted Indebtedness," so long as such Liens attach
solely to the cash collateralizing such letters of credit;
(j) customary
Liens for the fees, costs and expenses of trustees and escrow agents pursuant
to
any indenture, escrow agreement or similar agreement establishing a trust or
escrow arrangement;
(k) Liens
arising out of awards, pre-judgment attachments or judgments not otherwise
constituting an Event of Default hereunder, so long as the enforcement of such
award or judgment has been stayed by reason of a pending appeal or
otherwise;
(l) Liens
in
favor of collecting banks having a right of setoff, revocation, refund or
chargeback with respect to money or instruments of Parent or any other Loan
Party on deposits with or in possession of such banks, other than relating
to
Indebtedness;
(m) any
interest or title of a lessor under any lease entered into by Parent or any
other Loan Party in the ordinary course of its business and covering only the
assets so leased, and any financing statement filed in connection with such
lease;
(n) the
right
(so long as not exercised) reserved to or vested in any Governmental Authority
by the terms of any authorization acquired by any Loan Party or by any statutory
provision, to terminate any such authorization, or to require annual or other
periodic payments as a condition of the continuance thereof or to distrain
or
obtain a charge on any business asset of any Loan Party in the event of a
failure to make such annual or periodic payments or to comply with the terms
thereof;
(o) any
rights (so long as not exercised) of expropriation, access or use or other
similar such rights conferred or vested on public authorities by or under
statutes of Canada or any province or territory of Canada or any foreign
jurisdiction, or any political subdivision thereof;
(p) the
reservations, limitations, provisos and conditions, if any, expressed in any
original grants from the Crown;
(q) Liens
securing Indebtedness under clause (k) of the definition of "Permitted
Indebtedness",
so long
as such Liens attach solely to the cash payments subject to such Hedging
Agreements;
(r) Liens
in
favor of a landlord arising in the ordinary course of business of the Loan
Parties (other than Liens on the tenant improvements); and
-25-
(s) other
Liens so long as the Indebtedness secured thereby does not exceed $1,000,000
in
the aggregate.
"Person"
means
an individual, corporation, limited liability company, partnership, association,
joint-stock company, trust, unincorporated organization, joint venture or other
enterprise or entity or Governmental Authority.
"Plan"
means
any Employee Plan or Multiemployer Plan.
"Post-Default
Rate"
means a
rate of interest per annum equal to the rate of interest otherwise in effect
from time to time pursuant to the terms of this Agreement plus 3.00%, or, if
a
rate of interest is not otherwise in effect, interest at the highest rate
specified herein for any Loan then outstanding prior to an Event of Default
plus
3.00%.
"PPSA"
means
the Personal Property Security Act of the applicable Canadian province or
provinces in respect of the Canadian Guarantors, or
any
other applicable Canadian Federal or Provincial statute pertaining to the
granting, perfecting, priority or ranking of security interests, liens,
hypothecs on personal property, and any successor statutes, together with any
regulations thereunder, in each case as in effect from time to time. References
to sections of the PPSA shall be construed to also refer to any successor
sections.
"Pro
Rata Share"
means:
(a) with
respect to a Lender's obligation to make Revolving Loans and receive payments
of
interest, fees, and principal with respect thereto, the percentage obtained
by
dividing (i) such Lender's Revolving Credit Commitment, by (ii) the
Total Revolving Credit Commitment, provided,
that,
if the Total Revolving Credit Commitment has been reduced to zero, the numerator
shall be the aggregate unpaid principal amount of such Lender's Revolving Loans
and its interest in the Letter of Credit Obligations and the denominator shall
be the aggregate unpaid principal amount of all Revolving Loans and Letter
of
Credit Obligations,
(b) with
respect to a Lender's obligation to make the Term Loan A and receive payments
of
interest, fees, and principal with respect thereto, the percentage obtained
by
dividing (i) such Lender's Term Loan A Commitment, by (ii) the Total
Term Loan A Commitment, provided
that if
the Total Term Loan A Commitment has been reduced to zero, the numerator shall
be the aggregate unpaid principal amount of such Lender's portion of the Term
Loan A and the denominator shall be the aggregate unpaid principal amount of
the
Term Loan A,
(c) with
respect to a Lender's obligation to make the Term Loan B and receive payments
of
interest, fees, and principal with respect thereto, the percentage obtained
by
dividing (i) such Lender's Term Loan B Commitment, by (ii) the Total
Term Loan B Commitment, provided
that if
the Total Term Loan B Commitment has been reduced to zero, the numerator shall
be the aggregate unpaid principal amount of such Lender's portion of the Term
Loan B and the denominator shall be the aggregate unpaid principal amount of
the
Term Loan B, and
(d) with
respect to all other matters (including, without limitation, the indemnification
obligations arising under Section 10.05), the percentage obtained by
dividing (i) the sum of such Lender's Revolving Credit Commitment, Term
Loan B Commitment (and if such Lender's Term Loan B Commitment has been reduced
to zero, the aggregate unpaid principal amount of such Lender's portion of
the
Term Loan B) and the unpaid principal amount of such Lender's portion of the
Term Loan A, by (ii) the sum of the Total Revolving Credit Commitment, the
Total Term Loan B Commitment (and the Total Term Loan B Commitment has been
reduced to zero, the aggregate unpaid principal amount of the Term Loan B)
and
the aggregate unpaid principal amount of the Term Loan A, provided,
that,
if such Lender's Revolving Credit Commitment shall have been reduced to zero,
such Lender's Revolving Credit Commitment shall be deemed to be the aggregate
unpaid principal amount of such Lender's Revolving Loans and its interest in
the
Letter of Credit Obligations and if the Total Revolving Credit Commitment shall
have been reduced to zero, the Total Revolving Credit Commitment shall be deemed
to be the aggregate unpaid principal amount of all Revolving Loans and Letter
of
Credit Obligations.
-26-
"Purchase
Price"
means,
with respect to any Acquisition, an amount equal to the sum of (i) the aggregate
consideration, whether cash, property or securities (including, without
limitation, the fair market value of any Capital Stock of any
Loan
Party
issued
in connection with such Acquisition), paid or delivered by a
Loan
Party
in
connection with such Acquisition, plus (ii) the aggregate amount of current
liabilities of the acquired business (net of current assets of the acquired
business) that would be reflected on a balance sheet (if such were to be
prepared) of the Parent and its Subsidiaries after giving effect to such
Acquisition.
"Rating
Agencies"
has the
meaning specified therefor in 0.
"Reference
Bank"
means
▇▇▇▇▇ Fargo Bank, National Association, its successors or any other commercial
bank designated by the Administrative Agent to the Borrower from time to
time.
"Reference
Rate"
means
the rate of interest publicly announced by the Reference Bank in New York,
New
York from time to time as its reference rate, base rate or prime rate. The
reference rate, base rate or prime rate is determined from time to time by
the
Reference Bank as a means of pricing some loans to its borrowers and neither
is
tied to any external rate of interest or index nor necessarily reflects the
lowest rate of interest actually charged by the Reference Bank to any particular
class or category of customers. Each change in the Reference Rate shall be
effective from and including the date such change is publicly announced as
being
effective.
"Reference
Rate Loan"
means a
Loan bearing interest calculated based upon the Reference Rate.
"Register"
has the
meaning specified therefor in 0.
"Registered
Loans"
has the
meaning specified therefor in 0.
"Regulation
T",
"Regulation
U"
and
"Regulation
X"
mean,
respectively, Regulations T, U and X of the Board or any successor, as the
same
may be amended or supplemented from time to time.
-27-
"Reimbursement
Obligations"
means
the obligation of the
Borrower
to
reimburse the Administrative Agent or any Lender for amounts payable by the
Administrative Agent or any Lender under a Letter of Credit Guaranty in respect
of any drawing made under any Letter of Credit, together with interest thereon
as provided in 1)a)iv).
"Related
Fund"
means,
with respect to any Person, an Affiliate of such Person, or a fund or account
managed by such Person or an Affiliate of such Person.
"Related
Party Assignment"
has the
meaning specified therefor in 0.
"Related
Party Register"
has the
meaning specified therefor in 0.
"Release"
means
any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, seeping, migrating, dumping or disposing of
any
Hazardous Material (including the abandonment or discarding of barrels,
containers and other closed receptacles containing any Hazardous Material)
into
the indoor or outdoor environment, including, without limitation, the movement
of Hazardous Materials through or in the ambient air, soil, surface or ground
water, or property.
"Remedial
Action"
means
all actions taken to (i) clean up, remove, remediate, contain, treat, monitor,
assess, evaluate or in any other way address Hazardous Materials in the indoor
or outdoor environment; (ii) prevent or minimize a Release or threatened Release
of Hazardous Materials so they do not migrate or endanger or threaten to
endanger public or worker health, safety or welfare or the indoor or outdoor
environment; (iii) perform pre-remedial studies and investigations and
post-remedial operation and maintenance activities; or (iv) perform any
other actions authorized by 42 U.S.C. § 9601.
"Reportable
Event"
means
an event described in Section 4043 of ERISA (other than an event not subject
to
the provision for 30-day notice to the PBGC under the regulations promulgated
under such Section).
"Required
Lenders"
means
Lenders whose Pro Rata Shares aggregate at least 50.1%.
"Reserve
Percentage"
means,
on any day, for any Lender, the maximum percentage prescribed by the Board
(or
any successor Governmental Authority) for determining the reserve requirements
(including any basic, supplemental, marginal, or emergency reserves) that are
in
effect on such date with respect to eurocurrency funding (currently referred
to
as "eurocurrency liabilities") of that Lender, but so long as such Lender is
not
required or directed under applicable regulations to maintain such reserves,
the
Reserve Percentage shall be zero.
"Restricted
Payments"
has the
meaning specified in Section 7.02(h).
"Revolving
Credit Commitment"
means,
with respect to each Lender, the commitment of such Lender to make Revolving
Loans to the Borrower
in the
amount set forth opposite such Lender's name in Schedule 1.01(A) hereto, as
such amount may be terminated or reduced from time to time in accordance with
the terms of this Agreement.
-28-
"Revolving
Loan"
means a
loan made by a Lender to the Borrower
pursuant
to 0.
"Revolving
Loan Lender"
means a
Lender with a Revolving Credit Commitment or that holds a Revolving
Loan.
"Revolving
Loan Obligations"
means
any Obligations with respect to the Revolving Loans (including without
limitation, the principal thereof, the interest thereon, and the fees and
expenses specifically related thereto).
"SEC"
means
the Securities and Exchange Commission or any other similar or successor agency
of the federal government administering the Securities Act and any applicable
Canadian securities regulatory authority having jurisdiction.
"Securities
Act"
means
the Securities Act of 1933, as amended, or any similar Federal or provincial
statute, and the rules and regulations of the SEC thereunder, all as the same
shall be in effect from time to time.
"Securitization"
has the
meaning specified therefor in 0.
"Security
Agreement"
means a
Security Agreement made by a US Loan Party in favor of the Collateral Agent,
for
the benefit of the Agents, the Lenders and the Bank Product Providers,
substantially in the form of Exhibit B, securing the Obligations and
delivered to the Collateral Agent.
"Seller"
means
any Person that sells Capital Stock or other property or assets to a Loan Party
or a Subsidiary of a Loan Party in a Permitted Acquisition.
"Senior
Leverage Ratio"
means,
as of
the last day of any period of four
(4)
consecutive fiscal quarters
for
which financial statements have been delivered or are required to be delivered
under Section 7.01(a), the
ratio
of (a) the sum of (i) the Consolidated
Senior Indebtedness
as of
the last day of such period minus
(ii) the
amount of unrestricted Cash and Cash Equivalents of Loan Parties as of the
last
day of such period held in depository accounts that are subject to a Control
Agreement in favor of the Collateral Agent, to (b) Consolidated EBITDA of
the
Parent and its Subsidiaries
for such
period.
"Settlement
Period"
has the
meaning specified therefor in 1)a)ii)(2)
hereof.
"Shareholder"
means
the holder or owner of any Capital Stock.
"Solvent"
means,
with respect to any Person on a particular date, that on such date (i) the
fair value of the property of such Person is not less than the total amount
of
the liabilities of such Person, (ii) the present fair saleable value of the
assets of such Person is not less than the amount that will be required to
pay
the probable liability of such Person on its existing debts as they become
absolute and matured, (iii) such Person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such Person's ability to pay
as
such debts and liabilities mature, (iv) in respect of the Borrower and any
US Guarantor, such Person is not engaged in business or a transaction, and
is
not about to engage in business or a transaction, for which such Person's
property would constitute unreasonably small capital and (v) in respect of
a
Canadian Guarantor, such Person is not an "insolvent person" (as such term
is
defined in the Bankruptcy and Insolvency Act (Canada)) or a "debtor company"
(as
defined in the Companies' Creditors Arrangement Act (Canada)).
-29-
"Standard
& Poor's"
means
Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. and any successor thereto.
"Subordinated
Indebtedness"
means
Indebtedness of any Loan Party the terms of which are satisfactory to each
Agent
and which has been expressly subordinated in right of payment to all Obligations
(i) by the execution and delivery of a subordination agreement with
subordination provisions no less restrictive than those set forth in the trust
indenture governing the Convertible Subordinated Debt, or (ii) otherwise on
terms and conditions (including, without limitation, subordination provisions,
payment terms, interest rates, covenants, remedies, defaults and other material
terms) satisfactory to each Agent and the Required Lenders.
"Subsidiary"
means,
(a) with respect to any Person at any date, any corporation, limited or general
partnership, limited liability company, trust, estate, association, joint
venture or other business entity (i) the accounts of which would be
consolidated with those of such Person in such Person's consolidated financial
statements if such financial statements were prepared in accordance with GAAP,
or (ii) of which more than 50% of (A) the outstanding Capital Stock
having (in the absence of contingencies) ordinary voting power to elect a
majority of the board of directors or other managing body of such Person,
(B) in the case of a partnership or limited liability company, the interest
in the capital or profits of such partnership or limited liability company
or
(C) in the case of a trust, estate, association, joint venture or other
entity, the beneficial interest in such trust, estate, association or other
entity business is, at the time of determination, owned or controlled directly
or indirectly through one or more intermediaries, by such Person, and (b) except
for the purposes of calculating the financial covenants set forth in Section
7.03 and the terms used in connection therewith (including, without limitation,
"Consolidated EBITDA," "Consolidated Net Income," "Fixed Charge Coverage Ratio,"
and "Senior Coverage Ratio"), each Minority-Owned Entity that is a Loan Party.
"Taxes"
has the
meaning specified therefor in 1)a)v).
"Term
Loan"
means,
collectively, the Term Loan A and the Term Loan B.
"Term
Loan A"
means,
collectively, the loans made by the Term Loan A Lenders to the Borrower
on the
Effective Date pursuant to 0.
"Term
Loan A Commitment"
means,
with respect to each Lender, the commitment of such Lender to make the Term
Loan
A to the Borrower
in the
amount set forth in Schedule 1.01(A) hereto, as the same may be terminated
or reduced from time to time in accordance with the terms of this
Agreement.
"Term
Loan A Lender"
means a
Lender with a Term Loan A Commitment or that holds a Term Loan A.
"Term
Loan B"
means,
collectively, the loans made by the Term Loan B Lenders to the Borrower
on the
Effective Date pursuant to 0.
-30-
"Term
Loan B Commitment"
means,
with respect to each Lender, the commitment of such Lender to make the Term
Loan
B to the Borrower
in the
amount set forth in Schedule 1.01(A) hereto, as the same may be terminated
or reduced from time to time in accordance with the terms of this
Agreement.
"Term
Loan B Lender"
means a
Lender with a Term Loan B Commitment or that holds a Term Loan B.
"Term
Loan Commitment"
means,
collectively, the Term Loan A Commitment and the Term Loan B
Commitment.
"Term
Loan Lender"
means a
Lender with a Term Loan Commitment or that holds a Term Loan.
"Term
Loan Obligations"
means
any Obligations with respect to the Term Loan (including without limitation,
the
principal thereof, the interest thereon, and the fees and expenses specifically
related thereto).
"Termination
Event"
means
(i) a Reportable Event with respect to any Employee Plan, (ii) any event that
causes any Loan Party or any of its ERISA Affiliates to incur liability under
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212
of
ERISA or Section 4971 or 4975 of the Internal Revenue Code, (iii) the
filing of a notice of intent to terminate an Employee Plan or the treatment
of
an Employee Plan amendment as a termination under Section 4041 of ERISA,
(iv) the institution of proceedings by the PBGC to terminate an Employee
Plan, or (v) any other event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Employee Plan.
"Third
Party Letters of Credit"
means
the letters of credit described in clause (g) of the definition of "Permitted
Indebtedness."
"Title
Insurance Policy"
means a
mortgagee's loan policy, in form and substance satisfactory to the Collateral
Agent, together with all endorsements made from time to time thereto, issued
by
or on behalf of a title insurance company satisfactory to the Collateral Agent,
insuring the Lien created by a Mortgage in an amount and on terms satisfactory
to the Collateral Agent, delivered to the Collateral Agent.
"Total
Commitment"
means
the sum of the Total Revolving Credit Commitment and the Total Term Loan
Commitment.
"Total
Revolving Credit Commitment"
means
the sum of the amounts of the Lenders' Revolving Credit
Commitments.
"Total
Term Loan A Commitment"
means
the sum of the amounts of the Lenders' Term Loan A Commitments.
"Total
Term Loan B Commitment"
means
the sum of the amounts of the Lenders' Term Loan B Commitments.
-31-
"Total
Term Loan Commitment"
means
the sum of the Total Term Loan A Commitment and the Total Term Loan B
Commitment.
"Transferee"
has the
meaning specified therefor in 1)a)v).
"Uniform
Commercial Code"
has the
meaning specified therefor in 0.
"Unused
Line Fee"
has the
meaning specified therefor in 0.
"Unused
Term Loan B Fee"
has the
meaning specified therefor in 0.
"US
Guarantor"
means
(i) the Borrower,
(ii) each Subsidiary of Maxxcom listed as a "Guarantor" on the signature
pages hereto, and (iii) each other Person which guarantees, pursuant to
0
or
otherwise, all or any part of the Obligations, in each case other than the
Canadian Guarantors.
"US
Loan Party"
means,
collectively, the Borrower
and the
US Guarantors.
"WARN"
has the
meaning specified therefor in 0.
Section
1.02 Terms
Generally .
The
definitions of terms herein shall apply equally to the singular and plural
forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the
same
meaning and effect as the word "shall". Unless the context requires otherwise,
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument
or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed
to
include such Person's successors and assigns, (c) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof,
(d)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules
to,
this Agreement and (e) the words "asset" and "property" shall be construed
to
have the same meaning and effect and to refer to any right or interest in or
to
assets and properties of any kind whatsoever, whether real, personal or mixed
and whether tangible or intangible. References in this Agreement to
"determination" by any Agent include good faith estimates by such Agent (in
the
case of quantitative determinations) and good faith beliefs by such Agent (in
the case of qualitative determinations).
Section
1.03 Accounting
and Other Terms .
Unless
otherwise expressly provided herein, each accounting term used herein shall
have
the meaning given it under GAAP applied on a basis consistent with those used
in
preparing the Financial Statements.
All
terms used in this Agreement which are defined in Article 8 or Article 9 of
the
Uniform Commercial Code as in effect from time to time in the State of New
York
(the "Uniform
Commercial Code")
and
which are not otherwise defined herein shall have the same meanings herein
as
set forth therein,
provided that terms used herein which are defined in the Uniform Commercial
Code
as in effect in the State of New York on the date hereof shall continue to
have
the same meaning notwithstanding any replacement or amendment of such statute
except as any Agent may otherwise determine, and in respect of a Canadian
Guarantor, when used to define a category or categories of Collateral owned
or
hereafter acquired by such Person, such terms shall include the equivalent
category or categories of property set forth in the PPSA.
-32-
Section
1.04 Time
References .
Unless
otherwise indicated herein, all references to time of day refer to Eastern
Standard Time or Eastern daylight saving time, as in effect in New York City
on
such day. For purposes of the computation of a period of time from a specified
date to a later specified date, the word "from" means "from and including"
and
the words "to" and "until" each means "to but excluding"; provided,
however,
that
with respect to a computation of fees or interest payable to any Agent, any
Lender or the L/C Issuer, such period shall in any event consist of at
least one full day.
ARTICLE
II
THE
LOANS
Section
2.01 Commitments .
i)
Subject
to the terms and conditions and relying upon the representations and warranties
herein set forth:
(i) each
Revolving Loan Lender severally agrees to make Revolving Loans to the
Borrower
at any
time and from time to time from the Effective Date to the Final Maturity Date,
or until the earlier reduction of its Revolving Credit Commitment to zero in
accordance with the terms hereof, in an aggregate principal amount of Revolving
Loans at any time outstanding not to exceed the amount of such Lender's
Revolving Credit Commitment;
(ii) each
Term
Loan A Lender severally agrees to make its portion of the Term Loan A to the
Borrower on the Effective Date, in an aggregate principal amount not to exceed
the amount of such Lender's Term Loan A Commitment;
and
(iii) each
Term
Loan B Lender severally agrees to make one or more Term Loans B to the Borrower
at
any
time and from time to time during the period from
the
Effective Date to earlier of (x) June 18, 2009 and (y) the date on which
the
Term
Loan B Commitment is reduced to zero pursuant in accordance with the terms
hereof, in
an
aggregate principal amount not to exceed the amount of such Lender's Term Loan
B
Commitment.
(b) Notwithstanding
the foregoing:
(i) The
aggregate principal amount of Revolving Loans outstanding at any time to the
Borrower shall not exceed the difference between (x) the Total Revolving
Credit Commitment and (y) the sum of (A) aggregate Letter of Credit
Obligations and (B) all Indebtedness of the Loan Parties in respect of existing
Third Party Letters of Credit (which, for the avoidance of doubt, for the
purpose of this Section 2.01(b)(i), shall not be included if such Third Party
Letters of Credit are backstopped by a Letter of Credit or fully cash
collateralized). The Revolving Credit Commitment of each Lender shall
automatically and permanently be reduced to zero on the Final Maturity Date.
Within the foregoing limits, the Borrower may borrow, repay and reborrow, on
or
after the Effective Date and prior to the Final Maturity Date, subject to the
terms, provisions and limitations set forth herein.
-33-
(ii) The
aggregate principal amount of the Term Loan A made on the Effective Date shall
not exceed the Total Term Loan A Commitment. The aggregate principal amount
of
the Term Loan B outstanding at any time shall not exceed the Total Term Loan
B
Commitment. Any principal amount of the Term Loan which is repaid or prepaid
may
not be reborrowed.
(iii) The
aggregate principal amount of all Loans and Letter of Credit Obligations
outstanding at any time to the Borrower shall not exceed the Total
Commitment.
(iv) The
Borrower may borrow Revolving Loans to fund any Permitted Acquisition the
Purchase Price of which is less than $5,000,000, so long as (x) the then unused
and available Total Term Loan B Commitment shall be not less than the amount
of
such requested Revolving Loans, and (y) if the aggregate amount of all such
Revolving Loans exceeds $10,000,000 at any time outstanding, the Borrower shall
immediately borrow a Term Loan B in an amount not less than such excess in
accordance with Section 2.02 and use the proceeds thereof to repay all or a
portion of such Revolving Loans.
(v) Within
30
days after the Effective Date, the Borrower may borrow a Term Loan B and apply
the proceeds thereof to fund the general working capital needs of the Borrower,
provided that the aggregate principal amount of such Term Loan B shall not
exceed $15,000,000.
Section
2.02 Making
the Loans .
ii)
(i) The
Borrower shall give the Administrative Agent (and the Collateral Agent, in
the
case of the Term Loan A) prior written notice in substantially the form of
Exhibit D hereto (a "Notice
of Borrowing"),
not
later than 1:00 P.M. (New York City time) on the date which is, in the case
of
LIBOR Rate Loans, three (3) Business Days prior to the date of and, in the
case
of Reference Rate Loans, the date of, the proposed Revolving Loans or the Term
Loan A (or such shorter period as the Administrative Agent is willing to
accommodate from time to time, but in no event later than 1:00 P.M. (New York
City time) on the borrowing date of the proposed Loan). Such Notice of Borrowing
shall be irrevocable and shall specify (A) the principal amount of the
proposed Loan, (B) whether such Loan is requested to be a Reference Rate
Loan or a LIBOR Rate Loan, (C) whether such Loan is requested to be a Revolving
Loan or the Term Loan A, (D) the use of the proceeds of such proposed Loan,
and (E) the proposed borrowing date, which must be a Business Day, and,
with respect to the Term Loan A, must be the Effective Date. The
Administrative Agent
and
the Lenders may act without liability upon the basis of written, telecopied
or
telephonic notice believed by the Administrative Agent in good faith to be
from
the Borrower (or from any Authorized Officer thereof designated in writing
purportedly from the Borrower to the Administrative Agent). The Borrower hereby
waives the right to dispute the Administrative Agent's record of the terms
of
any such telephonic Notice of Borrowing. The
Administrative Agent and each Lender shall be entitled to rely conclusively
on
any Authorized Officer's authority to request a Loan on behalf of the Borrower
until the Administrative Agent receives written notice to the contrary. The
Administrative Agent and the Lenders shall have no duty to verify the
authenticity of the signature appearing on any written Notice of
Borrowing.
-34-
(ii) The
Borrower shall give the Collateral Agent a Notice of Borrowing, not later than
1:00 P.M. (New York City time) on the date which is three (3) Business Days
prior to the date of the proposed Term Loan B (or such shorter period as the
Collateral Agent is willing to accommodate from time to time, but in no event
later than 1:00 P.M. (New York City time) on the borrowing date of the proposed
Loan). Such Notice of Borrowing shall be irrevocable and shall specify
(A) the principal amount of the proposed Loan, (B) the proposed Loan
is a LIBOR Rate Loan, (C) the proposed Loan is a Term Loan B, (D) the use
of the proceeds of such proposed Loan, and (E) the proposed borrowing date,
which must be a Business Day, and, except as provided in Section 2.01(b)(v),
must
be
the closing date of the Permitted Acquisition all or a portion of the Purchase
Price of which was funded with the proceeds of such Term Loan B.
The
Collateral Agent
and
the Lenders may act without liability upon the basis of written, telecopied
or
telephonic notice believed by the Collateral Agent in good faith to be from
the
Borrower (or from any Authorized Officer thereof designated in writing
purportedly from the Borrower to the Collateral Agent). The Borrower hereby
waives the right to dispute the Collateral Agent's record of the terms of any
such telephonic Notice of Borrowing. The
Collateral Agent and each Lender shall be entitled to rely conclusively on
any
Authorized Officer's authority to request a Loan on behalf of the Borrower
until
the Collateral Agent receives written notice to the contrary. The Collateral
Agent and the Lenders shall have no duty to verify the authenticity of the
signature appearing on any written Notice of Borrowing.
(b) Each
Notice of Borrowing pursuant to this ii)
shall be
irrevocable and the Borrower shall be bound to make a borrowing in accordance
therewith. Each
Revolving Loan shall be made in a minimum amount of $200,000 and shall be in
an
integral multiple of $100,000. Each
Term
Loan B shall be made in
a
minimum amount of $5,000,000 and shall be in an integral multiple of
$500,000.
No more
than 15 LIBOR Rate Loan tranches shall be outstanding at any one time, provided
that no more than 10 LIBOR Rate Loan tranches shall be outstanding at any one
time for the Revolving Loans and no more than 4 LIBOR Rate Loan tranches shall
be outstanding at any one time for the Term Loans B.
(c) (1) Except
as
otherwise provided in this subsection 1)a)ii)(1),
all
Loans under this Agreement shall be made by the Lenders simultaneously and
proportionately to their Pro Rata Shares of the Total Revolving Credit
Commitment, the Total Term Loan A Commitment and the Total Term Loan B
Commitment, as the case may be, it being understood that no Lender shall be
responsible for any default by any other Lender in that other Lender's
obligations to make a Loan requested hereunder, nor shall the Commitment of
any
Lender be increased or decreased as a result of the default by any other Lender
in that other Lender's obligation to make a Loan requested hereunder, and each
Lender shall be obligated to make the Loans required to be made by it by the
terms of this Agreement regardless of the failure by any other
Lender.
(ii) Notwithstanding
any other provision of this Agreement, and in order to reduce the number of
fund
transfers among the Borrower,
the
Agents and the Lenders, the Borrower,
the
Agents and the Lenders agree that the Administrative Agent may (but shall not
be
obligated to), and the Borrower
and the
Lenders hereby irrevocably authorize the Administrative Agent to, fund, on
behalf of the Revolving Loan Lenders, Revolving Loans pursuant to 1)a)i),
subject
to the procedures for settlement set forth in subsection 1)a)ii)(2);
provided,
however,
that
(a) the Administrative Agent shall in no event fund any such Revolving
Loans if the Administrative Agent shall have received written notice from the
Collateral Agent or the Required Lenders on the Business Day prior to the date
of the proposed Revolving Loan that one or more of the conditions precedent
contained in 0
will not
be satisfied at the time of the proposed Revolving Loan, and (b) the
Administrative Agent shall not otherwise be required to determine that, or
take
notice whether, the conditions precedent in 0
have
been satisfied. If the Borrower
gives a
Notice of Borrowing requesting a Revolving Loan and the Administrative Agent
elects not to fund such Revolving Loan on behalf of the Revolving Loan Lenders,
then promptly after receipt of the Notice of Borrowing requesting such Revolving
Loan, the Administrative Agent shall notify each Revolving Loan Lender of the
specifics of the requested Revolving Loan and that it will not fund the
requested Revolving Loan on behalf of the Revolving Loan Lenders. If the
Administrative Agent notifies the Revolving Loan Lenders that it will not fund
a
requested Revolving Loan on behalf of the Revolving Loan Lenders, each Revolving
Loan Lender shall make its Pro Rata Share of the Revolving Loan available to
the
Administrative Agent,
in
immediately available funds, in the Administrative Agent's Account no later
than
3:00 p.m. (New York City time) (provided that the
Administrative Agent
requests payment from such Revolving Loan Lender not later than 1:00 p.m.
(New York City time)) on the date of the proposed Revolving Loan. The
Administrative Agent will make the proceeds of such Revolving Loans available
to
the Borrower
on the
day of the proposed Revolving Loan by causing an amount, in immediately
available funds, equal to the proceeds of all such Revolving Loans received
by
the Administrative Agent
in
the Administrative Agent's Account or the amount funded by the
Administrative Agent
on
behalf of the Revolving Loan Lenders to be deposited in an account designated
by
the Borrower
which account, unless otherwise so directed by the Borrower in writing, shall
be
the Concentration Account.
-35-
(iii) If
the
Administrative Agent
has
notified the Revolving Loan Lenders that the Administrative Agent,
on
behalf of the Revolving Loan Lenders, will not fund a particular Revolving
Loan
pursuant to subsection 0,
the
Administrative Agent
may
assume that each such Revolving Loan Lender has made such amount available
to
the Administrative Agent
on
such day and the Administrative Agent,
in
its sole discretion, may, but shall not be obligated to, cause a corresponding
amount to be made available to the Borrower
on such
day. If the Administrative Agent
makes such corresponding amount available to the Borrower
and such
corresponding amount is not in fact made available to the
Administrative Agent
by
any such Revolving Loan Lender, the Administrative Agent
shall be entitled to recover such corresponding amount on demand from such
Revolving Loan Lender together with interest thereon, for each day from the
date
such payment was due until the date such amount is paid to the
Administrative Agent,
at
the Federal Funds Rate for three Business Days and thereafter at the Reference
Rate. During the period in which such Revolving Loan Lender has not paid such
corresponding amount to the Administrative Agent,
notwithstanding anything to the contrary contained in this Agreement or any
other Loan Document, the amount so advanced by the Administrative Agent
to
the Borrower
shall,
for all purposes hereof, be a Revolving Loan made by the Administrative Agent
for its own account. Upon any such failure by a Revolving Loan Lender to pay
the
Administrative Agent,
the Administrative Agent
shall promptly thereafter notify the Borrower
of such
failure and the Borrower
shall
immediately pay such corresponding amount to the Administrative Agent
for
its own account.
-36-
(iv) Nothing
in this subsection 1)a)ii)(1)
shall be
deemed to relieve any Revolving Loan Lender from its obligations to fulfill
its
Revolving Credit Commitment hereunder or to prejudice any rights that the
Administrative Agent or the Borrower
may have
against any Revolving Loan Lender as a result of any default by such Revolving
Loan Lender hereunder.
(d) (2) With
respect to all periods for which the Administrative Agent has funded Revolving
Loans pursuant to subsection 1)a)ii)(1),
on
Friday of each week, or if the applicable Friday is not a Business Day, then
on
the following Business Day, or such shorter period as the Administrative Agent
may from time to time select (any such week or shorter period being herein
called a "Settlement
Period"),
the
Administrative Agent shall notify each Revolving Loan Lender of the unpaid
principal amount of the Revolving Loans outstanding as of the last day of each
such Settlement Period. In the event that such amount is greater than the unpaid
principal amount of the Revolving Loans outstanding on the last day of the
Settlement Period immediately preceding such Settlement Period (or, if there
has
been no preceding Settlement Period, the amount of the Revolving Loans made
on
the date of such Revolving Loan Lender's initial funding), each Revolving Loan
Lender shall promptly (and in any event not later than 2:00 p.m. (New York
City time) if the Administrative Agent requests payment from such Lender not
later than 12:00 noon (New York City time) on such day) make available to
the Administrative Agent its Pro Rata Share of the difference in immediately
available funds. In the event that such amount is less than such unpaid
principal amount, the Administrative Agent shall promptly pay over to each
Revolving Loan Lender its Pro Rata Share of the difference in immediately
available funds. In addition, if the Administrative Agent shall so request
at
any time when a Default or an Event of Default shall have occurred and be
continuing, each Revolving Loan Lender shall promptly remit to the
Administrative Agent or, as the case may be, the Administrative Agent shall
promptly remit to each Revolving Loan Lender, sufficient funds to adjust the
interests of the Revolving Loan Lenders in the then outstanding Revolving Loans
to such an extent that, after giving effect to such adjustment, each such
Revolving Loan Lender's interest in the then outstanding Revolving Loans will
be
equal to its Pro Rata Share thereof. The obligations of the Administrative
Agent
and each Revolving Loan Lender under this subsection 1)a)ii)(2)
shall be
absolute and unconditional. Each Revolving Loan Lender shall only be entitled
to
receive interest on its Pro Rata Share of the Revolving Loans which have been
funded by such Revolving Loan Lender.
(ii) In
the
event that any Revolving Loan Lender fails to make any payment required to
be
made by it pursuant to subsection 1)a)ii)(2),
the
Administrative Agent shall be entitled to recover such corresponding amount
on
demand from such Revolving Loan Lender together with interest thereon, for
each
day from the date such payment was due until the date such amount is paid to
the
Administrative Agent, at the Federal Funds Rate for three Business Days and
thereafter at the Reference Rate. During the period in which such Revolving
Loan
Lender has not paid such corresponding amount to the Administrative Agent,
notwithstanding anything to the contrary contained in this Agreement or any
other Loan Document, the amount so advanced by the Administrative Agent to
the
Borrower
shall,
for all purposes hereof, be a Revolving Loan made by the Administrative Agent
for its own account. Upon any such failure by a Revolving Loan Lender to pay
the
Administrative Agent, the Administrative Agent shall promptly thereafter notify
the Borrower
of such
failure and the Borrower
shall
immediately pay such corresponding amount to the Administrative Agent for its
own account. Nothing in this subsection 0
shall be
deemed to relieve any Revolving Loan Lender from its obligation to fulfill
its
Revolving Credit Commitment hereunder or to prejudice any rights that the
Administrative Agent or the Borrower
may have
against any Revolving Loan Lender as a result of any default by such Revolving
Loan Lender hereunder.
-37-
Section
2.03 Repayment
of Loans; Evidence of Debt .
iii) The
outstanding principal of all Revolving Loans shall be due and payable on the
Final Maturity Date.
(b) The
outstanding principal of the Term Loans shall be repaid in full on the earlier
of (i) the termination of the Total Revolving Credit Commitment and (ii) the
Final Maturity Date.
(c) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the Indebtedness of the Borrower
to such
Lender resulting from each Loan made by such Lender, including the amounts
of
principal and interest payable and paid to such Lender from time to time
hereunder.
(d) The
Administrative Agent (and the Collateral Agent, in the case of the Term Loans)
shall maintain accounts in which it shall record (i) the amount of each Loan
made hereunder, (ii) the amount of any principal or interest due and payable
or
to become due and payable from the Borrower
to each
Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent (or the Collateral Agent, as applicable) hereunder for
the
account of the Lenders and each Lender's share thereof.
(e) The
entries made in the accounts maintained pursuant to paragraph (c) or (d) of
this
Section shall be prima facie
evidence
of the existence and amounts of the obligations recorded therein; provided
that the
failure of any Lender or the Administrative Agent (or the Collateral Agent,
as
applicable) to maintain such accounts or any error therein shall not in any
manner affect the obligation of the Borrower
to repay
the Loans in accordance with the terms of this Agreement.
(f) Any
Lender may request that Loans made by it be evidenced by a promissory note.
In
such event, the Borrower
shall
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 a form furnished by the Collateral Agent and reasonably acceptable
to the Borrower. Thereafter, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to
0)
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
2.04 Interest .
iv) Revolving
Loans.
Each
Revolving Loan shall bear interest on the principal amount thereof from time
to
time outstanding, from the date of such Loan until such principal amount becomes
due, at a rate per annum equal to the LIBOR Rate plus 2.50%.
or
the
Reference Rate plus 1.10%, as applicable.
(b) Term
Loan.
The
Term Loan shall bear interest on the principal amount thereof from time to
time
outstanding, from the date of the Term Loan until such principal amount becomes
due, at a rate per annum equal to the LIBOR Rate plus the Applicable Margin.
The
portion of the Term
Loan
that
converts into or continues as a Reference Rate Loan pursuant to Section 2.09
shall bear interest on the principal amount thereof from time to time
outstanding from the date such Term
Loan
becomes
a
Reference Rate Loan pursuant to this Agreement until such principal amount
becomes due, at a rate per annum equal to the Reference Rate plus the
Applicable Margin.
-38-
(c) Default
Interest.
To the
extent permitted by law, upon the occurrence and during the continuance of
an
Event of Default that remains in existence for more than 30 days (or immediately
upon the occurrence and during the continuation of an
Event
of Default described in 0
or
0
with
respect to any Loan Party),
(i) the
principal of, and all accrued and unpaid interest on, all Loans, fees,
indemnities, outstanding Reimbursement Obligations or any other Obligations
of
the Loan Parties under this Agreement and the other Loan Documents, shall bear
interest, from the date such Event of Default occurred until the date such
Event
of Default is cured or waived in writing in accordance herewith, at a rate
per
annum equal at all times to the Post-Default Rate, and (ii) the Letter of Credit
Fees shall be increased by 3.00 percentage points above the per annum rate
otherwise applicable hereunder.
(d) Interest
Payment.
Interest on each Loan shall be payable monthly, in arrears, on the first day
of
each month, commencing on the first day of the month following the month in
which such Loan is made and at maturity (whether upon demand, by acceleration
or
otherwise). Interest at the Post-Default Rate shall be payable on demand. The
Borrower hereby authorizes the Administrative Agent to, and the Administrative
Agent may, from time to time, charge the Loan Account pursuant to 1)a)x)
with the
amount of any interest payment due hereunder.
(e) General.
Interest shall be computed on the basis of a year of 360 days for the actual
number of days, including the first day but excluding the last day,
elapsed.
(f) Interest
Act (Canada); Criminal Rate of Interest; Nominal Rate of
Interest.
Notwithstanding anything to the contrary contained in this Agreement or in
any
other Loan Document:
(i) Whenever
interest payable by a Canadian Guarantor is calculated on the basis of a period
which is less than the actual number of days in a calendar year, each rate
of
interest determined pursuant to such calculation is, for the purposes of the
Interest Act (Canada), equivalent to such rate multiplied by the actual number
of days in the calendar year in which such rate is to be ascertained and divided
by the number of days used as the basis of such calculation.
(ii) In
no
event shall the aggregate "interest" (as defined in Section 347 of the Criminal
Code, R.S.C. 1985, c.C-46, as the same shall be amended, replaced or re-enacted
from time to time) payable by a Canadian Guarantor to any Agent or any Lender
under this Agreement or any other Loan Document exceed the effective annual
rate
of interest on the "credit advanced" (as defined in that section) under this
Agreement or such other Loan Document lawfully permitted under that section
and,
if any payment, collection or demand pursuant to this Agreement or any other
Loan Document in respect of "interest" (as defined in that section) is
determined to be contrary to the provisions of that section, such payment,
collection or demand shall be deemed to have been made by mutual mistake of
such
Agent, such Lenders and such Canadian Guarantor and the amount of such payment
or collection shall be refunded by such Agent and such Lenders to such Canadian
Guarantor. For the purposes of this Agreement and each other Loan Document
to
which Canadian Guarantor is a party, the effective annual rate of interest
payable by Canadian Guarantor shall be determined in accordance with generally
accepted actuarial practices and principles over the term of the Loans on the
basis of annual compounding for the lawfully permitted rate of interest and,
in
the event of dispute, a certificate of a Fellow of the Canadian Institute of
Actuaries appointed by the Administrative Agent for the account of such Canadian
Guarantor will be conclusive for the purpose of such determination in the
absence of evidence to the contrary.
-39-
(iii) All
calculations of interest payable by a Canadian Guarantor under this Agreement
or
any other Loan Document are to be made on the basis of the nominal interest
rate
described herein and therein and not on the basis of effective yearly rates
or
on any other basis which gives effect to the principle of deemed reinvestment
of
interest. The parties acknowledge that there is a material difference between
the stated nominal interest rates and the effective yearly rates of interest
and
that they are capable of making the calculations required to determine such
effective yearly rates of interest.
Section
2.05 Reduction
of Commitment; Prepayment of Loans .
(a) Reduction
of Commitments.
(i) Revolving
Credit Commitments.
The
Total Revolving Credit Commitment shall terminate on the Final Maturity
Date. The
Borrower may, after the second anniversary of the Effective Date, reduce the
Total Revolving Credit Commitment to an amount not less than $30,000,000 to
the
extent that after giving effect to such reduction, the Total Revolving Credit
Commitment shall not be less than the sum of (A) the aggregate unpaid
principal amount of all Revolving Loans then outstanding, (B) the aggregate
principal amount of all Revolving Loans not yet made as to which a Notice of
Borrowing has been given by the Borrower under Section 2.02, (C) the Letter
of Credit Obligations at such time and (D) the stated amount of all Letters
of
Credit not yet issued as to which a request has been made and not withdrawn.
Each such reduction shall be in an amount which is an integral multiple of
$1,000,000, shall be made by providing not less than five (5) Business Days'
prior written notice to the Administrative Agent, shall be irrevocable and
shall
be accompanied by the payment of the Applicable Prepayment Premium (if any)
on
the amount of the Total Revolving Credit Commitment so reduced. Once reduced,
the Total Revolving Credit Commitment may not be increased. Each such reduction
of the Total Revolving Credit Commitment shall reduce the Revolving Credit
Commitment of each Lender proportionately in accordance with its Pro Rata Share
thereof.
(ii) Term
Loan A.
The
Total Term Loan A Commitment shall terminate at 5:00 p.m. (New York City
time) on the Effective Date.
(iii) Term
Loan B.
The
Total Term Loan B Commitment shall be reduced by the amount of each borrowing
of
a Term Loan B and shall terminate at 5:00 p.m. (New York City time) on the
earlier of (x) June 18, 2009, and (y) the date on which the
Term
Loan B Commitment is reduced to zero. Once
reduced, the Term Loan B Commitment may not be increased. Such
reduction of the Total Term Loan B Commitment shall reduce the Term Loan B
Commitment of each Lender proportionately in accordance with its Pro Rata Share
thereof.
-40-
(b) Optional
Prepayment.
(i) Revolving
Loans.
The
Borrower
may
prepay without penalty or premium the principal of any Revolving Loan, in whole
or in part. The Borrower
shall
not be permitted to prepay any portion of the principal of any Term Loan until
all Revolving Loan Obligations and Letter of Credit Obligations are paid in
full
(or, to the extent such Obligations are contingent, such Obligations are cash
collateralized in an amount equal to 102.5% of the aggregate undrawn amount
of
all outstanding Letters of Credit) and all Revolving Credit Commitments have
been terminated.
(ii) Prepayment
In Full.
The
Borrower
may,
upon at least sixty (60) days prior written notice to the Agents, terminate
this
Agreement by paying to the Administrative Agent and the Collateral Agent, as
applicable, in cash, the Obligations (including either (A) providing cash
collateral to be held by the Administrative Agent in an amount equal to 102.5%
of the aggregate undrawn amount of all outstanding Letters of Credit or (B)
causing the original Letters of Credit to be returned to the Administrative
Agent), in full, together
with the Applicable Prepayment Premium.
If the
Borrower has sent a notice of termination pursuant to this clause (ii), then
the
Lenders' obligations to extend credit hereunder shall terminate and the
Borrower
shall be
obligated to repay the Obligations (including either (A) providing cash
collateral to be held by the Administrative Agent in an amount equal to 102.5%
of the aggregate undrawn amount of all outstanding Letters of Credit or (B)
causing the original Letters of Credit to be returned to the Administrative
Agent), in full, together
with the Applicable Prepayment Premium (if any), on
the
date set forth as the date of termination of this Agreement in such
notice.
(c) Mandatory
Prepayment.
(i) The
Borrower
will
immediately prepay the Revolving Loans at any time when the aggregate principal
amount of all Revolving Loans plus the outstanding amount of all Letter of
Credit Obligations plus the aggregate amount of all Indebtedness of the Loan
Parties in respect of Third Party Letters of Credit exceeds the result of the
Total Revolving Credit Commitment, to the full extent of any such excess. If
at
any time after the Borrower
has
complied with the first sentence of this 0,
the
aggregate Letter of Credit Obligations is greater than the Total Revolving
Credit Commitment, the Borrower shall provide cash collateral to the
Administrative Agent in an amount equal to 102.5% of such excess, which cash
collateral shall be deposited in the Letter of Credit Collateral Account and,
provided that no Event of Default shall have occurred and be continuing,
returned to the Borrower, at such time as the aggregate Letter of Credit
Obligations plus the aggregate principal amount of all outstanding Revolving
Loans no longer exceeds the Total Revolving Credit Commitment.
(ii) The
Borrower will immediately prepay the outstanding principal amount of the Term
Loan in the event that the Total Revolving Credit Commitment is terminated
for
any reason, but not until all Revolving Loan Obligations and Letter
of
Credit Obligations are
first
paid in full (or,
to
the extent such Obligations are contingent, such Obligations are cash
collateralized in an amount equal to 102.5% of the aggregate undrawn amount
of
all outstanding Letters of Credit).
-41-
(iii) The
Administrative Agent shall on each Business Day apply all funds transferred
to
or deposited in the Administrative Agent's Account, to the payment, in whole
or
in part, of the outstanding principal amount of the Revolving
Loans.
(iv) Immediately
upon any Disposition by any Loan Party or its Subsidiaries pursuant to
0,
the
Borrower
shall
prepay the Obligations in accordance with Section 2.05(d) in an amount equal
to
100% of the Net Cash Proceeds received by such Person in connection with such
Disposition. Notwithstanding
the foregoing and provided no Event of Default has occurred and is continuing,
Net
Cash
Proceeds received by such Person in connection with such Disposition shall
not
be required to be so applied to the extent (A) the Borrower delivers to the
Agents promptly following such Disposition a certificate stating that a Loan
Party or a Subsidiary thereof intends to use such Net Cash Proceeds to
consummate a Permitted Acquisition within two hundred and seventy (270) days
of
receipt of such Net Cash Proceeds and (B) such Person in fact reinvests such
Net
Cash Proceeds within such two hundred and seventy (270) day period. Pending
such
reinvestments, such Loan Party shall (1) apply
such
Net
Cash Proceeds
as a
prepayment of the applicable Revolving Loans but not as a permanent reduction
in
the Total Revolving Loan Commitment (and the Administrative Agent shall,
concurrently with such prepayment, establish and maintain a reserve against
the
applicable Total Revolving Credit Commitment in an amount equal to such
prepayment) and (2) after the Revolving Loans have been prepaid, the
remainder of such
Net
Cash Proceeds
shall be
deposited in a cash collateral account in which the Collateral Agent has a
perfected first priority security interest for the benefit of the Agents, the
Lenders and the Bank Product Providers. Any
Net
Cash Proceeds not so reinvested shall be applied to permanently prepay the
Loans. Nothing
contained in this subsection (iv) shall permit any Loan Party or any of its
Subsidiaries to make a Disposition of any property other than in accordance
with
0.
(v) Upon
the
issuance or incurrence by any Loan Party or any of its Subsidiaries of any
Indebtedness (other than Permitted Indebtedness), or the sale or issuance by
any
Loan Party or any of its Subsidiaries of any shares of its Capital Stock
(excluding shares of Capital Stock issued to employees and management personnel
of any Loan Party), the Borrower
shall
prepay the Obligations in accordance with Section 2.05(d) in an amount equal
to
100% of the Net Cash Proceeds received by such Person in connection therewith.
The provisions of this subsection 0
shall
not be deemed to be implied consent to any such issuance, incurrence or sale
otherwise prohibited by the terms and conditions of this Agreement.
(vi) Upon
the
receipt by any Loan Party or any of its Subsidiaries of any Extraordinary
Receipts, the Borrower
shall
prepay the Obligations in accordance with Section 2.05(d) in an amount equal
to
100% of such Extraordinary Receipts, net of any reasonable expenses incurred
in
collecting such Extraordinary Receipts.
-42-
(vii) If
the
Parent were to terminate the services of Nadal Management, Inc. and ▇▇▇▇▇ ▇▇▇▇▇
without "Cause" (as defined in the Management Services Agreement), and a
successor Chief Executive Officer reasonably acceptable to the Collateral Agent
(acting in good faith) is not appointed by the Parent's Board of Directors
within four (4) months of such termination without Cause (the "Replacement
Period"),
the
Required Lenders may, during the two (2) month period following the end of
the
Replacement Period, notify the Borrower that the Required Lenders have elected
to terminate this Agreement and require the Borrower, effective on the eight
(8)
month anniversary of the end of the Replacement Period, to prepay the
Obligations in full in cash (including either (A) providing cash collateral
to
be held by the Administrative Agent in an amount equal to 102.5% of the
aggregate undrawn amount of all outstanding Letters of Credit or (B) causing
the
original Letters of Credit to be returned to the Administrative
Agent).
(viii) For
the
avoidance of doubt, no Applicable
Prepayment Premium shall be paid in connection with any prepayment made in
accordance with this Section 2.05(c).
(d) Application
of Payments.
Each
prepayment pursuant to subsections 0,
0,
and
0
above
shall be applied, first, to the Revolving Loans until paid in full, and second,
ratably to the Term Loans.
(e) Interest
and Fees.
Any
prepayment made pursuant to this 0
(other
than prepayments made pursuant to subsections 0
and
0
of this
Section 2.05) shall be accompanied by accrued interest on the principal
amount being prepaid to the date of prepayment, and if such prepayment would
reduce the amount of the outstanding Loans to zero at a time when the Total
Revolving Credit Commitment has been terminated, such prepayment shall be
accompanied by the payment of all fees accrued to such date pursuant to
0.
Any
prepayment of a LIBOR Rate Loan shall be accompanied by any payment required
under Section 2.10.
(f) Cumulative
Prepayments.
Except
as otherwise expressly provided in this 0,
payments with respect to any subsection of this 0
are in
addition to payments made or required to be made under any other subsection
of
this 0.
Section
2.06 Fees .
(a) Fee
Letter.
The
Borrower shall pay to the Collateral Agent the fees set forth in the Fee Letter
as and when due and payable under the terms of the Fee Letter.
(b) Unused
Line Fee.
From
and after the Effective Date and until the Final Maturity Date, the Borrower
shall pay to the Administrative Agent for the account of the Revolving Loan
Lenders, in accordance with their
Pro
Rata Shares,
an
unused line fee (the "Unused
Line Fee"),
which
shall accrue at the rate per annum of 0.5% on the excess, if any, of the Total
Revolving Credit Commitment over the sum of the average principal amount of
all
Revolving Loans and Letter of Credit Obligations outstanding from time to time
and shall be payable monthly in arrears on the first day of each month
commencing on July 1, 2007.
(c) Unused
Term Loan B Fee.
From
and after the Effective Date and until the
date
of termination of the Total Term Loan B Commitment,
the
Borrower shall pay to the Collateral Agent for the account of the Term Loan
B
Lenders, in accordance with their Pro Rata Shares, an unused Term Loan B fee
(the "Unused
Term Loan B Fee"),
which
shall accrue at the rate per annum of 0.5% on the excess, if any, of the Total
Term Loan B Commitment over
the
average principal amount of all Term Loans B outstanding from time to time
and
shall
be payable monthly in arrears on the first day of each month commencing July
1,
2007.
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Section
2.07 Securitization .
The
Loan
Parties hereby acknowledge that the Lenders and their Affiliates may sell or
securitize the Loans (a "Securitization")
through the pledge of the Loans as collateral security for loans to the Lenders
or their Affiliates or through the sale of the Loans or the issuance of direct
or indirect interests in the Loans, which loans to the Lenders or their
Affiliates or direct or indirect interests will be rated by ▇▇▇▇▇'▇, Standard
& Poor's or one or more other rating agencies (the "Rating
Agencies").
The
Loan Parties shall reasonably cooperate with the Lenders and their Affiliates
to
effect the Securitization including, without limitation, by (a) amending
this Agreement and the other Loan Documents, and executing such additional
documents, as reasonably requested by the Lenders in connection with the
Securitization, provided that
(i) any such amendment or additional documentation does not impose
additional costs on the Loan Parties and (ii) any such amendment or
additional documentation does not adversely affect the rights, or increase
the
obligations, of the Loan Parties under the Loan Documents or change or affect
in
a manner adverse to the Loan Parties the financial terms of the Loans, and
(b) providing such information as may be reasonably requested by the
Lenders in connection with the rating of the Loans or the
Securitization.
Section
2.08 Taxes .
v)
Any and
all payments by any Loan Party hereunder or under any other Loan Document shall
be made free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding
taxes
imposed on the net income of any Agent, any Lender or the L/C Issuer (or any
transferee or assignee thereof, including a participation holder (any such
entity, a "Transferee"))
by
the jurisdiction in which such Person is organized or has its principal lending
office (all such nonexcluded taxes, levies, imposts, deductions, charges
withholdings and liabilities, collectively or individually, "Taxes").
If
any Loan Party shall be required to deduct any Taxes from or in respect of
any
sum payable hereunder to any Agent, any Lender or the L/C Issuer (or any
Transferee), (i) the sum payable shall be increased by the amount (an
"additional
amount")
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.08) such Agent,
such
Lender or the L/C Issuer (or such Transferee) shall receive an amount equal
to
the sum it would have received had no such deductions been made, (ii) such
Loan
Party shall make such deductions and (iii) such Loan Party shall pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In
addition, each Loan Party agrees to pay to the relevant Governmental Authority
in accordance with applicable law any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies that
arise from any payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or any other
Loan
Document ("Other
Taxes").
Each
Loan Party shall deliver to each Agent, each Lender and the L/C Issuer official
receipts in respect of any Taxes or Other Taxes payable hereunder promptly
after
payment of such Taxes or Other Taxes.
-44-
(c) The
Loan
Parties hereby jointly and severally indemnify and agree to hold each Agent,
each Lender and the L/C Issuer harmless from and against Taxes and Other Taxes
(including, without limitation, Taxes and Other Taxes imposed on any amounts
payable under this Section 2.08) paid by such Person, whether or not such Taxes
or Other Taxes were correctly or legally asserted. Such indemnification shall
be
paid within 10 days from the date on which any such Person makes written demand
therefore specifying in reasonable detail the nature and amount of such Taxes
or
Other Taxes.
(d) Each
Lender (or Transferee) that is organized under the laws of a jurisdiction
outside the United States (a "Non-U.S.
Lender")
agrees
that it shall, no later than the Effective Date (or, in the case of a Lender
which becomes a party hereto pursuant to 0
hereof
after the Effective Date, promptly after the date upon which such Lender becomes
a party hereto) deliver to the Agents (or, in the case of an assignee of a
Lender which (x) is an Affiliate of such Lender or a Related Fund of such
Lender and (y) does not deliver an Assignment and Acceptance to the
Administrative Agent (or the Collateral Agent, as applicable) pursuant to the
last sentence of Section 12.07(b) for recordation pursuant to Section 12.07(c),
to the assigning Lender only, and in the case of a participant, to the Lender
granting the participation only) one properly completed and duly executed copy
of either U.S. Internal Revenue Service Form ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8IMY or any
subsequent versions thereof or successors thereto, in each case claiming
complete exemption from, or reduced rate of, U.S. Federal withholding tax and
payments of interest hereunder. In addition, in the case of a Non-U.S. Lender
claiming exemption from U.S. Federal withholding tax under Section 871(h) or
881(c) of the Internal Revenue Code, such Non-U.S. Lender hereby represents
to
the Agents and the Borrower
that
such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the
Internal Revenue Code, is not a 10% shareholder (within the meaning of Section
871(h)(3)(B) of the Internal Revenue Code) of the Parent and is not a controlled
foreign corporation related to the Parent (within the meaning of Section
864(d)(4) of the Internal Revenue Code), and such Non-U.S. Lender agrees that
it
shall promptly notify the Agents in the event any such representation is no
longer accurate. Such forms shall be delivered by each Non-U.S. Lender on or
before the date it becomes a party to this Agreement (or, in the case of a
Transferee that is a participation holder, on or before the date such
participation holder becomes a Transferee hereunder) and on or before the date,
if any, such Non-U.S. Lender changes its applicable lending office by
designating a different lending office (a "New
Lending Office").
In
addition, such Non-U.S. Lender shall deliver such forms within 20 days after
receipt of a written request therefor from any Agent, the assigning Lender
or
the Lender granting a participation, as applicable. Notwithstanding any other
provision of this v),
a
Non-U.S. Lender shall not be required to deliver any form pursuant to this
v)0
that
such Non-U.S. Lender is not legally able to deliver.
(e) The
Loan
Parties shall not be required to indemnify any Non-U.S. Lender, or pay any
additional amounts to any Non-U.S. Lender, in respect of United States Federal
withholding tax pursuant to this Section 2.08 to the extent that (i) the
obligation to withhold amounts with respect to United States Federal withholding
tax existed on the date such Non-U.S. Lender became a party to this Agreement
(or, in the case of a Transferee that is a participation holder, on the date
such participation holder became a Transferee hereunder) or, with respect to
payments to a New Lending Office, the date such Non-U.S. Lender designated
such
New Lending Office with respect to a Loan; provided,
however,
that
this clause (i) shall not apply to the extent the indemnity payment or
additional amounts any Transferee, or Lender (or Transferee) through a New
Lending Office, would be entitled to receive (without regard to this clause
(i))
do not exceed the indemnity payment or additional amounts that the Person making
the assignment, participation or transfer to such Transferee, or Lender (or
Transferee) making the designation of such New Lending Office, would have been
entitled to receive in the absence of such assignment, participation, transfer
or designation, or (ii) the obligation to pay such additional amounts would
not
have arisen but for a failure by such Non-U.S. Lender to comply with the
provisions of clause (d) above.
-45-
(f) Any
Agent, any Lender or the L/C Issuer (or Transferee) claiming any indemnity
payment or additional payment amounts payable pursuant to this Section 2.08
shall use reasonable efforts (consistent with legal and regulatory restrictions)
to file any certificate or document reasonably requested in writing by the
Borrower
or to
change the jurisdiction of its applicable lending office if the making of such
a
filing or change would avoid the need for or reduce the amount of any such
indemnity payment or additional amount that may thereafter accrue, would not
require such Agent, such Lender or the L/C Issuer (or Transferee) to disclose
any information such Agent, such Lender or the L/C Issuer (or Transferee) deems
confidential and would not, in the sole determination of such Agent, such Lender
or the L/C Issuer (or Transferee), be otherwise disadvantageous to such Agent,
such Lender or the L/C Issuer (or Transferee).
(g) The
obligations of the Loan Parties under this Section 2.08 shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
Section
2.09 LIBOR
Not Determinable; Illegality .
vi)
In the
event, and on each occasion, that on or before the day on which LIBOR is to
be
determined for a borrowing that is to include LIBOR Rate Loans, the
Administrative Agent (or the Collateral Agent, with respect the Term Loans)
has
determined in good faith that, or has been advised by the Required Lenders
that,
(i) LIBOR cannot be reasonably determined for any reason or (ii) Dollar deposits
in the principal amount of the applicable LIBOR Rate Loans are not available
in
the interbank eurodollar market where the eurodollar and foreign currency and
exchange operations in respect of the Lenders' LIBOR Rate Loans are then being
conducted, the Administrative Agent (or the Collateral Agent, as applicable)
shall, as soon as practicable thereafter, give written notice of such
determination to the Borrower
and the
other Lenders. In the event of any such determination, any request by the
Borrower
for a
LIBOR Rate Loan pursuant to Section 2.02 shall, until, (i) in the case of such
a
determination by the Required Lenders, the Administrative Agent (or
the
Collateral Agent, as applicable) has
been
advised by the Required Lenders and the Administrative Agent (or the Collateral
Agent, as applicable) has so advised the Borrower
that, or
(ii) in the case of a determination by the Administrative Agent (or the
Collateral Agent, as applicable), the Administrative Agent (or the Collateral
Agent, as applicable) has advised the Borrower
and the
other Lenders that, the circumstances giving rise to such notice no longer
exist, be deemed to be a request for a Reference Rate Loan. Each determination
by the Administrative Agent (or the Collateral Agent, as applicable) and/or
the
Required Lenders hereunder shall be conclusive and binding absent manifest
error.
(b) In
the
event that after the Effective Date, it shall be unlawful for any Lender to
make, maintain or fund any LIBOR Rate Loan as contemplated by this Agreement,
then such Lender shall promptly give notice thereof to the Administrative Agent
(or the Collateral Agent, with respect to the Term Loans) and the Borrower
describing such illegality in reasonable detail. Effective immediately upon
the
giving of such notice, the obligation of such Lender to make LIBOR Rate Loans
shall be suspended for the duration of such illegality and, if and when such
illegality ceases to exist, such suspension shall cease, and such Lender shall
notify the Administrative Agent (or the Collateral Agent, as applicable) and
the
Borrower.
If any
such change shall make it unlawful for any Lender to maintain any outstanding
LIBOR Rate Loan as a LIBOR Rate Loan, such Lender shall, upon the happening
of
such event, notify the Administrative Agent (or the Collateral Agent, as
applicable) and the Borrower,
and
such Lender's Loans
then outstanding as LIBOR Rate Loans, if any, shall be converted automatically
to Reference Rate Loans immediately,
or if permitted by applicable law, rule, regulation, order, decree,
interpretation, request or directive, at the end of the Interest Period for
such
LIBOR Rate Loan.
-46-
Section
2.10 Indemnity .
vii)
The Loan
Parties hereby jointly and severally indemnify each Lender against any loss
or
expense that such Lender actually sustains or incurs (including, without
limitation, any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund or
maintain any LIBOR Rate Loan and including loss of anticipated profits) as
a
consequence of (i) any failure by the Loan Parties to fulfill on the date of
any
borrowing hereunder the applicable conditions set forth in Article VI, (ii)
any
failure by the Borrower
to
borrow any LIBOR Rate Loan hereunder, to convert any Reference Rate Loan into
a
LIBOR Rate Loan or to continue a LIBOR Rate Loan as such after notice of such
borrowing, conversion or continuation has been given pursuant to Section 2.02
hereof, (iii) any payment, prepayment (mandatory or optional) or conversion
of a
LIBOR Rate Loan required by any provision of this Agreement or otherwise made
on
a date other than the last day of the Interest Period, (iv) any default in
payment or prepayment of the principal amount of any LIBOR Rate Loan or any
part
thereof or interest accrued thereon, as and when due and payable (at the due
date thereof, by notice of prepayment or otherwise), or (v) the occurrence
of
any Event of Default, including, in each such case, any loss (including, without
limitation, loss of anticipated profits) or reasonable expense sustained or
incurred in liquidating or employing deposits from third parties acquired to
effect or maintain such Loan or any part thereof as a LIBOR Rate Loan. Such
loss
or reasonable expense shall include but not be limited to an amount equal to
the
excess, if any, as reasonably determined by such Lender, of (i) its cost of
obtaining the funds for the Loan being paid or prepaid or converted or continued
or not borrowed or converted or continued (based on LIBOR applicable thereto)
for the period from the date of such payment, prepayment, conversion,
continuation or failure to borrow, convert or continue on the last day of the
Interest Period for such Loan (or, in the case of a failure to borrow, convert
or continue, the last day of the Interest Period for such Loan that would have
commenced on the date of such failure to borrow, convert or continue) over
(ii)
the amount of interest (as reasonably determined by such Lender) that would
be
realized by such Lender in re-employing in the interbank LIBOR market for a
comparable Interest Period the funds so paid, prepaid, converted or continued
or
not borrowed, converted or continued for the Interest Period. 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 2.10 and the basis for
the determination of such amount or amounts shall be delivered to the
Borrower
and
shall be conclusive and binding absent manifest error.
-47-
(b) Notwithstanding
paragraph (a) of this Section 2.10, the Administrative Agent (or the Collateral
Agent, as applicable) will use reasonable efforts to minimize or reduce any
such
loss or expense resulting from the mandatory prepayments required by Section
2.05(c) of this Agreement by applying all payments and prepayments to Reference
Rate Loans prior to any application of payments to LIBOR Rate Loans, provided
that nothing in this Section 2.10(b) shall affect the order of application
of
payments as set forth in Section 2.05(b), (c) and (d) or Section 4.04(b), as
applicable.
Section
2.11 Continuation
and Conversion of Loans .
viii)
The
Borrower may from time to time request LIBOR Rate Loans or may request that
a
Loan that is a Reference Rate Loan be converted to a LIBOR Rate Loan or that
any
existing LIBOR Rate Loans continue for an additional Interest Period. Such
request from the Borrower shall be in writing and shall specify the amount
of
the LIBOR Rate Loans or the amount of the Reference Rate Loans to be converted
to LIBOR Rate Loans or the amount of the LIBOR Rate Loans to be continued
(subject to the limits set forth below) and the Interest Period to be applicable
to such LIBOR Rate Loans. Subject to the terms and conditions contained herein,
three (3) Business Days after receipt by the Administrative Agent (or the
Collateral Agent, with respect to the Term Loans) of such a request from the
Borrower, such LIBOR Rate Loans shall be made or Reference Rate Loans shall
be
converted to LIBOR Rate Loans or such LIBOR Rate Loans shall continue, as the
case may be, provided, that, (i) no Event of Default shall exist or have
occurred and be continuing, (ii) no party hereto shall have sent any notice
of
termination of this Agreement, (iii) no more than fifteen (15) Interest
Periods ((A) in the case of Revolving Loans, no more than ten (10) Interest
Periods, and (B) in the case of Term Loans B, no more than four (4) Interest
Periods) may be in effect at any one time, (iv) the aggregate amount of the
LIBOR Rate Loans must be in an amount not less than $500,000 (or in the case
of
a Revolving Loan, $200,000) or an integral multiple of $100,000 in excess
thereof, and (v) the Administrative Agent (or the Collateral Agent, as
applicable) shall not have notified the Borrower that LIBOR Rate Loans are
unavailable pursuant to Section
2.09.
Any
request by or on behalf of the Borrower for LIBOR Rate Loans or to convert
Reference Rate Loans to LIBOR Rate Loans or to continue any existing LIBOR
Rate
Loans shall be irrevocable. Notwithstanding anything to the contrary contained
herein, the Agents and Lenders shall not be required to purchase United States
Dollar deposits in the London interbank market or other applicable LIBOR Rate
market to fund any LIBOR Rate Loans, but the provisions hereof shall be deemed
to apply as if the Agents and Lenders had purchased such deposits to fund the
LIBOR Rate Loans.
(b) Any
LIBOR
Rate Loans shall automatically convert to Reference Rate Loans upon the last
day
of the applicable Interest Period, unless the Administrative Agent has received
and approved a request to continue such LIBOR Rate Loans at least three (3)
Business Days prior to such last day in accordance with the terms hereof. Any
LIBOR Rate Loans shall, at the Administrative Agent's option, upon notice by
the
Administrative Agent to the Borrower, be subsequently converted to Reference
Rate Loans in the event that this Agreement shall terminate or not be renewed.
The Borrower shall pay to the Administrative Agent, for the benefit of Lenders,
upon demand by the Administrative Agent (or the Administrative Agent may, at
its
option, charge the Loan Account of the Borrower) any amounts required to
compensate any Lender for any loss (including loss of anticipated profits),
cost
or expense incurred by such person, as a result of the conversion of LIBOR
Rate
Loans to Reference Rate Loans pursuant to any of the foregoing.
-48-
ARTICLE
III
LETTERS
OF CREDIT
Section
3.01 Letter
of Credit Guaranty . ix) In
order to assist the Loan
Parties
in
establishing or opening standby letters of credit, which shall not have
expiration dates that exceed three years from the date of issuance, or which
have expiration dates not exceeding one year from the date of issuance subject
to automatic renewal set forth therein (each a "Letter
of Credit"),
with
the L/C Issuer, the Loan Parties have requested the Administrative Agent to
join
in the applications for such Letters of Credit, and/or guarantee payment or
performance of such Letters of Credit and any drafts thereunder through the
issuance of a Letter of Credit Guaranty, thereby lending the Administrative
Agent's credit to that of the Loan Parties, and the Administrative Agent has
agreed to do so. These arrangements shall be coordinated by the Administrative
Agent, subject to the terms and conditions set forth below. The Administrative
Agent shall not be required to be the issuer of any Letter of Credit. The Loan
Parties will be the account party for the application for each Letter of Credit,
which shall be substantially in the form of Exhibit G hereto or on a
computer transmission system approved by the Administrative Agent and the
L/C Issuer, or such other written form or computer transmission system as
may from time to time be approved by the Administrative
Agent
and the
L/C Issuer, and shall be duly completed in a manner and at a time
reasonably acceptable to the Administrative Agent, together with such other
certificates, agreements, documents and other papers and information as the
Administrative
Agent
and the
L/C Issuer may reasonably request (the "Letter
of Credit Application").
In
the event of any conflict between the terms of any Letter of Credit Application
and this Agreement, for purposes of this Agreement, the terms of this Agreement
shall control.
(b) The
aggregate Letter of Credit Obligations shall not exceed the lowest of (i) the
difference between (A) the Total Revolving Credit Commitment and (B) the sum
of
(I) the aggregate principal amount of all Revolving Loans then outstanding,
and
(II) all Indebtedness of the Loan Parties in respect of existing Third Party
Letters of Credit (which, for the avoidance of doubt, for the purpose of this
Section 3.01(b)(i)(B)(II), shall not be included if such Third Party Letters
of
Credit are backstopped by a Letter of Credit or fully cash collateralized),
and
(ii) the L/C Subfacility minus
the
aggregate amount of all Indebtedness of the Loan Parties in respect of existing
Third Party Letters of Credit. In addition, the terms and conditions of all
Letters of Credit and all changes or modifications thereof by the Loan Parties
and/or the L/C Issuer shall in all respects be subject to the prior approval
of
the Administrative
Agent in
the reasonable exercise of its sole and absolute discretion; provided,
however,
that
(i) the expiry date of all Letters of Credit shall be no later than fifteen
days
prior to the Final Maturity Date unless, no later than fifteen days prior to
the
Final Maturity Date either (A) such Letters of Credit shall be cash
collateralized in an amount equal to 102.5% of the face amount of such Letters
of Credit by deposit of cash in such amount in an account under the sole and
exclusive control of the Administrative Agent for the benefit of the
Administrative Agent and/or the L/C Issuer (the "Letter
of Credit Collateral Account")
or
(B) the Loan Parties shall provide the Administrative Agent and the
Revolving
Loan
Lenders
with an indemnification, in form and substance reasonably satisfactory to the
Administrative Agent, from a commercial bank or other financial institution
acceptable to the Agents for any Letter of Credit Obligations with respect
to
such Letters of Credit and (ii) the Letters of Credit and all documentation
in
connection therewith shall be in form and substance reasonably satisfactory
to
the Administrative
Agent
and
the L/C Issuer.
-49-
(c) The
Administrative Agent shall have the right, without notice to the Borrower,
to
charge the Loan Account with the amount of any and all Indebtedness, liabilities
and obligations of any kind (including indemnification for breakage costs,
capital adequacy and reserve requirement charges) incurred by the Agents or
the
Revolving
Loan
Lenders
under the Letter of Credit Guaranty or incurred by the L/C Issuer with
respect to a Letter of Credit at the earlier of (i) payment by the
Administrative Agent or the Revolving
Loan
Lenders
under the Letter of Credit Guaranty or (ii) the occurrence of any Default
or Event of Default. The Administrative Agent shall also have the right to
charge the Loan Account with the amount of any cash collateral that the L/C
Issuer may require from the Administrative Agent or any Lender solely under
a
Letter of Credit Guaranty, in each case provided
the
Administrative Agent provides the Borrower with prior written notice of its
intent to charge the Loan Account in accordance with the terms of this
Section
3.01(c).
Any
amount charged to the Loan Account shall be deemed a Revolving Loan hereunder
made by the Revolving
Loan
Lenders
to the Borrower, funded by the Administrative Agent on behalf of the
Revolving
Loan
Lenders
and subject to ii)
of this
Agreement. Any charges, fees, commissions, costs and expenses charged to the
Administrative Agent for the Borrower's account by the L/C Issuer in
connection with or arising out of Letters of Credit or transactions relating
thereto will be charged to the Loan Account in full when charged to or paid
by
the Administrative Agent and, when charged, shall be conclusive on the
Borrower
absent
manifest error. Each of the Revolving
Loan
Lenders
and the Borrower
agrees
that the Administrative Agent shall have the right to make such charges
regardless of whether any Default or Event of Default shall have occurred and
be
continuing or whether any of the conditions precedent in 0
have
been satisfied.
(d) Each
Loan
Party agrees to unconditionally indemnify each Agent and each Lender and hold
each Agent and each Lender harmless from any and all loss, claim or liability
incurred by any Agent or any Lender arising from any transactions or occurrences
relating to Letters of Credit, any drafts or acceptances thereunder, the
Collateral relating thereto, and all Obligations in respect thereof, including
any such loss or claim due to any action taken by the L/C Issuer, other
than for any such loss, claim or liability arising out of the gross negligence
or willful misconduct of the L/C Issuer, any Agent or any Lender as determined
by a final judgment of a court of competent jurisdiction. Each Loan Party
further agrees to hold each Agent and each Lender harmless from any errors
or
omission, negligence or misconduct by the L/C Issuer. Each Loan Party's
unconditional obligations to each Agent, each Lender and the L/C Issuer
with respect to Letters of Credit hereunder shall not be modified or diminished
for any reason or in any manner whatsoever, other than as a result of such
Agent's, such Lender's or the L/C Issuer's gross negligence or willful
misconduct as determined by a final judgment of a court of competent
jurisdiction. Each Loan Party agrees that any charges incurred by the
Administrative Agent or the L/C Issuer for such Loan Party's account
hereunder may be charged to the Loan Account.
(e) Upon
any
payments made to the L/C Issuer under the Letter of Credit Guaranty, the
Agents or the Revolving
Loan
Lenders,
as the case may be, shall, without prejudice to their rights under this
Agreement (including that such unreimbursed amounts shall constitute Loans
hereunder), acquire by subrogation, any rights, remedies, duties or obligations
granted or undertaken by the Loan
Parties
in favor
of the L/C Issuer in any application for Letters of Credit, any standing
agreement relating to Letters of Credit or otherwise, all of which shall be
deemed to have been granted to the Agents and the Revolving
Loan
Lenders
and apply in all respects to the Agents and the Revolving
Loan
Lenders
and shall be in addition to any rights, remedies, duties or obligations
contained herein.
-50-
Section
3.02 Participations .
(a) Purchase
of Participations .
Immediately upon issuance by the L/C Issuer of any Letter of Credit
pursuant to this Agreement, each Revolving
Loan
Lender
shall be deemed to have irrevocably and unconditionally purchased and received
from the Administrative Agent, without recourse or warranty, an undivided
interest and participation, to the extent of such Revolving
Loan
Lender's
Pro Rata Share, in all obligations of the Administrative Agent in such Letter
of
Credit (including, without limitation, all Reimbursement Obligations of the
Borrower
with
respect thereto pursuant to the Letter of Credit Guaranty or
otherwise).
(b) Sharing
of Payments.
In the
event that the Administrative Agent makes any payment in respect of the Letter
of Credit Guaranty and the Borrower
shall
not have repaid such amount to the Administrative Agent, the Administrative
Agent shall charge the Loan Account in the amount of the Reimbursement
Obligation, in accordance with 0
and
x)
of this
Agreement.
(c) Obligations
Irrevocable.
The
obligations of a Revolving
Loan
Lender
to make payments to the Administrative Agent for the account of the Agents,
the
Revolving
Loan
Lenders
or the L/C Issuer with respect to a Letter of Credit shall be irrevocable,
without any qualification or exception whatsoever and shall be made in
accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following
circumstances:
(i) any
lack
of validity or enforceability of this Agreement or any of the other Loan
Documents;
(ii) the
existence of any claim, setoff, defense or other right which the Borrower
may have
at any time against a beneficiary named in such Letter of Credit or any
transferee of such Letter of Credit (or any Person for whom any such transferee
may be acting), any Agent, any Lender, or any other Person, whether in
connection with this Agreement, such Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any underlying
transactions between the Borrower
or any
other party and the beneficiary named in such Letter of Credit);
(iii) any
draft, certificate or any other document presented under such Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or
any
statement therein being untrue or inaccurate in any respect;
(iv) the
surrender or impairment of any security for the performance or observance of
any
of the terms of any of the Loan Documents;
-51-
(v) any
failure by any Agent to provide any notices required pursuant to this Agreement
relating to such Letter of Credit;
(vi) any
payment by the L/C Issuer under such Letter of Credit against presentation
of a draft or certificate which does not comply with the terms of such Letter
of
Credit; or
(vii) the
occurrence of any Default or Event of Default.
Section
3.03 Letters
of Credit .
(a) Request
for Issuance.
The
Loan
Parties
may,
upon notice not later than 12:00 noon, New York City time, at least two (2)
Business Days in advance of the issuance thereof, request the Administrative
Agent to assist the Borrower
in
establishing or opening a Letter of Credit by delivering to the Administrative
Agent, with a copy to the L/C Issuer, a Letter of Credit Application,
together with any necessary related documents. The Administrative Agent shall
not provide support, pursuant to the Letter of Credit Guaranty, if the
Administrative Agent shall have received written notice from the Collateral
Agent or the Required Lenders on the Business Day immediately preceding the
proposed issuance date for such Letter of Credit that one or more of the
conditions precedent in 0
will not
have been satisfied on such date, and the Administrative Agent shall not
otherwise be required to determine that, or take notice whether, the conditions
precedent set forth in 0
have
been satisfied.
(b) Letter
of Credit Fees. (1) The
Borrower
shall
pay to the Administrative Agent for the account of the Revolving
Loan
Lenders,
in accordance with the Revolving
Loan
Lenders'
Pro Rata Shares (x) for any Letter of Credit issued hereunder by the L/C Issuer,
a non-refundable fee equal to 2.5% per annum of the stated amount of such Letter
of Credit, and (y) for any amendment to an existing Letter of Credit that
increases the stated amount of such Letter of Credit, a non-refundable fee
equal
to 2.5% per annum of the increase in the stated amount of such Letter of Credit,
in
each
case payable monthly in arrears on the first day of each month commencing on
July 1, 2007
based on
the stated amounts of the Letters of Credit issued or increased during such
month (the "Letter
of Credit Fees").
(ii) The
Borrower
shall
pay to the Administrative Agent for the ratable benefit of the Lenders, in
accordance with the Lenders' Pro Rata Shares (x) for any Third Party Letter
of
Credit issued on account of any Loan Party, a non-refundable fee equal to 1%
per
annum of the stated amount of such Third Party Letter of Credit, and (y) for
any
amendment to an existing Third Party Letter of Credit that increases the stated
amount of such letter of credit, a non-refundable fee equal to 1% per annum
of
the increase in the stated amount of such letter of credit, in
each
case payable monthly in arrears on the first day of each month commencing on
July 1, 2007
based on
the stated amounts of the Third Party Letters of Credit issued or increased
during such month (the "Letter
of Credit Override Fees").
(iii) L/C Issuer
Charges.
The
Borrower
shall
pay to the Administrative Agent the standard charges assessed by the
L/C Issuer in connection with the issuance, administration, amendment,
payment or cancellation of Letters of Credit.
-52-
(iv) Charges
to the Loan Account.
The
Borrower hereby authorizes the Administrative Agent to, and the Administrative
Agent may, from time to time, charge the Loan Account pursuant to 0
and
x)
of this
Agreement with the amount of any Letter of Credit fees or charges due under
this
0.
ARTICLE
IV
FEES,
PAYMENTS AND OTHER COMPENSATION
Section
4.01 [Intentionally
Omitted.]
Section
4.02 Payments;
Computations and Statements .
x)
The
Borrower will make each payment under this Agreement not later than
12:00 noon (New York City time) on the day when due, in lawful money of the
United States of America and in immediately available funds, (i) with respect
to
the Revolving Loan Obligations, to the Administrative Agent's Account, and
(ii)
with respect to the Term Loan Obligations, to the Collateral Agent's Account.
All payments received by the Administrative Agent after 12:00 noon (New York
City time) on any Business Day will be credited to the Loan Account on the
next
succeeding Business Day. All payments shall be made by the Borrower without
set-off, counterclaim, deduction or other defense to the Agents and the Lenders.
Except as provided in ii),
after
receipt, the Administrative Agent and the Collateral Agent, as applicable,
will
promptly thereafter cause to be distributed like funds relating to the payment
of principal ratably to the Lenders in accordance with their Pro Rata Shares
and
like funds relating to the payment of any other amount payable to any Lender
to
such Lender, in each case to be applied in accordance with the terms of this
Agreement, provided that the Administrative Agent and the Collateral Agent,
as
applicable, will cause to be distributed all interest and fees received from
or
for the account of the Borrower not less than once each month and in any event
promptly after receipt thereof. The Lenders and the Borrower hereby authorize
the Administrative Agent to, and the Administrative Agent may, from time to
time, charge the Loan Account of the Borrower with any amount due and payable
by
the Borrower under any Loan Document with respect to the Obligations other
than
Term Loan Obligations. Each of the Lenders and the Borrower agrees that the
Administrative Agent shall have the right to make such charges whether or not
any Default or Event of Default shall have occurred and be continuing or whether
any of the conditions precedent in 0
have
been satisfied. Any amount charged to the Loan Account of the Borrower shall
be
deemed a Revolving Loan hereunder made by the Revolving
Loan
Lenders
to the Borrower, funded by the Administrative Agent on behalf of the
Revolving
Loan
Lenders
and subject to ii)
of this
Agreement. The Lenders and the Borrower confirm that any charges which the
Administrative Agent may so make to the Loan Account of the Borrower as herein
provided will be made as an accommodation to the Borrower
and
solely at the Administrative Agent's discretion, provided
that the
Administrative Agent may from time to time with respect to Revolving Loan
Obligations, and shall upon the request of the Collateral Agent from time to
time, charge the Loan Account of the Borrower
with any
amount due and payable under any Loan Document. Whenever any payment to be
made
under any such Loan Document shall be stated to be due on a day other than
a
Business Day, such payment shall be made on the next succeeding Business Day
and
such extension of time shall in such case be included in the computation of
interest or fees, as the case may be. All computations of fees shall be made
by
the Administrative Agent (or the Collateral Agent, as applicable) on the basis
of a year of 360 days for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such fees
are
payable. Each determination by the Administrative Agent and the Collateral
Agent, as applicable, of an interest rate or fees hereunder shall be conclusive
and binding for all purposes in the absence of manifest error.
-53-
(b) (i)
The
Administrative Agent (with respect to the Revolving Loan Obligations) shall
provide the Borrower,
promptly after the end of each calendar month, a summary statement (in the
form
from time to time used by the Administrative Agent) of the opening and closing
daily balances in the Loan Account of the Borrower
during
such month, the amounts and dates of all Loans made to the Borrower
during
such month, the amounts and dates of all payments on account of the Loans to
the
Borrower
during
such month and the Loans to which such payments were applied, the amount of
interest accrued on the Loans to the Borrower
during
such month, any Letters of Credit issued by the L/C Issuer for the account
of
the Borrower
during
such month, specifying the face amount thereof, the amount of charges to the
Loan Account and/or Loans made to the Borrower
during
such month to reimburse the Revolving
Loan
Lenders
for drawings made under Letters of Credit, and the amount and nature of any
charges to the Loan Account made during such month on account of fees,
commissions, expenses and other Obligations. All entries on any such statement
shall be presumed to be correct and, thirty (30) days after the same is sent,
shall be final and conclusive absent manifest error.
(ii) The
Collateral Agent (with respect to the Term Loan Obligations) shall provide
the
Borrower,
promptly after the end of each calendar month, a summary statement (in the
form
from time to time used by the Collateral Agent, as applicable) of the amounts
and dates of all Term Loans made to the Borrower
during
such month, the amounts and dates of all payments on account of the Term Loans
to the Borrower
during
such month and the Term Loans to which such payments were applied, the amount
of
interest accrued on the Term Loans to the Borrower
during
such month. All entries on any such statement shall be presumed to be correct
and, thirty (30) days after the same is sent, shall be final and conclusive
absent manifest error.
Section
4.03 Sharing
of Payments, Etc .
Except
as provided in ii)
hereof,
if any Lender shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on account of any Obligation
in excess of its ratable share of payments on account of similar obligations
obtained by all the Lenders, such Lender shall forthwith purchase from the
other
Lenders such participations in such similar obligations held by them as shall
be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided,
however,
that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent
of
such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender
of
any interest or other amount paid by the purchasing Lender in respect of the
total amount so recovered). The Borrower agrees that any Lender so purchasing
a
participation from another Lender pursuant to this 0
may, to
the fullest extent permitted by law, exercise all of its rights (including
the
Lender's right of set-off) with respect to such participation as fully as if
such Lender were the direct creditor of the Borrower
in the
amount of such participation.
-54-
Section
4.04 Apportionment
of Payments . Subject
to ii)
hereof
and to any written agreement among the Agents and/or the Lenders:
(a) all
payments of principal and interest in respect of outstanding Loans, all payments
in respect of the Reimbursement Obligations, all payments of fees (other than
the fees set forth in 0
hereof
to the extent set forth in a written agreement among the Agents and the Lenders,
fees with respect to Letters of Credit provided for in 0)
and all
other payments in respect of any other Obligations, shall be allocated by the
Administrative Agent (with respect to the Revolving Loan Obligations) and the
Collateral Agent (with respect to the Term Loan Obligations), as applicable,
among such of the Lenders as are entitled thereto, in proportion to their
respective Pro Rata Shares or otherwise as provided herein or, in respect of
payments not made on account of Loans or Letter of Credit Obligations, as
designated by the Person making payment when the payment is made.
(b) After
the
occurrence and during the continuance of an Event of Default, notwithstanding
any other provisions of any Loan Document to the contrary, any Agent may, and
upon the direction of the Required Lenders shall, apply, or cause to be applied,
all payments in respect of any Obligations and all proceeds of the Collateral,
subject to the provisions of this Agreement, (i) first,
ratably
to pay the Obligations in respect of any fees, expense reimbursements and
indemnities then due to the Agents or the L/C Issuer until paid in full;
(ii) second,
ratably
to pay the Revolving Loan Obligations in respect of any fees and indemnities
then due to the Revolving
Loan
Lenders
until paid in full; (iii) third,
ratably
to pay interest due in respect of the Revolving Loans, Collateral Agent Advances
and Reimbursement Obligations until paid in full; (iv) fourth,
ratably
to pay principal of the Revolving Loans, Collateral Agent Advances and Letter
of
Credit Obligations (or, to the extent such Obligations are contingent, to
provide cash collateral in respect of such Obligations in an amount equal to
102.5% of the aggregate undrawn amount of all outstanding Letters of Credit)
until paid in full; (v) fifth,
ratably
to pay the Term Loan Obligations in respect of any fees and indemnities then
due
to the Term Loan
Lenders
until paid in full; (vi) sixth,
ratably
to pay interest due in respect of the Term Loan until paid in full;
(vii) seventh,
ratably
to pay principal of the Term Loan until paid in full; (viii) eighth,
ratably
to pay the Bank Product Obligations, until paid in full, and (ix) ninth,
to the
ratable payment of all other Obligations then due and payable.
(c) For
purposes of 0,
"paid
in
full" means with respect to any Obligations, payment of all amounts owing under
the Loan Documents in respect of such Obligations, including fees, interest,
default interest, interest on interest, expense reimbursements and indemnities,
specifically including in each case any of the foregoing which would accrue
after the commencement of any Insolvency Proceeding irrespective of whether
a
claim is allowable in such Insolvency Proceeding, except to the extent that
default interest (but not any other interest) and fees, each arising from or
related to a default, are disallowed in any Insolvency Proceeding
(d) In
the
event of a direct conflict between the priority provisions of this 0
and
other provisions contained in any Loan Document, it is the intention of the
parties hereto that both such priority provisions in such documents shall be
read together and construed, to the fullest extent possible, to be in concert
with each other. In the event of any actual, irreconcilable conflict that cannot
be resolved as aforesaid, the terms and provisions of this 0
shall
control and govern.
-55-
Section
4.05 Increased
Costs and Reduced Return . xi) If
any Lender, any Agent or the L/C Issuer shall have determined that the
adoption or implementation of, or any change in, any law, rule, treaty or
regulation, or any policy, guideline or directive of, or any change in, the
interpretation or administration thereof by, any court, central bank or other
administrative or Governmental Authority, or compliance by any Lender, any
Agent
or the L/C Issuer or any Person controlling any such Agent, any such Lender
or the L/C Issuer with any directive of, or guideline from, any central
bank or other Governmental Authority (in each case, whether or not having the
force of law) (each a "Change
in Law"),
shall
(i) subject such Agent, such Lender or the L/C Issuer, or any Person
controlling such Agent, such Lender or the L/C Issuer to any tax, duty or
other charge with respect to this Agreement or any Loan made by such Agent
or
such Lender or any Letter of Credit issued by the L/C Issuer (except for
taxes on the overall net income of such Agent, such Lender or the
L/C Issuer or any Person controlling such Agent, such Lender or the
L/C Issuer), or (ii) impose, modify or deem applicable any reserve, special
deposit or similar requirement against any Loan, any Letter of Credit or against
assets of or held by, or deposits with or for the account of, or credit extended
by, such Agent, such Lender or the L/C Issuer or any Person controlling
such Agent, such Lender or the L/C Issuer and the result of any event
referred to in clauses (i) or (ii) above shall be to increase the cost to such
Agent, such Lender or the L/C Issuer of making any Loan, issuing,
guaranteeing or participating in any Letter of Credit, or agreeing to make
any
Loan or issue, guaranty or participate in any Letter of Credit, or to reduce
any
amount received or receivable by such Agent, such Lender or the L/C Issuer
hereunder, then, upon demand by such Agent, such Lender or the L/C Issuer,
the Borrower shall pay to such Agent, such Lender or the L/C Issuer such
additional amounts as will compensate such Agent, such Lender or the
L/C Issuer for such increased costs or reductions in amount.
(b) If
any
Agent, any Lender or the L/C Issuer shall have determined that any Change
in Law either (i) affects or would affect the amount of capital required or
expected to be maintained by such Agent, such Lender or the L/C Issuer or
any Person controlling such Agent, such Lender or the L/C Issuer, and such
Agent, such Lender or the L/C Issuer determines that the amount of such
capital is increased as a direct or indirect consequence of any Loans made
or
maintained, Letters of Credit issued or any guaranty or participation with
respect thereto, such Agent's, such Lender's or the L/C Issuer's or such
other controlling Person's other obligations hereunder, or (ii) has or
would have the effect of reducing the rate of return on such Agent's, such
Lender's or the L/C Issuer's such other controlling Person's capital to a
level below that which such Agent, such Lender or the L/C Issuer or such
controlling Person could have achieved but for such circumstances as a
consequence of any Loans made or maintained, Letters of Credit issued, or any
guaranty or participation with respect thereto or any agreement to make Loans,
to issue Letters of Credit or such Agent's, such Lender's or the
L/C Issuer's or such other controlling Person's other obligations hereunder
(in each case, taking into consideration, such Agent's, such Lender's or the
L/C Issuer's or such other controlling Person's policies with respect to
capital adequacy), then, upon demand by such Agent, such Lender or the
L/C Issuer, the Borrower shall pay to such Agent, such Lender or the
L/C Issuer from time to time such additional amounts as will compensate
such Agent, such Lender or the L/C Issuer for such cost of maintaining such
increased capital or such reduction in the rate of return on such Agent's,
such
Lender's or the L/C Issuer's or such other controlling Person's
capital.
-56-
(c) All
amounts payable under this 1)a)xi)
shall
bear interest from the date that is ten (10) days after the date of demand
by
any Agent, any Lender or the L/C Issuer until payment in full to such
Agent, such Lender or the L/C Issuer at the Reference Rate. A certificate
of such Agent, such Lender or the L/C Issuer claiming compensation under
this 1)a)xi),
specifying the event herein above described and the nature of such event shall
be submitted by such Agent, such Lender or the L/C Issuer to the
Borrower,
setting
forth the additional amount due and an explanation of the calculation thereof,
and such Agent's, such Lender's or the L/C Issuer's reasons for invoking
the provisions of this 1)a)xi),
and
shall be final and conclusive absent manifest error.
ARTICLE
V
CONDITIONS
TO LOANS
Section
5.01 Conditions
Precedent to Effectiveness .
This
Agreement shall become effective as of the Business Day when each of the
following conditions precedent shall have been satisfied in a manner
satisfactory to the Agents (the "Effective
Date"):
(a) Payment
of Fees, Etc.
The
Borrower shall have paid on or before the date of this Agreement all fees,
costs, expenses and taxes then payable pursuant to 0
and
0.
(b) Representations
and Warranties; No Event of Default.
The
following statements shall be true and correct: (i) the representations and
warranties contained in 0
and in
each other Loan Document, certificate or other writing delivered to any Agent,
any Lender or the L/C Issuer pursuant hereto or thereto on or prior to the
Effective Date are true and correct on and as of the Effective Date as though
made on and as of such date and (ii) no Default or Event of Default shall
have occurred and be continuing on the Effective Date or would result from
this
Agreement or the other Loan Documents becoming effective in accordance with
its
or their respective terms.
(c) Legality.
The
making of the initial Loans or the issuance of any Letters of Credit shall
not
contravene any law, rule or regulation applicable to any Agent, any Lender
or
the L/C Issuer.
(d) Delivery
of Documents.
The
Collateral Agent shall have received on or before the Effective Date the
following, each in form and substance satisfactory to the Collateral Agent
and,
unless indicated otherwise, dated the Effective Date:
(i) a
Security Agreement, duly executed by each US Loan Party, together with the
original stock certificates representing all of the Capital Stock of such US
Loan Party's subsidiaries and all intercompany promissory notes of such US
Loan
Parties pledged thereunder, accompanied by undated stock powers executed in
blank and other proper instruments of transfer;
-57-
(ii) a
Canadian Security Agreement, duly executed by each Canadian
Guarantor;
(iii) a
Canadian Pledge Agreement, duly executed by the Canadian Guarantors party
thereto, together with the original stock certificates representing all of
the
Capital Stock of such Canadian Guarantor's subsidiaries and all intercompany
promissory notes of such Canadian Guarantor pledged thereunder, accompanied
by
undated stock powers executed in blank and other proper instruments of
transfer;
(iv) the
Fee
Letter, duly executed by the Borrower;
(v) copies
of
appropriate financing statements on Form UCC-1 to be filed in such office or
offices as may be necessary or, in the opinion of the Collateral Agent,
desirable to perfect the security interests purported to be created by each
Security Agreement and each Mortgage and appropriate PPSA financing statements
duly filed in such office or offices as may be necessary or, in the opinion
of
the Collateral Agent, desirable to perfect the security interest purported
to be
created by each Canadian Security Agreement;
(vi) (A)
certified copies of request for copies of information on Form UCC-11, listing
all effective financing statements which name as debtor any US Loan Party and
which are filed in the offices referred to in paragraph (v) above, together
with
copies of such financing statements, none of which, except as otherwise agreed
in writing by the Collateral Agent or except as permitted under Section 7.02(a),
shall cover any of the Collateral and the results of searches for any tax Lien
and judgment Lien filed against such Person or its property, which results,
except as otherwise agreed to in writing by the Collateral Agent or except
as
permitted under Section 7.02(a), shall not show any such Liens, and (B)
certified copies of PPSA search results from the applicable Canadian
jurisdiction listing all security interests against any Canadian Guarantor
and
which are filed in the applicable personal property security office of such
Canadian jurisdiction and which do not disclose, except as otherwise agreed
in
writing by the Collateral Agent or except as permitted under Section 7.02(a),
security interests affecting any of the Collateral;
(vii) a
copy of
the resolutions of each Loan Party, certified as of the Effective Date by an
authorized signatory thereof, authorizing (A) the borrowings hereunder and
the transactions contemplated by the Loan Documents to which such Loan Party
is
or will be a party, and (B) the execution, delivery and performance by such
Loan Party of each Loan Document to which such Loan Party is or will be a party
and the execution and delivery of the other documents to be delivered by such
Person in connection herewith and therewith;
(viii) a
certificate of an authorized signatory of each Loan Party, certifying the names
and true signatures of the representatives of such Loan Party authorized to
sign
each Loan Document to which such Loan Party is or will be a party and the other
documents to be executed and delivered by such Loan Party in connection herewith
and therewith, together with evidence of the incumbency of such authorized
signatories;
(ix) a
certificate of the appropriate official(s) of the state or province of
organization and each state of foreign qualification of each Loan Party, each
dated within ten (10) days of the Effective Date or otherwise acceptable to
the
Collateral Agent, certifying as to the subsistence and/or good standing (as
applicable) of, and, in the case of any US Loan Party, the payment of taxes
by,
such Loan Party in such states or provinces (as applicable);
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(x) a
true
and complete copy of the charter, certificate of formation, certificate of
limited partnership or other publicly filed organizational document of each
Loan
Party certified as of a recent date not more than 30 days prior to the Effective
Date (unless agreed to by the Agents) by an appropriate official of the state
of
organization of such Loan Party which shall set forth the same complete name
of
such Loan Party as is set forth herein and the organizational number of such
Loan Party, if an organizational number is issued in such
jurisdiction;
(xi) a
copy of
the charter and by-laws, limited liability company agreement, operating
agreement, agreement of limited partnership or other organizational document
of
each Loan Party, together with all amendments thereto, certified as of the
Effective Date by an authorized signatory of such Loan Party;
(xii) (A)
an
opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, and
(B) opinions of Fogler, ▇▇▇▇▇▇▇▇ LLP, Hacker ▇▇▇▇▇▇ Rice, ▇▇▇▇ & Berlis LLP,
Robins, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇▇▇▇▇▇ Law, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ LLP, Canadian counsel to the Loan Parties, each substantially in the
form
of Exhibit F and as to such other matters as the Collateral Agent may reasonably
request;
(xiii) a
certificate of an Authorized Officer of the Parent and the Borrower, on behalf
of each Loan Party, certifying as to the matters set forth in subsection
0
of this
0;
(xiv) a
copy of
the Financial Statements and the financial projections described in 0
hereof;
(xv) a
certificate of the chief financial officer of the Borrower
certifying that,
to
the
knowledge of the Borrower, the Borrower believes that it would satisfy, on
the
date hereof, the financial covenant set forth in Section 7.03 (b) applicable
to
the fiscal quarter ending June 30, 2007 (calculated on a pro forma basis after
giving effect to the Loans made and Letters of Credit issued on the date hereof)
as
if such
financial covenant were measured on such date;
(1) a
certificate of the chief financial officer of the Parent, certifying as to
the
solvency of the Parent and its Subsidiaries taken as a whole, which certificate
shall be satisfactory in form and substance to the Collateral
Agent;
(xvii) evidence
of the insurance coverage required by 0(h);
(xviii) a
certificate of an Authorized Officer of the Borrower,
certifying the names and true signatures of the persons that are authorized
to
provide Notices of Borrowing, Letter of Credit Applications and all other
notices under this Agreement and the other Loan Documents;
-59-
(xix) copies
of
the Material Contracts
as in
effect on the Effective Date, certified as true and correct copies thereof
by an
Authorized Officer of the Borrower;
(xx) a
termination and release agreement with respect to the Existing Credit Facility
and all related documents, duly executed by the Loan Parties and the Existing
Lender, together with UCC-3 termination statements for all UCC-1 financing
statements filed by, or on behalf of, the Existing Lender and covering any
portion of the Collateral and PPSA terminations or discharges for all PPSA
financing statements (if any) filed by the Existing Lender and covering any
portion of the Collateral;
(xxi) such
depository account, blocked account, lockbox account and similar agreements
and
other documents, each in form and substance satisfactory to the Agents, as
the
Agents may request with respect to the Borrower's cash management
system;
(xxii) the
Contribution Agreement, duly executed by each Loan Party;
(xxiii) the
Intercompany Subordination Agreement, duly executed by each Loan
Party;
(xxiv) the
Disbursement Letter, duly executed by each Loan Party; and
(xxv) such
other agreements, instruments, approvals, opinions and other documents, each
satisfactory to the Collateral Agent in form and substance, as the Collateral
Agent may reasonably request.
(e) Material
Adverse Effect.
No
event or development shall have occurred since December 31, 2006 which could
reasonably be expected to have a Material Adverse Effect.
(f) Approvals.
All
consents, authorizations and approvals of, and filings and registrations with,
and all other actions in respect of, any Governmental Authority or other Person
required in connection with the making of the Loans or the conduct of the Loan
Parties' business shall have been obtained and shall be in full force and
effect.
(g) Proceedings;
Receipt of Documents.
All
proceedings in connection with the making of the initial Loans or the issuance
of the initial Letters of Credit and the other transactions contemplated by
this
Agreement and the other Loan Documents, and all documents incidental hereto
and
thereto, shall be satisfactory to the Collateral Agent and its counsel, and
the
Collateral Agent and such counsel shall have received all such information
and
such counterpart originals or certified or other copies of such documents as
the
Collateral Agent or such counsel may reasonably request.
(h) Minimum
Closing EBITDA.
The
Agents shall be satisfied that Consolidated EBITDA of the Parent and its
Subsidiaries, for the trailing consecutive twelve-month period ending on April
30, 2007, shall be more than $32,000,000.
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Section
5.02 Conditions
Precedent to All Loans and Letters of Credit .
The
obligation of any Agent or any Lender to make any Loan or of the Administrative
Agent to assist the Borrower in establishing or opening any Letter of Credit
after the Effective Date is subject to the fulfillment, in a manner satisfactory
to the Agents, of each of the following conditions precedent:
(a) Payment
of Fees, Etc.
The
Borrower shall have paid all fees, costs, expenses and taxes then payable by
the
Borrower pursuant to this Agreement and the other Loan Documents, including,
without limitation, 0
and
0
hereof.
(b) Representations
and Warranties; No Event of Default.
The
following statements shall be true and correct, and the submission by the
Borrower
to the
Administrative Agent (or the Collateral Agent, with respect to any Term Loan
B)
of a Notice of Borrowing with respect to each such Loan, and the Borrower's
acceptance of the proceeds of such Loan, or the submission by the Borrower
of a
Letter of Credit Application with respect to a Letter of Credit, and the
issuance of such Letter of Credit, shall each be deemed to be a representation
and warranty by each Loan Party on the date of such Loan or the date of issuance
of such Letter of Credit that: (i) the representations and warranties
contained in 0
and in
each other Loan Document delivered to any Agent or any Lender pursuant hereto
or
thereto on or prior to the date of such Loan or such Letter of Credit are true
and correct in all material respects (except that such materiality qualifier
shall not be applicable to any representations or warranties that already are
qualified or modified by materiality in the text thereof) on and as of such
date
as though made on and as of such date, (ii) at the time of and after giving
effect to the making of such Loan and the application of the proceeds thereof
or
at the time of issuance of such Letter of Credit, no Default or Event of Default
has occurred and is continuing or would result from the making of the Loan
to be
made, or the issuance of such Letter of Credit to be issued, on such date and
(iii) the conditions set forth in this 0
have
been satisfied as of the date of such request.
(c) Notices.
The
Administrative Agent (or the Collateral Agent, as applicable) shall have
received (i) a Notice of Borrowing pursuant to ii)
hereof
and (ii) a Letter of Credit Application pursuant to 0
hereof,
if applicable.
(d) Compliance.
The
Borrower shall have delivered a certificate (which can form part of the Notice
of Borrowing or the Letter of Credit Application, as the case may be) certifying
that, to the knowledge of the Borrower, the Borrower believes that it would
satisfy, on the date the requested Loan and/or Letter of Credit is made or
issued (as the case may be), the financial covenant set forth in Section 7.03(a)
applicable to the immediately succeeding fiscal quarter (calculated on a pro
forma basis after giving effect to such Loan or the issuance of such Letter
of
Credit) as
if such
financial covenant was measured on such date.
(e) Proceedings;
Receipt of Documents.
All
proceedings in connection with the making of such Loan or the issuance of such
Letter of Credit and the other transactions contemplated by this Agreement
and
the other Loan Documents, and all documents incidental hereto and thereto,
shall
be satisfactory to the Agents and their counsel, and the Agents and such counsel
shall have received all such information and such counterpart originals or
certified or other copies of such documents, in form and substance satisfactory
to the Agents, as the Agents or such counsel may reasonably
request.
-61-
Section
5.03 Conditions
Subsequent to the Initial Loans.
The
obligation of the Lenders to continue to make or maintain Loans is subject
to
the fulfillment of the conditions subsequent set forth in Schedule 5.03 (the
failure by the Loan Parties to so perform or cause to be performed constituting
an Event of Default).
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES
Section
6.01 Representations
and Warranties .
Each of
the Borrower and the Parent, on behalf of itself and the other Loan Parties,
hereby represents and warrants to the Agents, the Lenders and the
L/C Issuer as follows:
(a) Organization,
Good Standing, Etc.
Each
Loan Party (i) is a corporation, limited liability company or limited
partnership duly organized, validly existing and in good standing under the
laws
of the state or jurisdiction of its organization, (ii) has all requisite power
and authority to conduct its business as now conducted and as presently
contemplated and, in the case of the Borrower, to make the borrowings hereunder,
and to execute and deliver each Loan Document to which it is a party, and to
consummate the transactions contemplated thereby, and (iii) is duly qualified
to
do business and is in good standing in each jurisdiction in which the character
of the properties owned or leased by it or in which the transaction of its
business makes such qualification necessary, other than jurisdictions where
the
failure to be so qualified and in good standing could not reasonably be expected
to have a Material Adverse Effect.
(b) Authorization,
Etc.
The
execution, delivery and performance by each Loan Party of each Loan Document
to
which it is or will be a party, (i) have been duly authorized by all necessary
action, (ii) do not and will not contravene its charter or by-laws, its limited
liability company or operating agreement or its certificate of partnership
or
partnership agreement, or other publicly filed organizational document of each
Loan Party as applicable, or any applicable law or any material contractual
restriction binding on or otherwise affecting it or any of its properties,
(iii)
do not and will not result in or require the creation of any Lien (other than
pursuant to any Loan Document) upon or with respect to any of its properties,
and (iv) do not and will not result in any default, noncompliance, suspension,
revocation, impairment, forfeiture or nonrenewal of any material permit,
license, authorization or approval applicable to its operations or any of its
properties.
(c) Governmental
Approvals.
No
authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority is required in connection with the due execution,
delivery and performance by any Loan Party of any Loan Document to which it
is
or will be a party.
(d) Enforceability
of Loan Documents.
This
Agreement is, and each other Loan Document to which any Loan Party is or will
be
a party, when delivered hereunder, will be, a legal, valid and binding
obligation of such Person, enforceable against such Person in accordance with
its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws.
-62-
(e) Subsidiaries.
(i) As
of the
Effective Date, Schedule 6.010
is a
complete and correct description of the name, jurisdiction of incorporation
and
ownership of the outstanding Capital Stock of such Subsidiaries of the Parent
(for the purposes of this Section 6.01(e), including all Minority-Owned Entities
that are not Loan Parties, other than any investments set forth in Schedule
7.02(e)). All
of
the issued and outstanding shares of Capital Stock of such
Subsidiaries
have
been validly issued and are fully paid and nonassessable, and the holders
thereof are not entitled to any preemptive, first refusal or other similar
rights, except as indicated on such Schedule. Except as indicated on such
Schedule, all
such
Capital Stock is owned by the Parent or one or more of its Subsidiaries, free
and clear of all Liens. As of the Effective Date, except
as
indicated on such Schedule, there
are
no outstanding debt or equity securities of the Parent or any of its
Subsidiaries and no outstanding obligations of the Parent or any of its
Subsidiaries convertible into or exchangeable for, or warrants, options or
other
rights for the purchase or acquisition from the Parent or any of its
Subsidiaries, or other obligations of any Subsidiary to issue, directly or
indirectly, any shares of Capital Stock of any Subsidiary of the
Parent.
Except
as indicated on such Schedule, as
of the
Effective Date, any
Subsidiary of the Parent that is not a Loan Party is an Immaterial
Subsidiary.
(f) Litigation;
Commercial Tort Claims.
Except
as set forth in Schedule 6.010,
(i) there is no pending or, to the knowledge
of any
Loan Party, threatened action, suit or proceeding affecting any Loan Party
before any court or other Governmental Authority or any arbitrator that
(A) if adversely determined, could have a Material Adverse Effect or
(B) relates to this Agreement or any other Loan Document or any transaction
contemplated hereby or thereby and (ii) as of the Effective Date, none of
the Loan Parties holds any commercial tort claims in respect of which a claim
has been filed in a court of law or a written notice by an attorney has been
given to a potential defendant.
(g) Financial
Condition.
(i) The
Financial Statements, copies of which have been delivered to the Collateral
Agent, fairly present the consolidated financial condition of the Parent
and
its
Subsidiaries as at the respective dates thereof and the consolidated results
of
operations of the Parent
and
its
Subsidiaries for the fiscal periods ended on such respective dates, all in
accordance with GAAP, and since December 31, 2006 no event or development has
occurred that has had or could reasonably be expected to have a Material Adverse
Effect.
(ii) The
Parent
has
heretofore furnished to each Agent (A) projected quarterly balance sheets,
income statements and statements of cash flows of the Parent and its
Subsidiaries for the period from January 1, 2007, through December 31, 2007,
and
(B) the model of projected cash flows and capital position of the Parent
and
its
Subsidiaries for the Fiscal Years 2007 through 2011, which projected financial
statements shall be updated from time to time pursuant to Section 7.01(a)(vi).
Such projections, as may be updated, shall be believed by the Parent
at
the
time furnished to be reasonable, shall have been prepared on a reasonable basis
and in good faith by the Parent,
and
shall have been based on assumptions believed by the Parent
to
be
reasonable at the time made and upon the information then reasonably available
to the Parent,
and the
Parent
shall not be aware
of
any facts or information that would lead it to believe that such projections,
together with any other information made available to the Agents, taken as
a
whole, as so updated, are incorrect or misleading in any material
respect.
-63-
(h) Compliance
with Law, Etc.
No Loan
Party is in violation of its organizational documents, any law, rule,
regulation, judgment or order of any Governmental Authority applicable to it
or
any of its property or assets, or any material term of any agreement or
instrument (including, without limitation, any Material Contract) binding on
or
otherwise affecting it or any of its properties, and no Default or Event of
Default has occurred and is continuing.
(i) ERISA.
Except
as could not reasonably be expected to have a Material Adverse Effect, (i)
each
Employee Plan is in substantial compliance with ERISA, the Internal Revenue
Code
and the Canadian Employee Benefit Laws, as applicable, (ii) no Termination
Event has occurred nor is reasonably expected to occur with respect to any
Employee Plan, (iii) the most recent annual report (Form 5500 Series) with
respect to each Employee Plan, including any required Schedule B (Actuarial
Information) thereto, copies of which have been filed with the Internal Revenue
Service and delivered to the Agents, is complete and correct and fairly presents
the funding status of such Employee Plan, and since the date of such report
there has been no material adverse change in such funding status, and (iv)
no
Lien imposed under the Internal Revenue Code or ERISA exists or is likely to
arise on account of any Employee Plan within the meaning of Section 412 of
the
Internal Revenue Code. Except as set forth on Schedule 0,
as of
the Effective Date, no Loan Party or any of its ERISA Affiliates has incurred
any withdrawal liability under ERISA with respect to any Multiemployer Plan,
or
is aware of any facts indicating that it or any of its ERISA Affiliates may
in
the future incur any such withdrawal liability. Except as could not reasonably
be expected to have a Material Adverse Effect, no Loan Party or any of its
ERISA
Affiliates nor any fiduciary of any Employee Plan has (i) engaged in a nonexempt
prohibited transaction described in Sections 406 of ERISA or 4975 of the
Internal Revenue Code, (ii) failed to pay any required installment or other
payment required under Section 412 of the Internal Revenue Code on or before
the
due date for such required installment or payment, (iii) engaged in a
transaction within the meaning of Section 4069 of ERISA or (iv) incurred any
liability to the PBGC which remains outstanding other than the payment of
premiums, and there are no premium payments which have become due which are
unpaid. Except as could not reasonably be expected to have a Material Adverse
Effect, there are no pending or, to the knowledge of any Loan Party, threatened
claims, actions, proceedings or lawsuits (other than claims for benefits in
the
normal course) asserted or instituted against (i) any Employee Plan or its
assets, (ii) any fiduciary with respect to any Employee Plan, or (iii) any
Loan
Party or any of its ERISA Affiliates with respect to any Employee Plan. Except
as could not reasonably be expected to have a Material Adverse Effect, except
as
required by Section 4980B of the Internal Revenue Code, no Loan Party or any
of
its ERISA Affiliates maintains an employee welfare benefit plan (as defined
in
Section 3(1) of ERISA) which provides health or welfare benefits (through the
purchase of insurance or otherwise) for any retired or former employee of any
Loan Party or any of its ERISA Affiliates or coverage after a participant's
termination of employment.
Except
as could not reasonably be expected to have a Material Adverse Effect: all
Canadian Employee Plans are, and have been, established, registered, qualified,
administered, funded and invested in all material respects in accordance with
the terms of such Canadian Employee Plans including the terms of the material
documents that support such Canadian Employee Plans, any applicable collective
agreement and all applicable laws; no event has occurred respecting any Canadian
Employee Plan which could result in the revocation of the registration of such
Canadian Employee Plan or entitle any person (without consent of the applicable
Loan party) to wind up or terminate any Canadian Employee Plan, in whole or
in
part, or which could otherwise reasonably be expected to adversely affect the
tax status of any such Canadian Employee Plan; there are no unfunded liabilities
in respect of any Canadian Employee Plan including going concern unfunded
liabilities, solvency deficiencies or wind-up deficiencies where applicable;
none of the Canadian Employee Plans provide benefits beyond retirement or other
termination of service to employees or former employees or to the beneficiaries
or dependants of such employees; and there is no proceeding, action, suit or
claim (other than routine claims for payments of benefits) pending or threatened
involving any Canadian Employee Plan or its assets.
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(j) Taxes,
Etc.
All
material federal, Canadian, state, provincial and local tax returns and other
reports required by applicable law to be filed by any Loan Party have been
filed, or extensions have been obtained, and all taxes, assessments and other
governmental charges imposed upon any Loan Party or any property of any Loan
Party and which have become due and payable on or prior to the date hereof
have
been paid, except for taxes, assessments and charges in an aggregate amount
not
the exceed $2,000,000 and except to the extent contested in good faith by proper
proceedings which stay the imposition of any penalty, fine or Lien resulting
from the non-payment thereof and with respect to which adequate reserves have
been set aside for the payment thereof on the Financial Statements in accordance
with GAAP.
(k) Regulations
T, U and X.
No Loan
Party is or will be engaged in the business of extending credit for the purpose
of purchasing or carrying margin stock (within the meaning of Regulation T,
U or
X), and no proceeds of any Loan will be used to purchase or carry any margin
stock or to extend credit to others for the purpose of purchasing or carrying
any margin stock.
(l) Nature
of Business.
No Loan
Party is engaged in any business other than the Marketing Communications
Business.
(m) Adverse
Agreements, Etc.
No Loan
Party is a party to any agreement or instrument, or subject to any charter,
limited liability company agreement, partnership agreement or other corporate,
partnership or limited liability company restriction or any judgment, order,
regulation, ruling or other requirement of a court or other Governmental
Authority, which could reasonably be expected to have a Material Adverse
Effect.
(n) Permits,
Etc.
Each
Loan Party has, and is in compliance with, all permits, licenses,
authorizations, approvals, entitlements and accreditations required for such
Person lawfully to own, lease, manage or operate, or to acquire, each business
currently owned, leased, managed or operated, or to be acquired, by such Person,
except where a lack of compliance could not reasonably be expected to have
Material Adverse Effect. No condition exists or event has occurred which, in
itself or with the giving of notice or lapse of time or both, would result
in
the suspension, revocation, impairment, forfeiture or non-renewal of any such
permit, license, authorization, approval, entitlement or accreditation, and
there is no claim that any thereof is not in full force and effect, except
where
the existence of such condition could not reasonably be expected to have
Material Adverse Effect.
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(o) Properties. (2) Each
Loan Party has good and marketable title to, valid leasehold interests in,
or
valid licenses to use, all property and assets material to its business, free
and clear of all Liens, except Permitted Liens. All such properties and assets
are in good working order and condition, ordinary wear and tear
excepted.
(ii) Schedule
1)a)xi)(2)
sets
forth a complete and accurate list, as of the Effective Date, of the location,
by state or province (as the case may be) and street address, of all real
property owned or leased by each Loan Party. As of the Effective Date, each
Loan
Party has valid leasehold interests in all of the Leases material to its
business taken as a whole. No consent or approval of any landlord or other
third
party in connection with any such Lease is necessary for any Loan Party to
enter
into and execute the Loan Documents to which it is a party, except as could
not
reasonably be expected to have a Material Adverse Effect. To the knowledge
of
any Loan Party, except as could not reasonably be expected to have a Material
Adverse Effect, no Loan Party is in default of its obligations under any such
Lease, and no Loan Party has at any time delivered or received any notice of
default which remains uncured under any such Lease and, as of the Effective
Date, no event has occurred which, with the giving of notice or the passage
of
time or both, would constitute a default under any such Lease.
(p) Full
Disclosure.
Each
Loan
Party has
disclosed to the Agents all agreements, instruments and corporate or other
restrictions to which it is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in
a
Material Adverse Effect. None of the other reports, financial statements,
certificates or other information furnished by or on behalf of any Loan
Party
to the
Agents in connection with the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which it was made, not misleading; provided
that,
with respect to projected financial information, each Loan
Party represents
only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time prepared. As of the Effective Date,
there
is
no contingent liability or fact that could reasonably be expected to have a
Material Adverse Effect which has not been set forth in a footnote included
in
the Financial Statements or a Schedule hereto.
(q) [Intentionally
Omitted].
(r) Environmental
Matters.
Except
as set forth on Schedule 0
or as
could not reasonably be expected to have a Material Adverse Effect, (i) the
operations of each Loan Party are in material compliance with all Environmental
Laws; (ii) there has been no Release at any of the properties owned or
operated by any Loan Party or a predecessor in interest, or at any disposal
or
treatment facility which received Hazardous Materials generated by any Loan
Party or any predecessor in interest; (iii) no Environmental Action has
been asserted against any Loan Party or any predecessor in interest nor does
any
Loan Party have knowledge or notice of any threatened or pending Environmental
Action against any Loan Party or any predecessor in interest which could have
a
Material Adverse Effect; (iv) no Environmental Actions have been asserted
against any facilities that may have received Hazardous Materials generated
by
any Loan Party or any predecessor in interest; (v) no
property now or formerly owned or operated by a Loan Party has been used as
a
treatment or disposal site for any Hazardous Material; (vi) no Loan Party
has failed to report to the proper Governmental Authority any Release which
is
required to be so reported by any Environmental Laws; (vii) each Loan Party
holds all licenses, permits and approvals required under any Environmental
Laws
in connection with the operation of the business carried on by it; and (viii)
no
Loan Party has received any notification pursuant to any Environmental Laws
that
(A) any work, repairs, construction or Capital Expenditures are required to
be
made in respect as a condition of continued compliance with any Environmental
Laws, or any license, permit or approval issued pursuant thereto or (B) any
license, permit or approval referred to above is about to be reviewed, made,
subject to limitations or conditions, revoked, withdrawn or
terminated.
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(s) Insurance.
Each
Loan Party keeps its property adequately insured and maintains
(i) insurance to such extent and against such risks, including fire, as is
customary with companies in the same or similar businesses, (ii) workmen's
compensation insurance in the amount required by applicable law, (iii) public
liability insurance, which shall include product liability insurance, in the
amount customary with companies in the same or similar business against claims
for personal injury or death on properties owned, occupied or controlled by
it,
and (iv) such other insurance as may be required by law or as may be reasonably
required by the Collateral Agent (including, without limitation, against
larceny, embezzlement or other criminal misappropriation). Schedule 0
sets
forth a list of all insurance maintained by each Loan Party on the Effective
Date.
(t) Use
of
Proceeds.
(i) The
proceeds of the Term Loan A shall be used to (A) refinance existing indebtedness
of the Borrower, (B) pay fees and expenses in connection with the transactions
contemplated hereby, and (C) fund working capital and other general corporate
purposes of the Borrower, (ii) the Revolving Loans shall be used to (A)
refinance existing indebtedness of the Borrower, (B) pay fees and expenses
in
connection with the transactions contemplated hereby, (C) fund working capital
and other general corporate purposes of the Borrower, and (D) fund the Purchase
Price of Permitted Acquisitions subject to the limitations set forth in Section
2.01(b)(iv), and (iii) the proceeds of the Term Loan B shall be used to (A)
fund
the Purchase Price of Permitted Acquisitions and the Call Center Capital
Expenditures, and (B) fund working capital and other general corporate needs
of
the Borrower subject to the limitations set forth in Section 2.01(b)(v). The
Letters of Credit will be used for general working capital
purposes.
(u) Solvency.
After
giving effect to the transactions contemplated by this Agreement and before
and
after giving effect to each Loan and Letter of Credit, the Loan Parties on
a
consolidated basis are Solvent.
(v) Location
of Bank Accounts.
Schedule 0
sets
forth a complete and accurate list as of the Effective Date of all deposit,
checking and other bank accounts, all securities and other accounts maintained
with any broker dealer and all other similar accounts maintained by each Loan
Party, together with a description thereof (i.e.,
the
bank or broker dealer at which such deposit or other account is maintained
and
the account number and the purpose thereof).
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(w) Intellectual
Property.
Except
as set forth on Schedule 0,
each
Loan Party owns or licenses or otherwise has the right to use all licenses,
permits, patents, patent applications, trademarks, trademark applications,
service marks, tradenames, copyrights, copyright applications, franchises,
authorizations, non-governmental licenses and permits and other intellectual
property rights that are necessary for the operation of its business, without
infringement upon or conflict with the rights of any other Person with respect
thereto, except for such infringements and conflicts which, individually or
in
the aggregate, could not have a Material Adverse Effect. Set forth on
Schedule 0
is a
complete and accurate list as of the Effective Date of all such material
licenses, permits, patents, patent applications, trademarks, trademark
applications, service marks, tradenames, copyrights, copyright applications,
franchises, authorizations, non-governmental licenses and permits and other
intellectual property rights of each Loan Party. No slogan or other advertising
device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by any Loan Party infringes upon
or conflicts with any rights owned by any other Person, and no claim or
litigation regarding any of the foregoing is pending or threatened, except
for
such infringements and conflicts which could not reasonably be expected to
have,
individually or in the aggregate, a Material Adverse Effect. To the knowledge
of
each Loan Party, no patent, invention, device, application, principle or any
statute, law, rule, regulation, standard or code is pending or proposed, which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(x) Material
Contracts.
Set
forth on Schedule 0
is a
complete and accurate list as of the Effective Date of all Material Contracts
of
each Loan Party, showing the parties and subject matter thereof and amendments
and modifications thereto. Each such Material Contract (i) is in full force
and effect and is binding upon and enforceable against each Loan Party that
is a
party thereto and, to the knowledge of such Loan Party, all other parties
thereto in accordance with its terms, and (ii) is not in default due to the
action of any Loan Party or, to the knowledge of any Loan Party, any other
party
thereto.
(y) Investment
Company Act.
None of
the Loan Parties is
an
"investment company" or an "affiliated person" or "promoter" of, or "principal
underwriter" of or for, an "investment company", as such terms are defined
in
the Investment Company Act of 1940, as amended.
(z) Employee
and Labor Matters.
Except
as
could not reasonably be expected to have a Material Adverse Effect, there is
(i)
no unfair labor practice complaint pending or, to the knowledge
of any
Loan
Party,
threatened against any Loan
Party
before
any Governmental Authority and no grievance or arbitration proceeding pending
or
threatened against any Loan
Party
which
arises out of or under any collective bargaining agreement, (ii) no strike,
labor dispute, slowdown, stoppage or similar action or grievance pending or
threatened against any Loan
Party
or (iii)
to the knowledge
of any
Loan
Party,
no
union representation question existing with respect to the employees of any
Loan
Party and
no
union organizing activity taking place with respect to any of the employees
of
any Loan Party. No Loan Party or any of its ERISA Affiliates has incurred any
liability or obligation under the Worker Adjustment and Retraining Notification
Act ("WARN")
or
similar
state, provincial or foreign law,
which
remains unpaid or unsatisfied. The hours worked and payments made to employees
of any Loan Party have not been in violation of the Fair Labor Standards Act,
the
applicable Canadian provincial employment standards legislation or any other
applicable legal requirements,
except
to the extent such violations could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. All material
payments due from any Loan Party 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 Loan Party, except where the failure to do so could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
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(aa) No
Bankruptcy Filing.
Except
as set forth on Schedule 6.01(aa), no Loan Party is
contemplating either an Insolvency Proceeding or the liquidation of all or
a
major portion of such Loan
Party's assets
or
property, and no Loan Party has
any
knowledge of any Person contemplating an Insolvency Proceeding against
it.
(bb) Name;
Jurisdiction of Organization; Organizational ID Number; Chief Place of Business;
Chief Executive Office; FEIN.
Schedule 0
sets
forth a complete and accurate list as of the date hereof of (i) the exact
legal name of each Loan Party, (ii) the jurisdiction of organization of
each Loan Party, (iii) the organizational identification number of each
Loan Party (or indicates that such Loan Party has no organizational
identification number), (iv) the chief place of business of each
Loan
Party,
(v) the chief executive office of each Loan
Party and (vi) the federal employer identification number or Canada Revenue
Agency business number, of each Loan Party, if applicable.
(cc) [Intentionally
Omitted].
(dd) U.S.
Security Interests.
Each
Security Agreement creates in favor of the Collateral Agent, for the benefit
of
the Agents, the Lenders and the Bank Product Providers, a legal, valid and
enforceable security interest in the Collateral secured thereby. Upon the filing
of the UCC-1 financing statements described in 0
and the
recording of the Collateral Assignments for Security referred to in each
Security Agreement in the United States Patent and Trademark Office and the
United States Copyright Office, as applicable, such security interests in and
Liens on the Collateral granted thereby shall be perfected, first priority
security interests (subject to Permitted Liens).
(ee) Canadian
Security Interests.
Each
Canadian Security Agreement creates in favor of the Collateral Agent, for the
benefit of the Agents, the Lenders and the Bank Product Providers, a legal,
valid and enforceable security interest in the Collateral secured thereby.
Liens
on the Collateral granted by each Canadian Security Agreement are perfected,
first priority security interests (subject to Permitted Liens).
(ff) No
Default.
No
Event of Default has occurred and is continuing and no condition exists which
constitutes a Default or an Event of Default.
(gg) Withholdings
and Remittances.
Each
Loan
Party has (i) withheld from each payment made to any of its past or present
employees, officers and directors, and to any nonresident of the country in
which it is resident, the amount of all material taxes and other deductions
required to be withheld therefrom and has paid the same to the proper tax or
other receiving officers within the time required under any applicable
legislation and (ii) collected and remitted to the appropriate tax authority
when required by law to do so all material amounts collectible and remittable
in
respect of goods and services tax and similar provincial or state taxes, and
has
paid all such material mounts payable by it on account of sales taxes including
goods and services and other value-added taxes (for purposes of this paragraph,
the amount of a tax is material if it equals or exceeds $2,000,000 in the
aggregate for any Loan Party.
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ARTICLE
VII
COVENANTS
OF THE LOAN
PARTIES
Section
7.01 Affirmative
Covenants .
So long
as any principal of or interest on any Loan, Reimbursement Obligation, Letter
of
Credit Obligation or any other Obligation (whether or not due) shall remain
unpaid (other
than contingent indemnification obligations to the extent no claim giving rise
thereto has been asserted)
or any
Lender shall have any Commitment hereunder, each Loan Party will, unless the
Required Lenders shall otherwise consent in writing:
(a) Reporting
Requirements.
Furnish
to the Collateral Agent (for prompt dissemination by the Collateral Agent to
the
Lenders in the case of the items described in clauses (i) through (iv) and
(vi)
below):
(i) (A)
as
soon as available, and in any event within 90 days after the end of each Fiscal
Year of the Parent and its Subsidiaries, consolidated balance sheets,
consolidated statements of operations and retained earnings and consolidated
statements of cash flows of the Parent and its Subsidiaries as at the end of
such Fiscal Year, setting forth in each case in comparative form the
corresponding figures for the immediately preceding Fiscal Year, all in
reasonable detail and prepared in accordance with GAAP, and accompanied by
a
report and an unqualified opinion, prepared in accordance with generally
accepted auditing standards, of independent certified public accountants of
recognized standing selected by the Parent and satisfactory to the Agents (which
opinion shall be without (x) a "going concern" or like qualification or
exception, (y) any qualification or exception as to the scope of such
audit, or (z) any qualification which relates to the treatment or
classification of any item and which, as a condition to the removal of such
qualification, would require an adjustment to such item, the effect of which
would be to cause any noncompliance with the provisions of 0);
and (B)
concurrently with delivery to the SEC (and promptly after such delivery, a
notice to the Collateral Agent of such delivery), any financial statements
contained in Form 10-K filed with the SEC, provided
that
such financial statements shall be deemed delivered upon the filing of such
financial statements on ▇▇▇▇▇ (or any successor system of the SEC);
(ii) as
soon
as available, and in any event within 55 days after the end of each fiscal
month
of the Parent and its Subsidiaries commencing with the first fiscal month of
the
Parent and its Subsidiaries ending after the Effective Date, the internally
prepared monthly financial reporting package in substantially the form of
Exhibit I hereto;
(iii) (A)
as
soon as available and in any event within 55 days after the end of each of
the
first three fiscal quarters of the Parent and its Subsidiaries commencing with
the first fiscal quarter of the Parent and its Subsidiaries ending after the
Effective Date, condensed consolidated balance sheets, statements of operations
and statements of cash flows of the Parent and its Subsidiaries as at the end
of
such quarter, and for the period commencing at the end of the immediately
preceding Fiscal Year and ending with the end of such quarter, setting forth
in
each case in comparative form the figures for the corresponding date or period
of the immediately preceding Fiscal Year, all in reasonable detail and certified
by an Authorized Officer of the Parent as fairly presenting, in all material
respects, the financial position of the Parent and its Subsidiaries as of the
end of such quarter and the results of operations and cash flows of the Parent
and its Subsidiaries for such quarter, in accordance with GAAP applied in a
manner consistent with that of the most recent audited financial statements
of
the Parent and its Subsidiaries furnished to the Agents and the Lenders, subject
to normal year-end adjustments, and
(B)
concurrently with delivery to the SEC (and promptly after such delivery, a
notice to the Collateral Agent of such delivery), any financial statements
contained in Form 10-Q filed with the SEC, provided
that
such financial statements shall be deemed delivered upon the filing of such
financial statements on ▇▇▇▇▇ (or any successor system of the SEC);
-70-
(iv) as
soon
as available, and in any event within 55 days after the end of each of the
first
three fiscal quarters of the Parent and its Subsidiaries commencing with the
first fiscal quarter of the Parent and its Subsidiaries ending after the
Effective Date (and simultaneously with the delivery of the financial statements
required under clause (i) of this Section 7.01(a)), a Compliance Certificate
of
an Authorized Officer of the Parent (A) stating that such Authorized Officer
has
reviewed the provisions of this Agreement and the other Loan Documents and
has
made or caused to be made under his or her supervision a review of the condition
and operations of the Parent and its Subsidiaries during the period covered
by
such financial statements with a view to determining whether the Parent and
its
Subsidiaries were in compliance with all of the provisions of this Agreement
and
such Loan Documents at the times such compliance is required hereby and thereby,
and that such review has not disclosed, and such Authorized Officer has no
knowledge of, the existence during such period of an Event of Default or Default
or, if an Event of Default or Default existed, describing the nature and period
of existence thereof and the action which the Parent and its Subsidiaries
propose to take or have taken with respect thereto and (B) attaching a
schedule showing the calculations specified in 0;
(v) as
soon
as available, and in any event within 55 days after the end of the fourth fiscal
quarter of the Parent and its Subsidiaries, a certificate from an Authorized
Officer of the Parent attaching a schedule showing the estimated calculations
of
the financial covenants specified in 0
for the
most recently ended fiscal quarter;
(vi) as
soon
as available and in any event not later than 30 days after the end of each
Fiscal Year, financial projections, supplementing and superseding the financial
projections referred to in 0(A),
prepared on a quarterly basis and otherwise in form and substance satisfactory
to the Agents, for the immediately succeeding Fiscal Year for the Parent and
its
Subsidiaries, all such financial projections to be reasonable, to be prepared
on
a reasonable basis and in good faith, and to be based on assumptions believed
by
the Parent to be reasonable at the time made and from the information then
available to the Parent;
(vii) promptly
after submission to any Governmental Authority, all documents and information
furnished to such Governmental Authority in connection with any investigation
of
any Loan Party other than routine inquiries by such Governmental
Authority;
-71-
(viii) as
soon
as possible, and in any event within 5 days after the occurrence of an Event
of
Default or Default or the occurrence of any event or development that, to the
knowledge
of the
Parent, could reasonably be expected to have a Material Adverse Effect, the
written statement of an Authorized Officer of the Parent
setting
forth the details of such Event of Default or Default or other event or
development having a Material Adverse Effect and the action which the affected
Loan Party proposes to take with respect thereto;
(ix) to
the
extent that, individually or in the aggregate, could reasonably be expected
to
result in liability of the Loan Parties in an aggregate amount exceeding
$2,000,000, (A) as soon as possible and in any event within 10 days after any
Loan Party or any ERISA Affiliate thereof knows or has reason to know that
(1)
any Reportable Event with respect to any Employee Plan has occurred, (2) any
other Termination Event with respect to any Employee Plan has occurred, or
(3)
an accumulated funding deficiency has been incurred or an application has been
made to the Secretary of the Treasury or other such applicable Governmental
Authority for a waiver or modification of the minimum funding standard
(including installment payments) or an extension of any amortization period
under Section 412 of the Internal Revenue Code or under Canadian Employee
Benefit Laws with respect to an Employee Plan, a statement of an Authorized
Officer of the Borrower
setting
forth the details of such occurrence and the action, if any, which such Loan
Party or such ERISA Affiliate proposes to take with respect thereto, (B)
promptly and in any event within three days after receipt thereof by any Loan
Party or any ERISA Affiliate thereof from the PBGC or other Governmental
Authority, copies of each notice received by any Loan Party or any ERISA
Affiliate thereof of the PBGC's or other Governmental Authority's intention
to
terminate any Plan or to have a trustee appointed to administer any Plan, (C)
promptly and in any event within 10 days after the filing thereof with the
Internal Revenue Service if requested by any Agent, copies of each Schedule
B
(Actuarial Information) to the annual report (Form 5500 Series) with respect
to
each Employee Plan and Multiemployer Plan, (D) promptly and in any event within
10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason
to know that a required installment within the meaning of Section 412 of the
Internal Revenue Code or under Canadian Employee Benefit Laws have not been
made
when due with respect to an Employee Plan, (E) promptly and in any event within
3 days after receipt thereof by any Loan Party or any ERISA Affiliate thereof
from a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice
received by any Loan Party or any ERISA Affiliate thereof concerning the
imposition or amount of withdrawal liability under Section 4202 of ERISA or
indicating that such Multiemployer Plan may enter reorganization status under
Section 4241 of ERISA, and (F) promptly and in any event within 10 days after
any Loan Party or any ERISA Affiliate thereof sends notice of a plant closing
or
mass layoff or termination (as defined in WARN or the applicable Canadian
Employee Benefit Law) to employees, copies of each such notice sent by such
Loan
Party or such ERISA Affiliate thereof;
(x) promptly
after the commencement thereof but in any event not later than 5 days after
service of process with respect thereto on, or the obtaining of knowledge
thereof by, any Loan Party, notice of each action (including any Environmental
Action), suit or proceeding before any court or other Governmental Authority
or
other regulatory body or any arbitrator which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect;
-72-
(xi) as
soon
as possible and in any event within 5 days after execution, receipt or delivery
thereof, copies of any material notices that any Loan Party executes or receives
in connection with any Material Contract;
(xii) as
soon
as possible and in any event within 5 days after execution, receipt or
delivery thereof, copies of any material notices that any Loan Party executes
or
receives in connection with the sale or other Disposition of all or
substantially all of the Capital Stock of, or all or substantially all of the
assets of, any Loan Party;
(xiii) promptly
upon receipt thereof, copies of all financial reports, if any, submitted to
the
Borrower or the Parent by its auditors in connection with any annual or interim
audit of the books thereof; and
(xiv) promptly
upon request, such other information concerning the condition or operations,
financial or otherwise, of any Loan Party as any Agent may from time to time
may
reasonably request.
(b) Additional
Guaranties and Collateral Security.
Cause:
(i) each
Subsidiary (other than Immaterial Subsidiaries) of any
Loan
Party not
in
existence on the Effective Date, to execute and deliver to the Collateral Agent
promptly and in any event within 20 days after the formation, acquisition
or change in status thereof (A) a Guaranty guaranteeing the Obligations, (B)
a
Security Agreement or Canadian Security Agreement (as the case may be), and
if
such Subsidiary has any Subsidiaries, together
with (x) certificates evidencing all of the Capital Stock of any Person owned
by
such Subsidiary, and (y) undated stock powers executed in blank with signature
guaranteed, (C)
one
or more Mortgages creating on the real property of such Subsidiary a perfected,
first priority Lien on such real property, a Title Insurance Policy covering
such real property, a current ALTA survey thereof (in respect of the real
property located in the United States) and a surveyor's certificate, each in
form and substance satisfactory to the Collateral Agent, together with such
other agreements, instruments and documents as the Collateral Agent may require
whether comparable to the documents required under 0
or
otherwise, and (E ) such other agreements, instruments, approvals, legal
opinions (to the extent that the annual Consolidated EBITDA of such Subsidiary
is not less than $2,000,000) or other documents reasonably requested by the
Collateral Agent in order to create, perfect, establish the first priority
of or
otherwise protect any Lien purported to be covered by any such Security
Agreement (or Canadian Security Agreement) or Mortgage or otherwise to effect
the intent that such Subsidiary shall become bound by all of the terms,
covenants and agreements contained in the Loan Documents and that all property
and assets of such Subsidiary shall become Collateral for the Obligations;
and
(ii) each
owner of the Capital Stock of any such Subsidiary (including any Immaterial
Subsidiaries) to execute and deliver promptly and in any event within 20 days
after the formation or acquisition of such Subsidiary a supplement to Security
Agreement, together with (A) certificates
evidencing all of the Capital Stock of such Subsidiary, (B) undated stock
powers or other appropriate instruments of assignment executed in blank
with
signature guaranteed, and (C) such other agreements, instruments, approvals
or other documents requested by the Collateral Agent.
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(c) Compliance
with Laws, Etc.
(i)
Except as could not reasonably be expected to have a Material Adverse Effect,
comply, and cause each of its Subsidiaries to comply, in all respects with
all
applicable laws, rules, regulations, orders (including, without limitation,
all
Environmental Laws and Canadian Employee Benefit Law), judgments and awards
(including any settlement of any claim that, if breached, could give rise to
any
of the foregoing), and (ii) comply, and cause each of its Subsidiaries to
comply, in all material respects with all applicable tax laws, rules,
regulations and orders, such compliance to include, without limitation, (x)
paying before the same become delinquent all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or upon any
of
its properties, and (y) paying all lawful claims which if unpaid might
become a Lien or charge upon any of its properties, except to the extent
contested in good faith by proper proceedings which stay the imposition of
any
penalty, fine or Lien resulting from the non-payment thereof and with respect
to
which adequate reserves have been set aside for the payment thereof in
accordance with GAAP.
(d) Preservation
of Existence, Etc.
Maintain
and preserve, and cause each of its Subsidiaries to maintain and preserve,
its
existence, rights and privileges, and become or remain, and cause each of its
Subsidiaries to become or remain, duly qualified and in good standing in each
jurisdiction in which the character of the properties owned or leased by it
or
in which the transaction of its business makes such qualification necessary,
except to the extent that the failure to be so qualified could not reasonably
be
expected to result in a Material Adverse Effect.
(e) Keeping
of Records and Books of Account.
Keep,
and cause each of its Subsidiaries to keep, adequate records and books of
account, with entries made to permit the preparation of financial statements
in
accordance with GAAP.
(f) Inspection
Rights.
Permit,
and cause each of its Subsidiaries to permit, the agents and representatives
of
any Agent at any time and from time to time during normal business hours upon
reasonable prior notice to the Borrower, or at any time and without notice
to
the Borrower if an Event of Default exists or has occurred and is continuing,
at
the expense of the Borrower,
to
examine and make copies of and abstracts from its records and books of account,
to visit and inspect its properties, to verify materials, leases, notes,
accounts receivable, deposit accounts and its other assets, to conduct audits,
physical counts, valuations, appraisals, environmental assessments or
examinations and to discuss its affairs, finances and accounts with any of
its
directors, officers, managerial employees, independent accountants or any of
its
other representatives. In furtherance of the foregoing, each Loan Party hereby
authorizes its independent accountants, and the independent accountants of
each
of its Subsidiaries, to discuss the affairs, finances and accounts of such
Person (independently or together with representatives of such Person) with
the
agents and representatives of any Agent in accordance with this 0.
(g) Maintenance
of Properties, Etc.
Except
as could not reasonably be expected to have a Material Adverse Effective,
maintain and preserve, and cause each of its Subsidiaries to maintain and
preserve, all of its properties used in the proper conduct of its business
in
good working order and condition, ordinary wear and tear excepted, and comply,
and cause each of its Subsidiaries to comply, at all times with the provisions
of all leases to which it is a party as lessee or under which it occupies
property, so as to prevent any loss or forfeiture thereof or
thereunder.
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(h) Maintenance
of Insurance.
Maintain, and cause each of its Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or associations (including,
without limitation, comprehensive general liability, hazard, rent and business
interruption insurance) with respect to its properties (including all real
properties leased or owned by it) and business, in such amounts and covering
such risks as is required by any Governmental Authority having jurisdiction
with
respect thereto or as is customarily carried in accordance with sound business
practice by companies in similar businesses similarly situated and in any event
in amount, adequacy and scope reasonably satisfactory to the Collateral Agent.
All policies covering the Collateral are to be made payable to the Collateral
Agent for the benefit of the Agents, the Lenders and the Bank Product Providers,
as its interests may appear, in case of loss, under a standard non-contributory
"lender" or "secured party" clause and are to contain such other provisions
as
the Collateral Agent may require to fully protect the Lenders' interest in
the
Collateral and to any payments to be made under such policies. All certificates
of insurance are to be delivered to the Collateral Agent, with the loss payable
and additional insured endorsement in favor of the Collateral Agent and such
other Persons as the Collateral Agent may designate from time to time, and
shall
provide for not less than 30 days' prior written notice to the Collateral Agent
of the exercise of any right of cancellation. If any Loan Party or any of its
Subsidiaries fails to maintain such insurance, the Collateral Agent may arrange
for such insurance, but at the Borrower's expense and without any responsibility
on the Collateral Agent's part for obtaining the insurance, the solvency of
the
insurance companies, the adequacy of the coverage, or the collection of claims.
Upon the occurrence and during the continuance of an Event of Default, the
Collateral Agent shall have the sole right, in the name of the Lenders, any
Loan
Party and its Subsidiaries, to file claims under any insurance policies, to
receive, receipt and give acquittance for any payments that may be payable
thereunder, and to execute any and all endorsements, receipts, releases,
assignments, reassignments or other documents that may be necessary to effect
the collection, compromise or settlement of any claims under any such insurance
policies.
(i) Obtaining
of Permits, Etc.
Obtain,
maintain and preserve, and cause each of its Subsidiaries to obtain, maintain
and preserve, and take all necessary action to timely renew, all material
permits, licenses, authorizations, approvals, entitlements and accreditations
which are necessary or useful in the proper conduct of its
business.
(j) Environmental.
(i) Except as could not reasonably be expected to have a Material Adverse
Effect, keep any property either owned or operated by it or any of its
Subsidiaries free of any Environmental Liens; (ii) except as could not
reasonably be expected to have a Material Adverse Effect, comply, and cause
each
of its Subsidiaries to comply, in all respects with Environmental Laws and
provide to the Collateral Agent any documentation of such compliance which
the
Collateral Agent may reasonably request; (iii) except as could not
reasonably be expected to have a Material Adverse Effect, provide the Agents
written notice within five (5) days of any Release of a Hazardous Material
in
excess of any reportable quantity from or onto property at any time owned or
operated by it or any of its Subsidiaries and take any Remedial Actions required
to ▇▇▇▇▇ said Release; (iv) provide the Agents with written notice within
ten (10) days of the receipt of any of the following: (A) notice that an
Environmental Lien has been filed against any property of any Loan Party or
any
of its Subsidiaries; (B) commencement of any Environmental Action or notice
that an Environmental Action will be filed against any Loan Party or any of
its
Subsidiaries; and (C) notice of a violation, citation or other order, in
each case of clauses (A), (B) and (C) above, which could reasonably be expected
to have a Material Adverse Effect and (v) defend, indemnify and hold
harmless the Agents and the Lenders and their transferees, and their respective
employees, agents, officers and directors, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs or expenses
(including, without limitation, attorney and consultant fees, investigation
and
laboratory fees, court costs and litigation expenses) arising out of
(A) the generation, presence, disposal, Release or threatened Release of
any Hazardous Materials on, under, in, originating or emanating from any
property at any time owned or operated by any Loan Party or any of its
Subsidiaries (or its predecessors in interest or title), (B) any personal
injury (including wrongful death) or property damage (real or personal) arising
out of or related to the presence or Release of such Hazardous Materials,
(C) any request for information, investigation, lawsuit brought or
threatened, settlement reached or order by a Governmental Authority or any
other
Person relating to the presence or Release of such Hazardous Materials,
(D) any violation of any Environmental Law and/or (E) any
Environmental Action filed against any Agent or any Lender.
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(k) Further
Assurances.
Take
such action and execute, acknowledge and deliver, and cause each of its
Subsidiaries to take such action and execute, acknowledge and deliver, at its
sole cost and expense, such agreements, instruments or other documents as any
Agent may reasonably require from time to time in order (i) to carry out
more effectively the purposes of this Agreement and the other Loan Documents,
(ii) to subject to valid and perfected first priority Liens any of the
Collateral or any other property of any Loan Party and its Subsidiaries,
(iii) to establish and maintain the validity and effectiveness of any of
the Loan Documents and the validity, perfection and priority of the Liens
intended to be created thereby, and (iv) to better assure, convey, grant,
assign, transfer and confirm unto each Agent, each Lender and the
L/C Issuer the rights now or hereafter intended to be granted to it under
this Agreement or any other Loan Document. In furtherance of the foregoing,
to
the maximum extent permitted by applicable law, each Loan Party
(i) authorizes each Agent to execute any such agreements, instruments or
other documents in such Loan Party's name and to file such agreements,
instruments or other documents in any appropriate filing office, (ii) authorizes
each Agent to file any financing statement required hereunder or under any
other
Loan Document, and any continuation statement or amendment with respect thereto,
in any appropriate filing office without the signature of such Loan Party,
and
(iii) ratifies the filing of any financing statement, and any continuation
statement or amendment with respect thereto, filed without the signature of
such
Loan Party prior to the date hereof.
(l) [Intentional
Omitted].
(m) [Intentional
Omitted].
(n) Subordination.
Cause
all Indebtedness and other obligations now or hereafter owed by it to any of
its
Affiliates, to be subordinated in right of payment and security to the
Indebtedness and other Obligations owing to the Agents and the Lenders in
accordance with a subordination agreement in form and substance satisfactory
to
the Agents.
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(o) After
Acquired Real Property.
Upon
the acquisition by it or any of its Subsidiaries after the date hereof of any
fee interest in any real property (wherever located) (each such interest being
an "After
Acquired Property")
with a
Current Value (as defined below) in excess of $500,000 promptly (but in any
event within 20 days) after such acquisition so notify the Collateral Agent,
setting forth with specificity a description of the interest acquired, the
location of the real property, any structures or improvements thereon and either
an appraisal or such Loan Party's good-faith estimate of the current value
of
such real property (for purposes of this Section, the "Current
Value").
The
Collateral Agent shall notify such Loan Party whether it intends to require
a
Mortgage and the other documents referred to below. Upon receipt of such notice
requesting a Mortgage, the Person which has acquired such After Acquired
Property shall promptly furnish to the Collateral Agent the following, each
in
form and substance reasonably satisfactory to the Collateral Agent: (i) a
Mortgage with respect to such real property and related assets located at the
After Acquired Property, each duly executed by such Person and in recordable
form; (ii) evidence of the recording of the Mortgage referred to in clause
(i) above in such office or offices as may be necessary or, in the opinion
of
the Collateral Agent, desirable to create and perfect a valid and enforceable
first priority lien on the property purported to be covered thereby or to
otherwise protect the rights of the Agents and the Lenders thereunder,
(iii) a Title Insurance Policy, (iv) a survey of such real property,
certified to the Collateral Agent and to the issuer of the Title Insurance
Policy by a licensed professional surveyor reasonably satisfactory to the
Collateral Agent, and (v) such other documents or instruments (including
guarantees and opinions of counsel) as the Collateral Agent may reasonably
require. The Borrower shall pay all fees and expenses, including reasonable
attorneys' fees and expenses, and all title insurance charges and premiums,
in
connection with each Loan Party's obligations under this 0.
(p) Fiscal
Year.
Cause
the Fiscal Year of the Parent and its Subsidiaries to end on December 31 of
each
calendar year unless the Agents consent to a change in such Fiscal Year (and
appropriate related changes to this Agreement).
(q) Accounts
Payable.
Take
commercially reasonable efforts to cause all material accounts payable owing
by
any Loan Party to be paid in the ordinary course of business, except to the
extent contested in good faith by proper proceedings and with respect to which
adequate reserves have been set aside for the payment thereof in accordance
with
GAAP.
Section
7.02 Negative
Covenants .
So long
as any principal of or interest on any Loan, Reimbursement Obligation, Letter
of
Credit Obligation or any other Obligation (whether or not due) shall remain
unpaid (other
than contingent indemnification obligations to the extent no claim giving rise
thereto has been asserted) or
any
Lender shall have any Commitment hereunder, each Loan Party shall not, unless
the Required Lenders shall otherwise consent in writing:
(a) Liens,
Etc.
Create,
incur, assume or suffer to exist, or permit any of its Subsidiaries to create,
incur, assume or suffer to exist, any Lien upon or with respect to any of its
properties, whether now owned or hereafter acquired; file or suffer to exist
under the Uniform Commercial Code, the PPSA or any similar law or statute of
any
jurisdiction, a financing statement (or the equivalent thereof) that names
it or
any of its Subsidiaries as debtor; sign or suffer to exist any security
agreement authorizing any secured party thereunder to file such financing
statement (or the equivalent thereof); sell any of its property or assets
subject to an understanding or agreement, contingent or otherwise, to repurchase
such property or assets (including sales of accounts receivable) with recourse
to it or any of its Subsidiaries or assign or otherwise transfer, or permit
any
of its Subsidiaries to assign or otherwise transfer, any account or other right
to receive income; other than, as to all of the above, Permitted
Liens.
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(b) Indebtedness.
Create,
incur, assume, guarantee or suffer to exist, or otherwise become or remain
liable with respect to, or permit any of its Subsidiaries to create, incur,
assume, guarantee or suffer to exist or otherwise become or remain liable with
respect to, any Indebtedness other than Permitted Indebtedness.
(c) Fundamental
Changes; Dispositions.
Wind-up, liquidate or dissolve, or merge, consolidate or amalgamate with any
Person, or convey, sell, lease or sublease, transfer or otherwise dispose of,
whether in one transaction or a series of related transactions, all or any
part
of its business, property or assets, whether now owned or hereafter acquired
(or
agree to do any of the foregoing), or purchase or otherwise acquire, whether
in
one transaction or a series of related transactions, all or substantially all
of
the assets of any Person (or any division thereof) (or agree to do any of the
foregoing), or permit any of its Subsidiaries to do any of the foregoing;
provided,
however,
that
(i) any
Subsidiary of any Loan Party (other than the Borrower) may be merged into such
Loan Party or another Subsidiary of such Loan Party, or may consolidate with
another Subsidiary of such Loan Party, so long as (A) no other provision of
this Agreement would be violated thereby, (B) such Loan Party gives the
Agents at least 30 days' prior written notice of such merger or consolidation,
(C) no Default or Event of Default shall have occurred and be continuing
either before or after giving effect to such transaction, (D) the Lenders'
rights in any Collateral, including, without limitation, the existence,
perfection and priority of any Lien thereon, are not adversely affected by
such
merger or consolidation and (E) the surviving Subsidiary, if any, is joined
as a Loan Party hereunder and is a party to a Guaranty and a Security Agreement
or Canadian Security Agreement (pursuant to which the Capital Stock of such
Subsidiary is pledged to the Collateral Agent), as applicable, in each case,
which is in full force and effect on the date of and immediately after giving
effect to such merger or consolidation; and
(ii) any
Loan
Party and its Subsidiaries may (A) (x) sell or otherwise dispose of Inventory
or
obsolete or worn-out equipment in the ordinary course of business, and (y)
sell
or otherwise dispose of other property or assets for cash in an aggregate amount
not less than the fair market value of such property or assets, provided
that the
Net Cash Proceeds of such Dispositions pursuant to this subclause (y) do not
exceed $10,000,000 in the aggregate in any twelve-month period, (B) lease
or
sub-lease a Facility that would not materially interfere with the required
use
of such Facility by the Parent or any other Loan Party, (C) dispose of Permitted
Investments in the ordinary course of business, (D) make Dispositions permitted
by Section 7.02(c)(i), (E) license, on a non-exclusive basis, patents,
trademarks, copyrights and know-how to third Persons, the Parent or any other
Loan Party in the ordinary course of business, (F) make Dispositions of
defaulted
Accounts in order to realize on such Accounts in a commercially reasonable
manner, (G) make Dispositions
of non-core assets listed in Schedule 7.02(c) hereto;
provided
that in
case of clauses (A) through (G), the Net Cash Proceeds are paid to the
Administrative Agent for the benefit of the Lenders pursuant to the terms of
0.
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(d) Change
in Nature of Business.
Make,
or permit any of its Subsidiaries to make, any change in the nature of its
business as described in 0.
(e) Loans,
Advances, Investments, Etc.
Make or
commit or agree to make any loan, advance guarantee of obligations, other
extension of credit or capital contributions to, or hold or invest in or commit
or agree to hold or invest in, or purchase or otherwise acquire or commit or
agree to purchase or otherwise acquire any shares of the Capital Stock, bonds,
notes, debentures or other securities of, or make or commit or agree to make
any
other investment in, any other Person, or purchase or own any 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, or permit
any
of its Subsidiaries to do any of the foregoing, except
for: (i) investments, including any contracted commitments, existing on the
date
hereof and
set
forth on Schedule 7.02(e) hereto, but not any increase in the amount
thereof (other
than increases in connection with the exercise of put or call options described
in such Schedule) or
any
other modification of the terms thereof,
(ii) loans and advances by it to its Subsidiaries and Minority-Owned
Entities and by such Subsidiaries or Minority-Owned Entities to it, made in
the
ordinary course of business, provided that the aggregate principal amount of
such loans and advances made to Subsidiaries or Minority-Owned Entities that
are
not Loan Parties shall not exceed $1,000,000 at any one time outstanding,
(iii) Permitted Investments, (iv) Permitted Acquisitions, and (v)
Additional Permitted Investments.
(f) Sale/leaseback
Obligations.
Create,
incur or suffer to exist, or permit any of its Subsidiaries to create, incur
or
suffer to exist, any obligations as lessee for the payment of rent for any
real
or personal property in connection with any sale and leaseback
transaction.
(g) Capital
Expenditures.
(3)
Make or
commit or agree to make, or permit any of its Subsidiaries to make or commit
or
agree to make, any Capital Expenditure (by purchase or Capitalized Lease) that
would cause the aggregate amount of all Capital Expenditures (other than Call
Center Capital Expenditures) made by the Loan Parties and their Subsidiaries
to
exceed $15,000,000 in any Fiscal Year, provided
that up
to 25% of any such amount referred to above, if not so expended in the Fiscal
Year for which it is permitted, may be carried over for expenditure in the
next
succeeding Fiscal Year. Upon
the
consummation of each Permitted Acquisition after the Effective Date, the maximum
amount of Capital Expenditures (other than Call Center Capital Expenditures)
permitted thereafter shall be increased by an amount equal to 10% of the
consolidated EBITDA of the Target subject to such acquisition (calculated on
the
same basis as set forth in the definition of "Consolidated EBITDA") for the
most
recently completed fiscal year of such Target (which amount shall be determined
in good faith by the Parent, based upon the audited financial statements (or,
to
the extent audited financial statements are not available, unaudited financial
statements) of such Target for such fiscal year furnished to the Collateral
Agent), provided
that,
the aggregate amount of such increases permitted under this Section 7.02(g)(i)
shall not exceed $1,000,000.
(ii) Notwithstanding
the provisions set forth in paragraph (g)(i) above, Accent Marketing may make
additional Capital Expenditures in
connection with the development, construction, ownership and operation of Call
Centers
developed after the Effective Date ("Call
Center Capital Expenditures")
in an
aggregate amount not to exceed (x) $5,000,000 in any Fiscal Year, provided
that up
to 25% of any such amount, if not so expended in the Fiscal Year for which
it is
permitted, may be carried over for expenditure in the next succeeding Fiscal
Year, and (y) $15,000,000 during the term of this Agreement, in each case
so long as:
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(A)
the
Parent delivers to the Agents, at least 30 days prior to the initial allocation
of such Capital Expenditures as Call Center Capital Expenditures for each Call
Center developed after the Effective Date, financial projections in form and
substance reasonably acceptable to the Agents demonstrating that (1) the
Consolidated EBITDA for such Call Center resulting from such Capital
Expenditures in the first two years (or the first year, in the case the related
customer contract has a term less than three years) following the initial date
of the revenue generating operations of such Call Center exceeds 100% of the
amount of such Capital Expenditures, (2) such Call Center shall be profitable
within three months after the initial date of its revenue generating operations,
and (3) the anticipated build-out period of such Call Center,
(B)
the
Agents shall have received a certificate from an Authorized Officer of the
Parent certifying that, with respect to each Call Center developed after the
Effective Date, (1) the Consolidated EBITDA for such Call Center resulting
from
the corresponding Call Center Capital Expenditures in the first two years (or
the first year, in the case the related customer contract has a term less than
three years) following the initial date of the revenue generating operations
of
such Call Center exceeded 100% of the amount of such Capital Expenditures,
and
(2) such Call Center became profitable within three months after the initial
date of its revenue generating operations, and
(C)
Accent Marketing shall have entered into contracts with its customers in
connection with such Call Centers for a term of not less than three years (or
two years, so long as the Consolidated EBITDA for such Call Center resulting
from such Capital Expenditures in the first year following the initial date
of
the revenue generating operations of such Call Center exceeds 100% of the amount
of such Capital Expenditures) after the initial date of the revenue generating
operations of such Call Center and which require such customers to make minimum
payments to support the financial projections delivered to the Agents pursuant
to clause (ii)(A) above.
(h) Restricted
Payments. (i) Declare
or pay any dividend or other distribution, direct or indirect, on account of
any
Capital Stock of any Loan Party or any of its Subsidiaries, now or hereafter
outstanding, (ii) make any repurchase, redemption, retirement, defeasance,
sinking fund or similar payment, purchase or other acquisition for value, direct
or indirect, of any Capital Stock of any Loan Party or any direct or indirect
parent of any Loan Party, now or hereafter outstanding, (iii) make any payment
to retire, or to obtain the surrender of, any outstanding warrants, options
or
other rights for the purchase or acquisition of shares of any class of Capital
Stock of any Loan Party, now or hereafter outstanding, (iv) return any Capital
Stock to any shareholders or other equity holders of any Loan Party or any
of
its Subsidiaries, or make any other distribution of property, assets, shares
of
Capital Stock, warrants, rights, options, obligations or securities thereto
as
such or (v) pay any management fees or any other fees or expenses (including
the
reimbursement thereof by any Loan Party or any of its Subsidiaries) pursuant
to
any management (for the avoidance of doubt, other than the Management Service
Agreement so long as the nature of the employment covered by such agreement
is
the same as in effect on the date hereof), consulting or other services
agreement to any of the shareholders or other equityholders of any Loan Party
or
any of its Subsidiaries or other Affiliates, or to any other Subsidiaries or
Affiliates of any Loan Party (collectively, the "Restricted
Payments");
provided,
however,
(A) any Loan Party may pay dividends to the Parent (1) in amounts
necessary to pay customary expenses of the Parent in the ordinary course of
its
business as a public holding company (including salaries and related reasonable
and customary expenses incurred by employees of the Parent) and (2) in
amounts necessary to pay taxes when due and owing by the Parent, (B) any
Subsidiary of the Borrower may make Restricted Payments to the Borrower,
(C) the Parent may pay dividends in the form of common Capital Stock, (D)
any Loan Party may make Restricted Payments to the Shareholders and employees
and management personnel of the Shareholders pursuant to the terms of the
shareholder agreements or similar agreements between such Loan Party and such
Shareholders, (E) the Parent and the Borrower may make any purchase, repurchase
or redemption of restricted stock units and/or restricted stock of the Parent,
any of its Subsidiaries or Minority-Owned Entities to satisfy any applicable
tax
withholding obligations of directors, officers or employees of the Parent,
such
Subsidiary or Minority-Owned Entity, provided
that any
such purchase, repurchase or redemption is permitted pursuant to the underlying
equity incentive plan or restricted stock or restricted stock unit grant, and
(F) any Loan Party may make payments in respect of Earnout Amounts made pursuant
to the terms of the definitive documentation for any Permitted Acquisition,
provided further
that, in
the case of clause (D), (I) no
Default or Event of Default has occurred and is continuing or
would
arise as a result of such Restricted Payments, and (II) the Loan Parties shall
be in compliance with the financial covenants set forth in 0
calculated on a pro forma basis after giving effect to such Restricted Payments
based upon the Loan Parties' financial statements delivered to the Agents
pursuant to Section 7.01(a) for the most recently ended fiscal month,
provided further
that, in
each case of clauses (A) through (C), (E) and (F) above, at the election of
the
Collateral Agent, which the Collateral Agent may and, upon the direction of
the
Required Lenders, shall make by notice to the Borrower,
no such
payment shall be made if an Event of Default shall have occurred and be
continuing.
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(i) Federal
Reserve Regulations.
Permit
any Loan or the proceeds of any Loan under this Agreement to be used for any
purpose that would cause such Loan to be a margin loan under the provisions
of
Regulation T, U or X of the Board.
(j) Transactions
with Affiliates.
Enter
into, renew, extend or be a party to, or permit any of its Subsidiaries to
enter
into, renew, extend or be a party to, any transaction or series of related
transactions (including, without limitation, the purchase, sale, lease, transfer
or exchange of property or assets of any kind or the rendering of services
of
any kind) with any Affiliate, except (i) in the ordinary course of business
in a manner and to an extent consistent with past practice and necessary or
desirable for the prudent operation of its business, for fair consideration
and
on terms no less favorable to it or its Subsidiaries than would be obtainable
in
a comparable arm's length transaction with a Person that is not an Affiliate
thereof, (ii) transactions among the Borrower, its Subsidiaries and
Minority-Owned Entities (provided such Subsidiaries and Minority-Owned Entities
are Loan Parties), and (iii) transactions permitted by Section
7.02(e).
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(k) Limitations
on Dividends and Other Payment Restrictions Affecting
Subsidiaries.
Create
or otherwise cause, incur, assume, suffer or permit to exist or become effective
any consensual encumbrance or restriction of any kind on the ability of any
Subsidiary of any Loan Party (i) to pay dividends or to make any other
distribution on any shares of Capital Stock of such Subsidiary owned by any
Loan
Party or any of its Subsidiaries, (ii) to pay or prepay or to subordinate
any Indebtedness owed to any Loan Party or any of its Subsidiaries,
(iii) to make loans or advances to any Loan Party or any of its
Subsidiaries or (iv) to transfer any of its property or assets to any Loan
Party or any of its Subsidiaries, or permit any of its Subsidiaries to do any
of
the foregoing; provided, however, that
nothing in any of clauses (i) through (iv) of this 0
shall
prohibit or restrict compliance with:
(A) this
Agreement and the other Loan Documents;
(B) any
agreements in effect on the date of this Agreement and described on
Schedule 0;
(C) any
applicable law, rule or regulation (including, without limitation, applicable
currency control laws and applicable state corporate statutes restricting the
payment of dividends in certain circumstances);
(D) in
the
case of clause (iv) any agreement setting forth customary restrictions on the
subletting, assignment or transfer of any property or asset that is a lease,
license, conveyance or contract of similar property or assets; or
(E) in
the
case of clause (iv) any agreement, instrument or other document evidencing
a
Permitted Lien from restricting on customary terms the transfer of any property
or assets subject thereto.
(l) Limitation
on Issuance of Capital Stock.
Other
than with respect to the Parent, issue or sell or enter into any agreement
or
arrangement for the issuance and sale of, or permit any of its Subsidiaries
to
issue or sell or enter into any agreement or arrangement for the issuance and
sale of, any shares of its Capital Stock, any securities convertible into or
exchangeable for its Capital Stock or any warrants, except for, in the case
of
any Loan Party other than the Parent, the issuance and sale of shares of such
Loan Party's Capital Stock and any securities convertible into or exchangeable
for such Loan Party's Capital Stock granted or issued to such Loan Party's
senior officers and management personnel in an aggregate amount not to exceed
30% of the aggregate outstanding shares of such Loan Party's Capital Stock
as of
the Effective Date.
(m) Modifications
of Indebtedness, Organizational Documents and Certain Other Agreements;
Etc.
(i)
Amend, modify or otherwise change (or permit the amendment, modification or
other change in any manner of) any of the provisions of any of its or its
Subsidiaries' Indebtedness or of any instrument or agreement (including, without
limitation, any purchase agreement, indenture, loan agreement or security
agreement) relating to any such Indebtedness if such amendment, modification
or
change would shorten the final maturity or average life to maturity of, or
require any payment to be made earlier than the date originally scheduled on,
such Indebtedness, would increase the interest rate applicable to such
Indebtedness, would change the subordination provision, if any, of such
Indebtedness, or would otherwise be adverse to the Lenders or the issuer of
such
Indebtedness in any respect, (ii) except for the Obligations, make any
voluntary or optional payment, prepayment, redemption, defeasance, sinking
fund
payment or other acquisition for value of any of its or its Subsidiaries'
Indebtedness (including, without limitation, by way of depositing money or
securities with the trustee therefor before the date required for the purpose
of
paying any portion of such Indebtedness when due), or refund, refinance, replace
or exchange any other Indebtedness for any such Indebtedness (except to the
extent such Indebtedness is otherwise expressly permitted by the definition
of
"Permitted Indebtedness"), or make any payment, prepayment, redemption,
defeasance, sinking fund payment or repurchase of any outstanding Indebtedness
as a result of any asset sale, change of control, issuance and sale of debt
or
equity securities or similar event, or give any notice with respect to any
of
the foregoing, (iii) except as permitted by 0,
amend,
modify or otherwise change its name, jurisdiction of organization,
organizational identification number or FEIN or (iv) amend, modify or otherwise
change its certificate of incorporation or bylaws (or other similar
organizational documents), including, without limitation, by the filing or
modification of any certificate of designation, or any agreement or arrangement
entered into by it, with respect to any of its Capital Stock (including any
shareholders' agreement), or enter into any new agreement with respect to any
of
its Capital Stock, except any such amendments, modifications or changes or
any
such new agreements or arrangements pursuant to this clause (iv) that
either individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
-82-
(n) Investment
Company Act of 1940.
Engage
in any business, enter into any transaction, use any securities or take any
other action or permit any of its Subsidiaries to do any of the foregoing,
that
would cause it or any of its Subsidiaries to become subject to the registration
requirements of the Investment Company Act of 1940, as amended, by virtue of
being an "investment company" or a company "controlled" by an "investment
company" not entitled to an exemption within the meaning of such
Act.
(o) ERISA .
Except
as could not reasonably be expected to have a Material Adverse Effect, (i)
engage, or permit any ERISA Affiliate to engage, in any transaction described
in
Section 4069 of ERISA; (ii) engage, or permit any ERISA Affiliate to
engage, in any prohibited transaction described in Section 406 of ERISA or
4975
of the Internal Revenue Code for which a statutory or class exemption is not
available or a private exemption has not previously been obtained from the
U.S.
Department of Labor; (iii) adopt or permit any ERISA Affiliate to adopt any
employee welfare benefit plan within the meaning of Section 3(1) of ERISA which
provides benefits to employees after termination of employment other than as
required by Section 601 of ERISA or applicable law; (iv) fail to make any
contribution or payment to any Multiemployer Plan which it or any ERISA
Affiliate may be required to make under any agreement relating to such
Multiemployer Plan, or any law pertaining thereto; or (v) fail, or permit any
ERISA Affiliate to fail, to pay any required installment or any other payment
required under Section 412 of the Internal Revenue Code on or before the due
date for such installment or other payment.
(p) Environmental.
(i)
Permit the use, handling, generation, storage, treatment, Release or disposal
of
Hazardous Materials at any property owned or leased by it or any of its
Subsidiaries, except in compliance with Environmental Laws and so long as such
use, handling, generation, storage, treatment, Release or disposal of Hazardous
Materials does not result in a Material Adverse Effect; or (ii) assume through
agreement by it or any of its Subsidiaries any Environmental Liabilities and
Costs except as could not reasonably be expected to have a Material Adverse
Effect.
-83-
(q) Certain
Agreements.
Agree
to any amendment or other change to or waiver of any of its rights under any
Material Contract to the extent such amendment, change or waiver could
materially adverse to its interests or the interests of the Agents and the
Lenders.
(r) Excess
Cash.
Notwithstanding anything contained herein to the contrary, neither the Parent
nor any of its Subsidiaries shall accumulate or maintain cash in bank accounts
(in excess of checks outstanding against such accounts and amounts necessary
to
meet minimum balance requirements), cash equivalents and Permitted Investments
in an aggregate amount in excess of $2,000,000 (excluding (i) the amounts
deposited into the Cash Management Accounts and accounts specifically and
exclusively used for payroll, payroll taxes and other employee wage and benefit
payments to or for the benefit of any Loan Party's employees and sales taxes,
and (ii) the amount of any cash in bank accounts, cash equivalents and Permitted
Investments of (x) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Communications Inc. and (y) Veritas
Communications Inc., so long as such Person is not a Loan Party) for a period
of
more than 5 consecutive Business Days (or, during the months of January and
December in any calendar year, for VitroRobertson LLC, Hello Design, LLC and
any
other Loan Party with bank accounts located in the State of California (with
respect to such bank accounts) for a period of more than 8 consecutive Business
Days, until such Person's bank accounts have been moved to accounts held with
a
Cash Management Bank), provided
that any
Loan Party may, at the request of a client, set aside media and
production-related advances made by such client in escrow accounts which are
not
Cash Management Accounts. The
Parent shall use reasonable efforts to cause VitroRobertson LLC, Hello
Design, LLC and
any
other Loan Party with bank accounts located in the State of California (with
respect to such bank accounts) to transfer
cash held in their existing bank accounts to accounts maintained by a Cash
Management Bank.
Section
7.03 Financial
Covenants .
So long
as any principal of or interest on any Loan, Reimbursement Obligation, Letter
of
Credit Obligation or any other Obligation (whether or not due) shall remain
unpaid or any Lender shall have any Commitment hereunder, each Loan Party shall
not, unless the Required Lenders shall otherwise consent in
writing:
(a) Senior
Leverage Ratio.
Permit
the Senior Leverage Ratio,
for any
period of four (4) consecutive fiscal quarters of the Parent and its
Subsidiaries, as of the end of each fiscal quarter set forth below, to be
greater than the applicable ratio set forth opposite
such period:
-84-
|
Applicable
Period
|
Senior
Leverage Ratio
|
|
|
June
30, 2007
|
3.2500:1.00
|
|
|
September
30, 2007
|
3.2500:1.00
|
|
|
December
31, 2007
|
3.2500:1.00
|
|
|
March
31, 2008
|
3.2500:1.00
|
|
|
June
30, 2008
|
3.2500:1.00
|
|
|
September
30, 2008
|
3.2500:1.00
|
|
|
December
31, 2008
|
3.2500:1.00
|
|
|
March
31, 2009
|
3.2500:1.00
|
|
|
June
30, 2009
|
3.2500:1.00
|
|
|
September
30, 2009
|
3.2500:1.00
|
|
|
December
31, 2009
|
3.2500:1.00
|
|
|
March
31, 2010
|
3.2500:1.00
|
|
|
June
30, 2010
|
3.1875:1.00
|
|
|
September
30, 2010
|
3.1250:1.00
|
|
|
December
31, 2010
|
3.0625:1.00
|
|
|
March
31, 2011
|
3.0000:1.00
|
|
|
June
30, 2011
|
2.9375:1.00
|
|
|
September
30, 2011
|
2.8750:1.00
|
|
|
December
31, 2011
|
2.8125:1.00
|
|
|
March
31, 2012
|
2.7500:1.00
|
-85-
(b) Fixed
Charge Coverage Ratio.
Permit
the Fixed Charge Coverage Ratio of the Parent and its Subsidiaries,
(i)
as
of
the
end
of
each
period of four (4) consecutive fiscal quarters of the Parent and its
Subsidiaries ending June 30, 2007, September 30, 2007, December 31, 2007 and
March 31, 2008, to be less than 1.20:1.00, (ii) as of the
end
of
each
period of four (4) consecutive fiscal quarters of the Parent and its
Subsidiaries ending June 30, 2008, to be less than 1.25:1.00, and (iii) as
of
the
end
of
each
period of four (4) consecutive fiscal quarters of the Parent and its
Subsidiaries thereafter, to be less than 1.30:1.00.
(c) Consolidated
EBITDA.
Permit
Consolidated EBITDA of the Parent and its Subsidiaries, for any period of four
(4) consecutive fiscal quarters of the Parent and its Subsidiaries, commencing
with the period ending June 30, 2007, to be less than $30,000,000. Upon
the
consummation of each Permitted Acquisition after the Effective Date, the minimum
Consolidated EBITDA covenant level thereafter shall be increased by an amount
equal to 100% of the consolidated EBITDA of the Target subject to such
acquisition (calculated on the same basis as set forth in the definition of
"Consolidated EBITDA") for the most recently completed fiscal year of such
Target (which amount shall be determined in good faith by the Parent, based
upon
the audited financial statements (or, to the extent audited financial statements
are not available, unaudited financial statements) of such Target for such
fiscal year furnished to the Collateral Agent).
ARTICLE
VIII
MANAGEMENT,
COLLECTION AND STATUS OF
ACCOUNTS
AND OTHER COLLATERAL
Section
8.01 Collection
of Accounts; Management of Collateral .
xii)
The Loan
Parties shall (i) establish and maintain cash management services of a type
and
on terms satisfactory to Administrative Agent at one or more of the banks set
forth on Schedule 8.01 (each a "Cash
Management Bank"),
and
shall take such reasonable steps to enforce, collect and receive all amounts
owing on the Accounts of Loan Parties or any of their Subsidiaries, except
as
set forth on Schedule 8.01, and (ii) deposit or cause to be deposited promptly,
and in any event no later than the first Business Day after the date of receipt
thereof, all proceeds in respect of any Collateral and all Collections and
other
amounts received by any Loan Party (including payments made by the Account
Debtors directly to any Loan Party) into a Cash Management Account or the
Concentration Account, subject to one or more Control Agreements.
(b) On
the
Effective Date, the Loan Parties shall, with respect to each Cash Management
Account, deliver to Collateral Agent a Control Agreement with respect to such
Cash Management Account. Each
such
Control Agreement shall provide, among other things, that (i) upon the
occurrence and during the continuance of an Event of Default, the Cash
Management Bank will comply with any instructions originated by the Collateral
Agent directing the disposition of the funds in such Cash Management Account
without further consent by the Borrower or its Subsidiaries, as applicable,
(ii)
the Cash Management Bank has no rights of setoff or recoupment or any other
claim against the applicable Cash Management Account, other than for payment
of
its service fees and other charges directly related to the administration of
such Cash Management Account and for returned
checks
or other items of payment, and (iii) upon the occurrence and during the
continuance of an Event of Default, upon the instruction of the Collateral
Agent, the Cash Management Bank will forward, by daily sweep, all amounts in
the
applicable Cash Management Account to the Administrative Agent's
Account.
-86-
(c) Upon
the
terms and subject to the conditions set forth in the Concentration Account
Agreement with respect to the Concentration Account, all amounts received in
the
Concentration Account shall be wired each Business Day into the Administrative
Agent's Account,
except
that, so long as no Event of Default has occurred and is continuing, the
Collateral Agent will not direct the Concentration Account Bank to transfer
funds in the Concentration Account to the Administrative
Agent's Account.
(d) So
long
as no Default or Event of Default has occurred and is continuing, the
Borrower
may
amend Schedule 8.01 to add or replace a Cash Management Bank or Cash Management
Account; provided,
however,
that
(i) such prospective Cash Management Bank shall be reasonably satisfactory
to
Collateral Agent and Collateral Agent shall have consented in writing in advance
to the opening of such Cash Management Account with the prospective Cash
Management Bank, and (ii) prior to the time of the opening of such Cash
Management Account, the applicable Loan Party and such prospective Cash
Management Bank shall have executed and delivered to Collateral Agent a Control
Agreement. Each Loan Party shall close any of its Cash Management Accounts
(and
establish replacement cash management accounts in accordance with the foregoing
sentence) promptly and in any event within thirty (30) days of notice from
Collateral Agent that the creditworthiness of the Cash Management Bank, at
which
such Cash Management Accounts are located, is no longer acceptable in Collateral
Agent's reasonable judgment, or as promptly as practicable and in any event
within sixty (60) days of notice from Collateral Agent that the operating
performance, funds transfer, or availability procedures or performance of the
Cash Management Bank with respect to Cash Management Accounts or Collateral
Agent's liability under any Control Agreement with such Cash Management Bank
is
no longer acceptable in Collateral Agent's reasonable judgment.
(e) The
Cash
Management Accounts shall be subject to Control Agreements and shall be cash
collateral accounts, with all cash, checks and similar items of payment in
such
accounts securing payment of the Obligations, and in which the Loan Parties
are
hereby deemed to have granted a Lien to Collateral Agent for the benefit of
the
Secured Parties. All checks, drafts, notes, money orders, acceptances, cash
and
other evidences of Indebtedness received directly by any Loan Party as proceeds
of any Collateral shall be held by such Loan Party in trust for the Agents
and
the Lenders and upon receipt be deposited by such Loan Party in original form
and no later than the next Business Day after receipt thereof into the
Concentration Account; provided,
however,
all Net
Cash Proceeds received directly by such Loan Party pursuant to an event
described in 0,
(v)
or
(vi) shall
be
held by such Loan Party in trust for the Agents and the Lenders and upon the
instruction of Collateral Agent, be deposited by the Loan Party in original
form
and no later than the next Business Day after receipt thereof into the
Administrative
Agent's Account.
A Loan
Party shall not commingle such collections with such Loan Party's own funds
or
the funds of any Subsidiary or Affiliate of such Loan Party or with the proceeds
of any assets not included in the Collateral. No checks, drafts or other
instrument received by the Collateral Agent shall constitute final payment
to
the Collateral Agent unless and until such instruments have actually been
collected.
-87-
(f) After
the
occurrence and during the continuance of an Event of Default, any Agent may
send
a notice of assignment and/or notice of the Lenders' security interest to any
and all Account Debtors or third parties holding or otherwise concerned with
any
of the Collateral, and thereafter the Collateral Agent shall have the sole
right
to collect the Accounts and/or take possession of the Collateral and the books
and records relating thereto. The Loan Parties shall not, without prior written
consent of the Collateral Agent, grant any extension of time of payment of
any
Account, compromise or settle any Account for less than the full amount thereof,
release, in whole or in part, any Person or property liable for the payment
thereof, or allow any credit or discount whatsoever thereon, except, in the
absence of a continuing Event of Default, in the ordinary course of
business.
(g) Each
Loan
Party hereby appoints each Agent or its designee on behalf of such Agent as
the
Loan Parties' attorney-in-fact with power exercisable during the continuance
of
an Event of Default to endorse any Loan Party's name upon any notes,
acceptances, checks, drafts, money orders or other evidences of payment relating
to the Accounts, to sign any Loan Party's name on any invoice or ▇▇▇▇ of lading
relating to any of the Accounts, drafts against Account Debtors with respect
to
Accounts, assignments and verifications of Accounts and notices to Account
Debtors with respect to Accounts, to send verification of Accounts, and to
notify the relevant postal service authorities to change the address for
delivery of mail addressed to any Loan Party to such address as such Agent
may
designate and to do all other acts and things necessary to carry out this
Agreement. All acts of said attorney or designee are hereby ratified and
approved, and said attorney or designee shall not be liable for any acts of
omission or commission (other than acts of omission or commission constituting
gross negligence or willful misconduct as determined by a final judgment of
a
court of competent jurisdiction), or for any error of judgment or mistake of
fact or law; this power being coupled with an interest is irrevocable until
all
of the Loans, Letter of Credit Obligations and other Obligations under the
Loan
Documents are paid in full and all of the Loan Documents are
terminated.
(h) Nothing
herein contained shall be construed to constitute any Agent as agent of any
Loan
Party for any purpose whatsoever, and the Agents shall not be responsible or
liable for any shortage, discrepancy, damage, loss or destruction of any part
of
the Collateral wherever the same may be located and regardless of the cause
thereof (other than from acts of omission or commission constituting gross
negligence or willful misconduct as determined by a final judgment of a court
of
competent jurisdiction). The Agents shall not, under any circumstance or in
any
event whatsoever, have any liability for any error or omission or delay of
any
kind occurring in the settlement, collection or payment of any of the Accounts
or any instrument received in payment thereof or for any damage resulting
therefrom (other than acts of omission or commission constituting gross
negligence or willful misconduct as determined by a final judgment of a court
of
competent jurisdiction). The Agents, by anything herein or in any assignment
or
otherwise, do not assume any of the obligations under any contract or agreement
assigned to any Agent and shall not be responsible in any way for the
performance by any Loan Party of any of the terms and conditions
thereof.
(i) If
any
Account includes a charge for any tax payable to any Governmental Authority,
each Agent is hereby authorized (but in no event obligated) in its discretion
to
pay the amount thereof to the proper taxing authority for the Loan Parties'
account and to charge the Loan Parties therefor. The Loan Parties shall notify
the Agents if any Account includes any taxes due to any such Governmental
Authority and, in the absence of such notice, the Agents shall have the right
to
retain the full proceeds of such Account and shall not be liable for any taxes
that may be due by reason of the sale and delivery creating such
Account.
-88-
(j) Notwithstanding
any other terms set forth in the Loan Documents, the rights and remedies of
the
Agents and the Lenders herein provided, and the obligations of the Loan Parties
set forth herein, are cumulative of, may be exercised singly or concurrently
with, and are not exclusive of, any other rights, remedies or obligations set
forth in any other Loan Document or as provided by law.
Section
8.02 Collateral
Custodian.
Upon
the occurrence and during the continuance of any Default or Event of Default,
the Collateral Agent may at any time and from time to time employ and maintain
on the premises of any Loan Party a custodian selected by the Collateral Agent
who shall have full authority to do all acts necessary to protect the Agents'
and the Lenders' interests. Each Loan Party hereby agrees to, and to cause
its
Subsidiaries to, cooperate with any such custodian and to do whatever the
Collateral Agent may reasonably request to preserve the Collateral. All costs
and expenses incurred by the Collateral Agent by reason of the employment of
the
custodian shall be the responsibility of the Borrower and charged to the Loan
Account.
ARTICLE
IX
EVENTS
OF DEFAULT
Section
9.01 Events
of Default .
If any
of the following Events of Default shall occur and be continuing:
(a) the
Borrower shall fail to pay any principal of or interest on any Loan, any
Collateral Agent Advance, any Reimbursement Obligation or any fee, indemnity
or
other amount payable under this Agreement or any other Loan Document when due
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise);
(b) any
representation or warranty made or deemed made by or on behalf of any Loan
Party
or by any officer of the foregoing under or in connection with any Loan Document
or under or in connection with any report, certificate, or other document
delivered to any Agent, any Lender or the L/C Issuer pursuant to any Loan
Document shall have been incorrect in any material respect when made or deemed
made;
(c) any
Loan
Party shall fail to perform or comply with (i) any covenant or agreement
contained in paragraph (c)(i) of Section 7.01 or paragraph (d) of Section 7.01
(with respect to the Parent and the Borrower), or any covenant or agreement
contained in Section 7.02, Section 7.03 or 0,
or any
Loan Party shall fail to perform or comply with any covenant or agreement
contained in any Security Agreement to which it is a party, any Mortgage to
which it is a party or any Canadian Security Agreement to which it is a party,
(ii) any covenant or agreement contained in paragraph (a) of Section 7.01,
and
such failure, if capable of being remedied, shall remain unremedied for a period
of 7 days, after the earlier of the date a senior officer of any Loan Party
becomes aware of such failure and the date written notice of such default shall
have been given by any Agent to the Borrower, (iii) any covenant or agreement
contained in paragraphs (f), (h), (j)(iii) or (j)(iv) of Section 7.01, and
such
failure, if capable of being remedied, shall remain unremedied for a period
of 5
days after the earlier of the date a senior officer of any Loan Party becomes
aware of such failure and the date written notice of such default shall have
been given by any Agent to the Borrower, (iv) any covenant or agreement
contained in paragraphs (b), (c)(ii), (o) or (q) of Section 7.01, and such
failure, if capable of being remedied, shall remain unremedied for a period
of
10 days after the earlier of the date a senior officer of any Loan Party becomes
aware of such failure and the date written notice of such default shall have
been given by any Agent to the Borrower;
-89-
(d) any
Loan
Party shall fail to perform or comply with any other term, covenant or agreement
contained in any Loan Document to be performed or observed by it and, except
as
set forth in subsections 0,
0
and
0
of this
0,
such
failure, if capable of being remedied, shall remain unremedied for 25 days
after
the earlier of the date a senior officer of any Loan Party becomes aware of
such
failure and the date written notice of such default shall have been given by
any
Agent to such Loan Party;
(e) any
Loan
Party shall fail to pay any principal of any of its Indebtedness (excluding
Indebtedness evidenced by this Agreement), in excess of $2,000,000 when due
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise) and such failure shall continue after the applicable grace period,
if
any, specified in the agreement or instrument relating to such Indebtedness,
or
any other default under any agreement or instrument relating to any such
Indebtedness, or any other event, shall occur and shall continue after the
applicable grace period, if any, specified in such agreement or instrument,
if
the effect of such default or event is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness; or any such Indebtedness
shall be declared to be due and payable, or required to be prepaid (other than
by a regularly scheduled required prepayment), redeemed, purchased or defeased
or an offer to prepay, redeem, purchase or defease such Indebtedness shall
be
required to be made, in each case, prior to the stated maturity
thereof;
(f) any
Loan
Party (i) shall institute any proceeding or voluntary case seeking to adjudicate
it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition
of it
or its debts under any law relating to bankruptcy, insolvency, reorganization
or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official for
any
such Person or for any substantial part of its property, (ii) shall be generally
not paying its debts as such debts become due or shall admit in writing its
inability to pay its debts generally, (iii) shall make a general assignment
for
the benefit of creditors, or (iv) shall take any action to authorize or effect
any of the actions set forth above in this subsection 0;
(g) any
proceeding shall be instituted against any Loan Party seeking to adjudicate
it a
bankrupt or insolvent, or seeking dissolution, liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for any such Person or for any
substantial part of its property, and either such proceeding shall remain
undismissed or unstayed for a period of 45 days or any of the actions sought
in
such proceeding (including, without limitation, the entry of an order for relief
against any such Person or the appointment of a receiver, trustee, custodian
or
other similar official for it or for any substantial part of its property)
shall
occur;
-90-
(h) (x)
any
Loan Document shall at any time for any reason (other than pursuant to the
express terms thereof) cease to be valid and binding on or enforceable against
any Loan Party intended to be a party thereto, or (y) the validity or
enforceability of any material provision of any Loan Document shall be contested
by any Loan Party thereto, or a proceeding shall be commenced by any Loan Party,
seeking to establish the invalidity or unenforceability thereof;
(i) any
Security Agreement, any Mortgage, any Canadian Security Agreement or any other
security document, after delivery thereof pursuant hereto, shall for any reason
fail or cease to create a valid and perfected and, except to the extent
permitted by the terms hereof or thereof, first priority Lien in favor of the
Collateral Agent for the benefit of the Agents, the Lenders and the Bank Product
Providers on any Collateral purported to be covered thereby;
(j) one
or
more judgments, orders or awards (or any settlement of any claim that, if
breached, could result in a judgment, order or award) for the payment of money
exceeding $3,000,000 in the aggregate shall be rendered against any Loan Party
and remain unsatisfied and either (i) enforcement proceedings shall have
been commenced by any creditor upon any such judgment, order, award or
settlement, (ii) there shall be a period of 20 consecutive days after entry
thereof during which a stay of enforcement of any such judgment, order, award
or
settlement, by reason of a pending appeal or otherwise, shall not be in effect,
or (iii) at any time during which a stay of enforcement of any such judgment,
order, award or settlement, by reason of a pending appeal or otherwise, is
in
effect, such judgment, order, award or settlement is not bonded in the full
amount of such judgment, order, award or settlement; provided,
however,
that
any such judgment, order, award or settlement shall not give rise to an Event
of
Default under this subsection 0
if and
for so long as (A) the amount of such judgment, order, award or settlement
is
covered by a valid and binding policy of insurance between the defendant and
the
insurer covering full payment thereof and (B) such insurer has been
notified, and has not disputed the claim made for payment, of the amount of
such
judgment, order, award or settlement;
(k) any
Loan
Party is enjoined, restrained or in any way prevented by the order of any court
or any Governmental Authority from conducting all or any material part of the
Loan Parties' business taken as a whole for more than fifteen (15)
days;
(l) any
cessation of a substantial part of the business of any Loan Party for a period
which materially and adversely affects the ability of the Loan Parties to
continue their business taken as a whole on a profitable basis;
(m) the
loss,
suspension or revocation of, or failure to renew, any license or permit now
held
or hereafter acquired by any Loan Party, if such loss, suspension, revocation
or
failure to renew could reasonably be expected to have a Material Adverse
Effect;
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(n) the
indictment of any Loan Party under any criminal statute, or commencement of
criminal or civil proceedings against any Loan Party, pursuant to which statute
or proceedings the penalties or remedies sought or available include forfeiture
to any Governmental Authority of any material portion of the property of the
Loan Parties taken as a whole;
(o) any
Loan
Party or any of its ERISA Affiliates shall have made a complete or partial
withdrawal from a Multiemployer Plan, and, as a result of such complete or
partial withdrawal, any Loan Party or any of its ERISA Affiliates incurs a
withdrawal liability in an annual amount exceeding $1,000,000; or a
Multiemployer Plan enters reorganization status under Section 4241 of
ERISA, and, as a result thereof any Loan Party's or any of its ERISA Affiliates'
annual contribution requirements with respect to such Multiemployer Plan
increases in an annual amount exceeding $1,000,000;
(p) any
Termination Event with respect to any Employee Plan shall have occurred, and,
30
days after notice thereof shall have been given to any Loan Party by any Agent,
(i) such Termination Event (if correctable) shall not have been corrected,
and
(ii) the then current value of such Employee Plan's vested benefits exceeds
the
then current value of assets allocable to such benefits in such Employee Plan
by
more than $1,000,000 (or, in the case of a Termination Event involving liability
under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204
or
4212 of ERISA or Section 4971 or 4975 of the Internal Revenue Code, the
liability is in excess of such amount); or
(q) a
Change
of Control shall have occurred;
then,
and
in any such event, the Collateral Agent may, and shall at the request of the
Required Lenders, by notice to the Borrower,
(i)
terminate or reduce all Commitments, whereupon all Commitments shall immediately
be so terminated or reduced, (ii) declare all or any portion of the Loans and
Reimbursement Obligations then outstanding to be due and payable, whereupon
all
or such portion of the aggregate principal of all Loans and Reimbursement
Obligations, all accrued and unpaid interest thereon, all fees and all other
amounts payable under this Agreement and the other Loan Documents shall become
due and payable immediately, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by each Loan Party
and (iii) exercise any and all of its other rights and remedies under
applicable law, hereunder and under the other Loan Documents; provided,
however,
that
upon the occurrence of any Event of Default described in subsection 0
or
0
of this
0
with
respect to any Loan Party, without any notice to any Loan Party or any other
Person or any act by any Agent or any Lender, all Commitments shall
automatically terminate and all Loans and Reimbursement Obligations then
outstanding, together with all accrued and unpaid interest thereon, all fees
and
all other amounts due under this Agreement and the other Loan Documents shall
become due and payable automatically and immediately, without presentment,
demand, protest or notice of any kind, all of which are expressly waived by
each
Loan Party. Subject to Section 4.04(b), the Administrative Agent may, after
the
occurrence and during the continuation of any Event of Default, require the
Borrower to deposit with the Administrative Agent with respect to each Letter
of
Credit then outstanding cash in an amount equal to 102.5% of the greatest amount
for which such Letter of Credit may be drawn. Such deposits shall be held by
the
Administrative Agent in the Letter of Credit Collateral Account as security
for,
and to provide for the payment of, the Letter of Credit
Obligations.
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ARTICLE
X
AGENTS
Section
10.01 Appointment .
Each
Lender (and each subsequent maker of any Loan by its making thereof) hereby
irrevocably appoints and authorizes the Administrative Agent and the Collateral
Agent to perform the duties of each such Agent as set forth in this Agreement
including: (i) to receive on behalf of each Lender any payment of principal
of or interest on the Loans outstanding hereunder and all other amounts accrued
hereunder for the account of the Lenders and paid to such Agent, and, subject
to
1)a)ii)
of this
Agreement, to distribute promptly to each Lender its Pro Rata Share of all
payments so received; (ii) to distribute to each Lender copies of all
material notices and agreements received by such Agent and not required to
be
delivered to each Lender pursuant to the terms of this Agreement, provided
that
while Agents shall endeavor to make such deliveries Agents shall not have any
liability to the Lenders for any Agent's failure to distribute any such notices
or agreements to the Lenders; (iii) to maintain, in accordance with its
customary business practices, ledgers and records reflecting the status of
the
Obligations, the Loans, and related matters and to maintain, in accordance
with
its customary business practices, ledgers and records reflecting the status
of
the Collateral and related matters; (iv) to execute or file any and all
financing or similar statements or notices, amendments, renewals, supplements,
documents, instruments, proofs of claim, notices and other written agreements
with respect to this Agreement or any other Loan Document; (v) to make the
Loans and Collateral Agent Advances, for such Agent or on behalf of the
applicable Lenders as provided in this Agreement or any other Loan Document;
(vi) to perform, exercise, and enforce any and all other rights and
remedies of the Lenders with respect to the Loan Parties, the Obligations,
or
otherwise related to any of same to the extent reasonably incidental to the
exercise by such Agent of the rights and remedies specifically authorized to
be
exercised by such Agent by the terms of this Agreement or any other Loan
Document; (vii) to incur and pay such fees necessary or appropriate for
the performance and fulfillment of its functions and powers pursuant to this
Agreement or any other Loan Document;
and
(viii) subject to 0 of
this
Agreement, to take such action as such Agent deems appropriate on its behalf
to
administer the Loans and the Loan Documents and to exercise such other powers
delegated to such Agent by the terms hereof or the other Loan Documents
(including, without limitation, the power to give or to refuse to give notices,
waivers, consents, approvals and instructions and the power to make or to refuse
to make determinations and calculations) together with such powers as are
reasonably incidental thereto to carry out the purposes hereof and thereof.
As
to any matters not expressly provided for by this Agreement and the other Loan
Documents (including, without limitation, enforcement or collection of the
Loans), the Agents shall not be required to exercise any discretion or take
any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions
of
the Required Lenders, and such instructions of the Required Lenders shall be
binding upon all Lenders and all makers of Loans; provided,
however,
that
the L/C Issuer shall not be required to refuse to honor a drawing under any
Letter of Credit and the Agents shall not be required to take any action which,
in the reasonable opinion of any Agent, exposes such Agent to liability or
which
is contrary to this Agreement or any other Loan Document or applicable
law.
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Section
10.02 Nature
of Duties .
The
Agents shall have no duties or responsibilities except those expressly set
forth
in this Agreement or in the other Loan Documents. The duties of the Agents
shall
be mechanical and administrative in nature. The Agents shall not have by reason
of this Agreement or any other Loan Document a fiduciary relationship in respect
of any Lender. Nothing in this Agreement or any other Loan Document, express
or
implied, is intended to or shall be construed to impose upon the Agents any
obligations in respect of this Agreement or any other Loan Document except
as
expressly set forth herein or therein. Each Lender shall make its own
independent investigation of the financial condition and affairs of the Loan
Parties in connection with the making and the continuance of the Loans hereunder
and shall make its own appraisal of the creditworthiness of the Loan Parties
and
the value of the Collateral, and the Agents shall have no duty or
responsibility, either initially or on a continuing basis, to provide any Lender
with any credit or other information with respect thereto, whether coming into
their possession before the initial Loan hereunder or at any time or times
thereafter, provided that, upon the reasonable request of a Lender, each Agent
shall provide to such Lender any documents or reports delivered to such Agent
by
the Loan Parties pursuant to the terms of this Agreement or any other Loan
Document. If any Agent seeks the consent or approval of the Required Lenders
to
the taking or refraining from taking any action hereunder, such Agent shall
send
notice thereof to each Lender. Each Agent shall promptly notify each Lender
any
time that the Required Lenders have instructed such Agent to act or refrain
from
acting pursuant hereto.
Section
10.03 Rights,
Exculpation, Etc.
The
Agents and their directors, officers, agents or employees shall not be liable
for any action taken or omitted to be taken by them under or in connection
with
this Agreement or the other Loan Documents, except for their own gross
negligence or willful misconduct as determined by a final judgment of a court
of
competent jurisdiction. Without limiting the generality of the foregoing, the
Agents (i) may treat the payee of any Loan as the owner thereof until the
Administrative Agent (or the Collateral Agent, as applicable) receives written
notice of the assignment or transfer thereof, pursuant to 0
hereof,
signed by such payee and in form satisfactory to the Administrative Agent (or
the Collateral Agent, as applicable); (ii) may consult with legal counsel
(including, without limitation, counsel to any Agent or counsel to the Loan
Parties), independent public accountants, and other experts selected by any
of
them and shall not be liable for any action taken or omitted to be taken in
good
faith by any of them in accordance with the advice of such counsel or experts;
(iii) make no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, certificates, warranties or
representations made in or in connection with this Agreement or the other Loan
Documents; (iv) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions
of
this Agreement or the other Loan Documents on the part of any Person, the
existence or possible existence of any Default or Event of Default, or to
inspect the Collateral or other property (including, without limitation, the
books and records) of any Person; (v) shall not be responsible to any
Lender for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto; and (vi) shall
not
be deemed to have made any representation or warranty regarding the existence,
value or collectibility of the Collateral, the existence, priority or perfection
of the Collateral Agent's Lien thereon, or any certificate prepared by any
Loan
Party in connection therewith, nor shall the Agents be responsible or liable
to
the Lenders for any failure to monitor or maintain any portion of the
Collateral. The Agents shall not be liable for any apportionment or distribution
of payments made in good faith pursuant to 0,
and if
any such apportionment or distribution is subsequently determined to have been
made in error the sole recourse of any Lender to whom payment was due but not
made, shall be to recover from other Lenders any payment in excess of the amount
which they are determined to be entitled. The Agents may at any time request
instructions from the Lenders with respect to any actions or approvals which
by
the terms of this Agreement or of any of the other Loan Documents the Agents
are
permitted or required to take or to grant, and if such instructions are promptly
requested, the Agents shall be absolutely entitled to refrain from taking any
action or to withhold any approval under any of the Loan Documents until they
shall have received such instructions from the Required Lenders. Without
limiting the foregoing, no Lender shall have any right of action whatsoever
against any Agent as a result of such Agent acting or refraining from acting
under this Agreement or any of the other Loan Documents in accordance with
the
instructions of the Required Lenders.
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Section
10.04 Reliance .
Each
Agent shall be entitled to rely upon any written notices, statements,
certificates, orders or other documents or any telephone message believed by
it
in good faith to be genuine and correct and to have been signed, sent or made
by
the proper Person, and with respect to all matters pertaining to this Agreement
or any of the other Loan Documents and its duties hereunder or thereunder,
upon
advice of counsel selected by it.
Section
10.05 Indemnification .
To the
extent that any Agent or the L/C Issuer is not reimbursed and indemnified by
any
Loan Party, the Lenders will reimburse and indemnify such Agent and the
L/C Issuer from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, advances or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against such Agent or the L/C Issuer in any way relating to
or arising out of this Agreement or any of the other Loan Documents or any
action taken or omitted by such Agent or the L/C Issuer under this
Agreement or any of the other Loan Documents, in proportion to each Lender's
Pro
Rata Share, including, without limitation, advances and disbursements made
pursuant to 0;
provided,
however,
that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, advances or
disbursements for which there has been a final judicial determination that
such
liability resulted from such Agent's or the L/C Issuer's gross negligence
or willful misconduct. The obligations of the Lenders under this 0
shall
survive the payment in full of the Loans and the termination of this
Agreement.
Section
10.06 Agents
Individually .
With
respect to its Pro Rata Share of the Total Commitment hereunder and the Loans
made by it, each Agent shall have and may exercise the same rights and powers
hereunder and is subject to the same obligations and liabilities as and to
the
extent set forth herein for any other Lender or maker of a Loan. The terms
"Lenders" or "Required Lenders" or any similar terms shall, unless the context
clearly otherwise indicates, include each Agent in its individual capacity
as a
Lender or one of the Required Lenders. Each Agent and its Affiliates may accept
deposits from, lend money to, and generally engage in any kind of banking,
trust
or other business with the Borrower as if it were not acting as an Agent
pursuant hereto without any duty to account to the other Lenders.
Section
10.07 Successor
Agent .
xiii) Each
Agent may resign from the performance of all its functions and duties hereunder
and under the other Loan Documents at any time by giving at least thirty (30)
Business Days' prior written notice to the Borrower and each Lender. Such
resignation shall take effect upon the acceptance by a successor Agent of
appointment pursuant to clauses (b) and (c) below or as otherwise provided
below.
-95-
(b) Upon
any
such notice of resignation, the Required Lenders shall appoint a successor
Agent, which successor Agent shall, so long as no Default or Event of Default
under Section 9.01(a), (c), (f) or (g) shall have occurred and be continuing,
be
acceptable to the Borrower (such acceptance not to be unreasonably withheld
or
delayed). Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
under
this Agreement and the other Loan Documents. After any Agent's resignation
hereunder as an Agent, the provisions of this 0
shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was an Agent under this Agreement and the other Loan Documents.
(c) If
a
successor Agent shall not have been so appointed within said thirty (30)
Business Day period, the retiring Agent, with the consent of the other Agent
shall then appoint a successor Agent who shall serve as an Agent until such
time, if any, as the Required Lenders, with the consent of the other Agent,
appoint a successor Agent as provided above; provided
that if
all of the Revolving Obligations are paid in full, the Administrative Agent's
resignation shall be effective at the end of such thirty (30) Business Day
period regardless of whether a successor Agent has been appointed.
Section
10.08 Collateral
Matters .
(a) The
Collateral Agent may, after the occurrence and during the continuation of a
Default or an Event of Default, from time to time make such disbursements and
advances ("Collateral
Agent Advances")
which
the Collateral Agent, in its reasonable discretion, deems necessary or desirable
to preserve, protect, prepare for sale or lease or dispose of the Collateral
or
any portion thereof, to enhance the likelihood or maximize the amount of
repayment by the Borrower of the Loans, Reimbursement Obligations, Letter of
Credit Obligations and other Obligations or to pay any other amount chargeable
to the Borrower pursuant to the terms of this Agreement, including, without
limitation, costs, fees and expenses as described in 0,
provided
that the
aggregate amount of outstanding Collateral Agent Advances at no time shall
exceed $5,500,000. The Collateral Agent Advances shall be repayable on demand
and be secured by the Collateral. The Collateral Agent Advances shall constitute
Obligations hereunder which may be charged to the Loan Account in accordance
with 1)a)x).
The
Collateral Agent shall notify each Lender and the Borrower in writing of each
such Collateral Agent Advance, which notice shall include a description of
the
purpose of such Collateral Agent Advance. Without limitation to its obligations
pursuant to 0,
each
Lender agrees that it shall make available to the Collateral Agent, upon the
Collateral Agent's demand, in Dollars in immediately available funds, the amount
equal to such Lender's Pro Rata Share (determined under clause (d) of the
definition of Pro Rata Share) of each such Collateral Agent Advance. If such
funds are not made available to the Collateral Agent by such Lender, the
Collateral Agent shall be entitled to recover such funds on demand from such
Lender, together with interest thereon for each day from the date such payment
was due until the date such amount is paid to the Collateral Agent, at the
Federal Funds Rate for three Business Days and thereafter at the Reference
Rate.
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(b) The
Lenders hereby irrevocably authorize the Collateral Agent, at its option and
in
its discretion, to release any Lien granted to or held by the Collateral Agent
upon any Collateral upon termination of the Total Commitment and payment and
satisfaction of all Loans, Reimbursement Obligations, Letter of Credit
Obligations, and all other Obligations in accordance with the terms hereof;
or
constituting property being sold or disposed of in compliance with the terms
of
this Agreement and the other Loan Documents; or constituting property in which
the Loan Parties owned no interest at the time the Lien was granted or at any
time thereafter; or if approved, authorized or ratified in writing by the
Lenders. Upon request by the Collateral Agent at any time, the Lenders will
confirm in writing the Collateral Agent's authority to release particular types
or items of Collateral pursuant to this 0.
(c) Without
in any manner limiting the Collateral Agent's authority to act without any
specific or further authorization or consent by the Lenders (as set forth in
0),
each
Lender agrees to confirm in writing, upon request by the Collateral Agent,
the
authority to release Collateral conferred upon the Collateral Agent under
0.
Upon
receipt by the Collateral Agent of confirmation from the Lenders of its
authority to release any particular item or types of Collateral, and upon prior
written request by any Loan Party, the Collateral Agent shall (and is hereby
irrevocably authorized by the Lenders to) execute such documents as may be
necessary to evidence the release of the Liens granted to the Collateral Agent
for the benefit of the Agents, the Lenders and the Bank Product Providers upon
such Collateral; provided,
however,
that
(i) the Collateral Agent shall not be required to execute any such document
on
terms which, in the Collateral Agent's opinion, would expose the Collateral
Agent to liability or create any obligations or entail any consequence other
than the release of such Liens without recourse or warranty, and (ii) such
release shall not in any manner discharge, affect or impair the Obligations
or
any Lien upon (or obligations of any Loan Party in respect of) all interests
in
the Collateral retained by any Loan Party.
(d) Neither
Agent shall have any obligation whatsoever to any Lender to assure that the
Collateral exists or is owned by the Loan Parties or is cared for, protected
or
insured or has been encumbered or that the Lien granted to the Collateral Agent
pursuant to this Agreement or any other Loan Document has been properly or
sufficiently or lawfully created, perfected, protected or enforced or is
entitled to any particular priority, or to exercise at all or in any particular
manner or under any duty of care, disclosure or fidelity, or to continue
exercising, any of the rights, authorities and powers granted or available
to
any Agent in this 0
or in
any other Loan Document, it being understood and agreed that in respect of
the
Collateral, or any act, omission or event related thereto, any Agent may act
in
any manner it may deem appropriate, in its sole discretion, given such Agent's
own interest in the Collateral as one of the Lenders and that neither Agent
shall have any duty or liability whatsoever to any other Lender, except as
otherwise provided herein.
Section
10.09 Agency
for Perfection .
Each
Agent and each Lender hereby appoints each other Agent and each other Lender
as
agent and bailee for the purpose of perfecting the security interests in and
liens upon the Collateral in assets which, in accordance with Article 9 of
the
Uniform Commercial Code or the PPSA, as applicable, can be perfected only by
possession or control (or where the security interest of a secured party with
possession or control has priority over the security interest of another secured
party) and each Agent and each Lender hereby acknowledges that it holds
possession of or otherwise controls any such Collateral for the benefit of
the
Agents, the Lenders and the Bank Product Providers as secured party. Should
the
Administrative Agent or any Lender obtain possession or control of any such
Collateral, the Administrative Agent or such Lender shall notify the Collateral
Agent thereof, and, promptly upon the Collateral Agent's request therefor shall
deliver such Collateral to the Collateral Agent or in accordance with the
Collateral Agent's instructions. In addition, the Collateral Agent shall also
have the power and authority hereunder to appoint such other sub-agents as
may
be necessary or required under applicable state or provincial law or otherwise
to perform its duties and enforce its rights with respect to the Collateral
and
under the Loan Documents. Each
Loan
Party by its execution and delivery of this Agreement hereby consents to the
foregoing.
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ARTICLE
XI
GUARANTY
Section
11.01 Guaranty .
(a)
Each Guarantor hereby jointly and severally and unconditionally and irrevocably
guarantees the punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all Obligations of the Borrower, now or hereafter
existing under any Loan Document, whether for principal, interest (including,
without limitation, all interest that accrues after the commencement of any
Insolvency Proceeding of the Borrower, whether or not a claim for post-filing
interest is allowed in such Insolvency Proceeding), Letter of Credit
Obligations, fees, commissions, expense reimbursements, indemnifications or
otherwise (such obligations, to the extent not paid by the Borrower, being
the "Guaranteed
Obligations"),
and
agrees to pay any and all expenses (including reasonable counsel fees and
expenses) incurred by the Agents, the Lenders and the L/C Issuer in
enforcing any rights under the guaranty set forth in this 0.
Without
limiting the generality of the foregoing, each Guarantor's liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and
would be owed by the Borrower to the Agents, the Lenders and the L/C Issuer
under any Loan Document but for the fact that they are unenforceable or not
allowable due to the existence of an Insolvency Proceeding involving
the
Borrower.
(b) In
addition to the guaranty specified in Section 11.01(a) above, each Guarantor
agrees to indemnify and save the Agents, the Lenders and the L/C Issuer harmless
from and against all costs, losses, expenses and damages it may suffer as a
result or consequence of, the Borrower's default in the performance of any
of
the Guaranteed Obligations, or any ability by the Agents, the Lenders or the
L/C
Issuer to recover the ultimate balance due or remaining unpaid to such party
in
respect of the Guaranteed Obligations, including, without limitation, legal
fees
incurred by or on behalf of the Agents, the Lenders or the L/C Issuer resulting
from any action instituted on the basis of this 0.
Section
11.02 Guaranty
Absolute .
Each
Guarantor jointly and severally guarantees that the Guaranteed Obligations
will
be paid strictly in accordance with the terms of the Loan Documents, regardless
of any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Agents, the Lenders or the
L/C Issuer with respect thereto. Each Guarantor agrees that this
0
constitutes a guaranty of payment when due and not of collection and waives
any
right to require that any resort be made by any Agent or any Lender to any
Collateral. The obligations of each Guarantor under this 0
are
independent of the Guaranteed Obligations and a separate action or actions
may
be brought and prosecuted against each Guarantor to enforce such obligations,
irrespective of whether any action is brought against any Loan Party or whether
any Loan Party is joined in any such action or actions. The liability of each
Guarantor under this 0
shall be
irrevocable, absolute and unconditional irrespective of, and each Guarantor
hereby irrevocably waives any defenses it may now or hereafter have in any
way
relating to, any or all of the following:
-98-
(a) any
lack
of validity or enforceability of any Loan Document or any agreement or
instrument relating thereto;
(b) any
change in the time, manner or place of payment of, or in any other term of,
all
or any of the Guaranteed Obligations, or any other amendment or waiver of or
any
consent to departure from any Loan Document, including, without limitation,
any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to any Loan Party or otherwise;
(c) any
taking, exchange, release or non-perfection of any Collateral, or any taking,
release or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the Guaranteed Obligations;
(d) the
existence of any claim, set-off, defense or other right that any Guarantor
may
have at any time against any Person, including, without limitation, any Agent,
any Lender or the L/C Issuer;
(e) any
change, restructuring or termination of the corporate, limited liability company
or partnership structure or existence of any Loan Party; or
(f) any
other
circumstance (including, without limitation, any statute of limitations) or
any
existence of or reliance on any representation by the Agents, the Lenders or
the
L/C Issuer that might otherwise constitute a defense available to, or a
discharge of, any Loan Party or any other guarantor or surety.
This
0
shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise
be returned by the Agents, the Lenders, the L/C Issuer or any other Person
upon
the insolvency, bankruptcy or reorganization of the Borrower or otherwise,
all
as though such payment had not been made.
Section
11.03 Waiver .
Each
Guarantor hereby waives (i) promptness and diligence, (ii) notice of
acceptance and any other notice with respect to any of the Guaranteed
Obligations and this 0
and any
requirement that the Agents, the Lenders or the L/C Issuer exhaust any
right or take any action against any Loan Party or any other Person or any
Collateral, (iii) any right to compel or direct any Agent, any Lender or
the L/C Issuer to seek payment or recovery of any amounts owed under this
0
from any
one particular fund or source or to exhaust any right or take any action against
any other Loan Party, any other Person or any Collateral, (iv) any requirement
that any Agent, any Lender or the L/C Issuer protect, secure, perfect or insure
any security interest or Lien on any property subject thereto or exhaust any
right to take any action against any Loan Party, any other Person or any
Collateral, and (v) any other defense available to any Guarantor. Each Guarantor
agrees that the Agents, the Lenders and the L/C Issuer shall have no obligation
to marshal any assets in favor of any Guarantor or against, or in payment of,
any or all of the Obligations. Each Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated herein
and that the waiver set forth in this 0
is
knowingly made in contemplation of such benefits. Each Guarantor hereby waives
any right to revoke this 0,
and
acknowledges that this 0
is
continuing in nature and applies to all Guaranteed Obligations, whether existing
now or in the future.
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Section
11.04 Continuing
Guaranty; Assignments .
This
0
is a
continuing guaranty and shall (a) remain in full force and effect until the
later of the cash payment in full of the Guaranteed Obligations (other than
indemnification obligations as to which no claim has been made) and all other
amounts payable under this 0
and the
Final Maturity Date, (b) be binding upon each Guarantor, its successors and
assigns and (c) inure to the benefit of and be enforceable by the Agents, the
Lenders and the L/C Issuer and their successors, pledgees, transferees and
assigns. Without limiting the generality of the foregoing clause (c), any
Lender may pledge, assign or otherwise transfer all or any portion of its rights
and obligations under this Agreement (including, without limitation, all or
any
portion of its Commitments, its Loans,
the
Reimbursement Obligations and the Letter of Credit Obligations owing to
it)
to any
other Person, and such other Person shall thereupon become vested with all
the
benefits in respect thereof granted such Lender herein or otherwise, in each
case as provided in 0.
Section
11.05 Subrogation .
No
Guarantor will exercise any rights that it may now or hereafter acquire against
any Loan Party or any other guarantor that arise from the existence, payment,
performance or enforcement of such Guarantor's obligations under this
0,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in
any
claim or remedy of the Agents, the Lenders and the L/C Issuer against any Loan
Party or any other guarantor or any Collateral, whether or not such claim,
remedy or right arises in equity or under contract, statute or common law,
including, without limitation, the right to take or receive from any Loan Party
or any other guarantor, directly or indirectly, in cash or other property or
by
set-off or in any other manner, payment or security solely on account of such
claim, remedy or right, unless and until all of the Guaranteed Obligations,
and
all other amounts payable under this 0
shall
have been paid in full in cash and the Final Maturity Date shall have occurred.
If any amount shall be paid to any Guarantor in violation of the immediately
preceding sentence at any time prior to the later of the payment in full in
cash
of the Guaranteed Obligations, and all other amounts payable under this
0
and the
Final Maturity Date, such amount shall be held in trust for the benefit of
the
Agents, the Lenders and the L/C Issuer and shall forthwith be paid to the
Agents, the Lenders and the L/C Issuer to be credited and applied to the
Guaranteed Obligations, and all other amounts payable under this 0,
whether
matured or unmatured, in accordance with the terms of this Agreement, or to
be
held as Collateral for any Guaranteed Obligations, or other amounts payable
under this 0
thereafter arising. If (i) any Guarantor shall make payment to the Agents,
the Lenders and the L/C Issuer of all or any part of the Guaranteed Obligations,
(ii) all of the Guaranteed Obligations, and all other amounts payable under
this 0
shall be
paid in full in cash and (iii) the Final Maturity Date shall have occurred,
the Agents, the Lenders and the L/C Issuer will, at such Guarantor's request
and
expense, execute and deliver to such Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to such Guarantor of an interest in the Guaranteed
Obligations, resulting from such payment by such Guarantor.
Subject
to the provisions contained in this Section 11.05, each Guarantor hereby agrees
that to the extent that a Guarantor shall have paid more than its proportionate
share of payment made under this 0,
the
provisions of the Contribution Agreement shall apply.
-100-
Section
11.06 Maximum
Liability .
The
provisions of under this ARTICLE XI are severable, and in any action or
proceeding involving any state or provincial corporate law, or any state,
federal or foreign bankruptcy, insolvency, reorganization or other law affecting
the rights of creditors generally, if the obligations of any Guarantor under
this ARTICLE XI would otherwise be held or determined to be avoidable, invalid
or unenforceable on account of the amount of such Guarantor's liability under
this ARTICLE XI, then, notwithstanding any other provision of this ARTICLE
XI to
the contrary, the amount of such liability shall, without any further action
by
the Guarantors or the Lenders, be automatically limited and reduced to the
highest amount that is valid and enforceable as determined in such action or
proceeding (such highest amount determined hereunder being the relevant
Guarantor's "Maximum
Liability").
This
Section 11.06 with respect to the Maximum Liability of each Guarantor is
intended solely to preserve the rights of the Lenders to the maximum extent
not
subject to avoidance under applicable law, and no Guarantor nor any other person
or entity shall have any right or claim under this Section with respect to
such
Maximum Liability, except to the extent necessary so that the obligations of
any
Guarantor hereunder shall not be rendered voidable under applicable law. Each
Guarantor agrees that the Guaranteed Obligations may at any time and from time
to time exceed the Maximum Liability of each Guarantor without impairing this
ARTICLE XI or affecting the rights and remedies of the Lenders hereunder,
provided that, nothing in this sentence shall be construed to increase any
Guarantor's obligations hereunder beyond its Maximum Liability.
ARTICLE
XII
MISCELLANEOUS
Section
12.01 Notices,
Etc.
All
notices and other communications provided for hereunder shall be in writing
and
shall be mailed, telecopied or delivered, if to any Loan Party, at the following
address:
c/o
MDC
Partners Inc.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Chief Financial Officer
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇, Esq.
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇
-101-
if
to the
Administrative Agent,
to
it at the following address:
▇▇▇▇▇
Fargo Foothill, Inc.
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Business Finance Manager
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to:
Goldberg,
Kohn, Bell, Black, ▇▇▇▇▇▇▇▇▇▇ & Moritz, Ltd.
▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇
if
to the
Collateral Agent, to it at the following address:
Fortress
Credit Corp.
1345
Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
Telephone:
(▇▇▇)
▇▇▇-▇▇▇▇
Telecopier:
(▇▇▇)
▇▇▇-▇▇▇▇
in
each
case, with a copy to:
▇▇▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇
▇.
▇▇▇▇▇▇, Esq.
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
Telecopier:
▇▇▇-▇▇▇-▇▇▇▇
or,
as to
each party, at such other address as shall be designated by such party in a
written notice to the other parties complying as to delivery with the terms
of
this 0.
All
such notices and other communications shall be effective, (i) if mailed, when
received or three days after deposited in the mails, whichever occurs first,
(ii) if telecopied, when transmitted and confirmation received, or (iii) if
delivered, upon delivery, except that notices to any Agent or the
L/C Issuer pursuant to 0
and
0
shall
not be effective until received by such Agent or the L/C Issuer, as the
case may be.
-102-
Section
12.02 Amendments,
Etc.
(a) No
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by any Loan Party therefrom, shall
in
any event be effective unless the same shall be in writing and signed by the
Required Lenders or by the Collateral Agent with the consent of the Required
Lenders, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given, provided,
however,
that no
amendment, waiver or consent shall (i) increase the Commitment of any
Lender, reduce the principal of, or interest on, the Loans or the Reimbursement
Obligations payable to any Lender, reduce the amount of any fee payable for
the
account of any Lender, or postpone or extend the Final Maturity Date or any
date
fixed for any payment of principal of, or interest or fees on, the Loans or
Letter of Credit Obligations payable to any Lender, in each case without the
written consent of any Lender affected thereby, (ii) increase the Total
Commitment without the written consent of each Lender, (iii) change the
percentage of the Commitments or of the aggregate unpaid principal amount of
the
Loans that is required for the Lenders or any of them to take any action
hereunder without the written consent of each Lender, (iv) amend the definition
of "Required Lenders," or "Pro Rata Share" without the written consent of each
Lender, (v) release all or a substantial portion of the Collateral (except
as otherwise provided in this Agreement and the other Loan Documents),
subordinate any Lien granted in favor of the Collateral Agent for the benefit
of
the Agents, the Lenders and the Bank Product Providers, or release the Borrower
or any Guarantor, in each case, without the written consent of each Lender,
or
(vi) amend, modify or waive Section 2.05(b)(i), Section 2.05(d),
0
or this
0
of this
Agreement, in each case, without the written consent of each Lender.
Notwithstanding the foregoing, no amendment, waiver or consent shall, unless
in
writing and signed by an Agent, affect the rights or duties of such Agent (but
not in its capacity as a Lender) under this Agreement or the other Loan
Documents.
(b) If,
in
connection with any proposed amendment, waiver, discharge, termination or
consent, the consent of Fortress and its Related Funds is obtained, but the
consent of other necessary Lenders is not obtained (any such Lender whose
consent is necessary but not obtained being referred to herein as a
“Non-Consenting
Lender”),
then
the Borrower may elect to replace a Non-Consenting Lender as a Lender party
to
this Agreement, provided that,
concurrently with such replacement, (i) another bank or other entity which
is
reasonably satisfactory to the Borrower and the Collateral Agent shall agree,
as
of such date, to purchase for cash the Loans and other Obligations due to the
Non-Consenting Lender pursuant to an Assignment and Assumption and to become
a
Lender for all purposes under this Agreement and to assume all obligations
of
the Non-Consenting Lender to be terminated as of such date and to comply with
the requirements of Section 12.07(b), and (ii) the Borrower shall pay to such
Non-Consenting Lender in same day funds on the day of such replacement (1)
all
interest, fees and other amounts then accrued but unpaid to such Non-Consenting
Lender by the Borrower hereunder to and including the date of termination,
and
(2) an amount, if any, equal to the payment which would have been due to
such Lender on the day of such replacement under Section 2.10 had the Loans
of
such Non-Consenting Lender been prepaid on such date rather than sold to the
replacement Lender plus the Applicable Prepayment Premium (if any).
Section
12.03 No
Waiver; Remedies, Etc.
No
failure on the part of any Agent or any Lender to exercise, and no delay in
exercising, any right hereunder or under any other Loan Document shall operate
as a waiver thereof; nor shall any single or partial exercise of any right
under
any Loan Document preclude any other or further exercise thereof or the exercise
of any other right. The rights and remedies of the Agents and the Lenders
provided herein and in the other Loan Documents are cumulative and are in
addition to, and not exclusive of, any rights or remedies provided by law.
The
rights of the Agents and the Lenders under any Loan Document against any party
thereto are not conditional or contingent on any attempt by the Agents and
the
Lenders to exercise any of their rights under any other Loan Document against
such party or against any other Person.
-103-
Section
12.04 Expenses;
Taxes; Attorneys' Fees .
The
Borrower will pay on demand, all reasonable costs and expenses incurred by
or on
behalf of each Agent (and, in the case of clauses (b) through (m) below, each
Lender), regardless of whether the transactions contemplated hereby are
consummated, including, without limitation, reasonable fees, costs, client
charges and expenses of counsel for each Agent (and, in the case of clauses
(b)
through (m) below, each Lender), accounting, due diligence, periodic field
audits, physical counts, valuations, investigations, searches and filings,
monitoring of assets, appraisals of Collateral, title searches and reviewing
environmental assessments, miscellaneous disbursements, examination, travel,
lodging and meals, arising from or relating to: (a) the negotiation,
preparation, execution, delivery, performance and administration of this
Agreement and the other Loan Documents (including, without limitation, the
preparation of any additional Loan Documents pursuant to 0
or the
review of any of the agreements, instruments and documents referred to in
0),
(b) any requested amendments, waivers or consents to this Agreement or the
other Loan Documents whether or not such documents become effective or are
given, (c) the preservation and protection of any of the Lenders' rights
under this Agreement or the other Loan Documents, (d) the defense of any claim
or action asserted or brought against any Agent or any Lender by any Person
that
arises from or relates to this Agreement, any other Loan Document, the Agents'
or the Lenders' claims against any Loan Party, or any and all matters in
connection therewith, (e) the commencement or defense of, or intervention in,
any court proceeding arising from or related to this Agreement or any other
Loan
Document, (f) the filing of any petition, complaint, answer, motion or
other pleading by any Agent or any Lender, or the taking of any action in
respect of the Collateral or other security, in connection with this Agreement
or any other Loan Document, (g) the protection, collection, lease, sale, taking
possession of or liquidation of, any Collateral or other security in connection
with this Agreement or any other Loan Document, (h) any attempt to enforce
any
Lien or security interest in any Collateral or other security in connection
with
this Agreement or any other Loan Document, (i) any attempt to collect from
any
Loan Party, (j) all liabilities and costs arising from or in connection with
the
past, present or future operations of any Loan Party involving any damage to
real or personal property or natural resources or harm or injury alleged to
have
resulted from any Release of Hazardous Materials on, upon or into such property,
(k) any Environmental Liabilities and Costs incurred in connection with the
investigation, removal, cleanup and/or remediation of any Hazardous Materials
present or arising out of the operations of any facility of any Loan Party,
(l)
any Environmental Liabilities and Costs incurred in connection with any
Environmental Lien, or (m) the receipt by any Agent or any Lender of any advice
from professionals with respect to any of the foregoing. Without limitation
of
the foregoing or any other provision of any Loan Document: (x) the Borrower
agrees to pay all stamp, document, transfer, recording or filing taxes or fees
and similar impositions now or hereafter determined by any Agent or any Lender
to be payable in connection with this Agreement or any other Loan Document,
and
the Borrower agree to save each Agent and each Lender harmless from and against
any and all present or future claims, liabilities or losses with respect to
or
resulting from any omission to pay or delay in paying any such taxes, fees
or
impositions, (y) the Borrower agrees to pay all broker fees for its brokers
that
may become due in connection with the transactions contemplated by this
Agreement and the other Loan Documents, and (z) if the Borrower fails to perform
any covenant or agreement contained herein or in any other Loan Document, any
Agent may itself perform or cause performance of such covenant or agreement,
and
the expenses of such Agent incurred in connection therewith shall be reimbursed
on demand by the Borrower.
-104-
Section
12.05 Right
of Set-off .
Upon
the
occurrence and during the continuance of any Event of Default, any Agent or
any
Lender may, and is hereby authorized to, at any time and from time to time,
without notice to any Loan Party (any such notice being expressly waived by
the
Loan Parties) and to the fullest extent permitted by law, set off and apply
any
and all deposits (general or special, time or demand, provisional or final)
at
any time held and other Indebtedness at any time owing by such Agent or such
Lender to or for the credit or the account of any Loan Party against any and
all
obligations of the Loan Parties either now or hereafter existing under any
Loan
Document, irrespective of whether or not such Agent or such Lender shall have
made any demand hereunder or thereunder and although such obligations may be
contingent or unmatured. Each Agent and each Lender agrees to notify such Loan
Party promptly after any such set-off and application made by such Agent or
such
Lender provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of the Agents and the
Lenders under this 0
are in
addition to the other rights and remedies (including other rights of set-off)
which the Agents and the Lenders may have under this Agreement or any other
Loan
Documents of law or otherwise.
Section
12.06 Severability .
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
hereof or affecting the validity or enforceability of such provision in any
other jurisdiction.
Section
12.07 Assignments
and Participations.
(a) This
Agreement and the other Loan Documents shall be binding upon and inure to the
benefit of each Loan Party and each Agent and each Lender and their respective
successors and assigns; provided,
however,
that
none of the Loan Parties may assign or transfer any of its rights hereunder
or
under the other Loan Documents without the prior written consent of each Lender
and any such assignment without the Lenders' prior written consent shall be
null
and void.
-105-
(b) Each
Lender may (x) with the written consent of the Collateral Agent (which such
consent shall not be unreasonably withheld or delayed), assign to one or more
other lenders or other entities all or a portion of its rights and obligations
under this Agreement with respect to all or a portion of its Term Loan
Commitment and any Term Loan made by it, and (y) with the written consent
of the Administrative Agent (which such consent shall not be unreasonably
withheld or delayed), assign to one or more other lenders or other entities
all
or a portion of its rights and obligations under this Agreement with respect
to
all or a portion of its Revolving Credit Commitment and the Revolving Loans
made
by it; provided,
however,
that
(i) such assignment is in an amount which is at least $5,000,000 or a
multiple of $1,000,000 in excess thereof (or the remainder of such Lender's
Commitment) (except such minimum amount shall not apply to an assignment by
a
Lender to (x) a Lender, an Affiliate of such Lender or a Related Fund of
such Lender or (y) a group of new Lenders, each of whom is an Affiliate or
Related Fund of each other to the extent the aggregate amount to be assigned
to
all such new Lenders is at least $5,000,000 or a multiple of $1,000,000 in
excess thereof), (ii) except as provided in the second to the last sentence
of this 0,
the
parties to each such assignment shall (x) execute and deliver to the Collateral
Agent (and the Administrative Agent, if applicable), for its acceptance, an
Assignment and Acceptance, together with any promissory note subject to such
assignment and such parties shall deliver to the Collateral Agent, for the
benefit of the Collateral Agent (or the Administrative Agent, in the case of
an
assignment of any Revolving Credit Commitment and Revolving Loans), a processing
and recordation fee of $5,000 (except the payment of such fee shall not be
required in connection with an assignment by a Lender to a Lender, an Affiliate
of such Lender or a Related Fund of such Lender) and (y) deliver to the Borrower
an executed copy of such Assignment and Acceptance and (iii) no written
consent of the Collateral Agent or the Administrative Agent and no notice to
the
Borrower shall be required (1) in connection with any assignment by a
Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender
or (2) if such assignment is in connection with any merger, consolidation,
sale, transfer, or other disposition of all or any substantial portion of the
business or loan portfolio of such Lender. Upon such execution, delivery and
acceptance, from and after the effective date specified in each Assignment
and
Acceptance, which effective date shall be at least 3 Business Days after
the delivery thereof to the Administrative Agent or, in the case of an
assignment of any Term Loan Commitment or Term Loan, the Collateral Agent (or
such shorter period as shall be agreed to by the Administrative Agent, or the
Collateral Agent, as applicable, and the parties to such assignment),
(A) the assignee thereunder shall become a "Lender" hereunder and, in
addition to the rights and obligations hereunder held by it immediately prior
to
such effective date, have the rights and obligations hereunder that have been
assigned to it pursuant to such Assignment and Acceptance and (B) the
assigning Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto). Notwithstanding anything to
the
contrary contained in this 0,
a
Lender may assign any or all of its rights under the Loan Documents to an
Affiliate of such Lender or a Related Fund of such Lender without delivering
an
Assignment and Acceptance to the Agents or to any other Person (a "Related
Party Assignment");
provided,
however,
that
(I) the Borrower and the Administrative Agent (and the Collateral Agent, as
applicable) may continue to deal solely and directly with such assigning Lender
until an Assignment and Acceptance has been delivered to the Administrative
Agent (or the Collateral Agent, as applicable) for recordation on the Register,
(II) the Administrative Agent (and the Collateral Agent, as applicable) may
continue to deal solely and directly with such assigning Lender until receipt
by
the Administrative Agent (or the Collateral Agent, as applicable) of a copy
of
the fully executed Assignment and Acceptance pursuant to Section 12.07(e),
(III) the failure of such assigning Lender to deliver an Assignment and
Acceptance to the Agents shall not affect the legality, validity, or binding
effect of such assignment, and (IV) an Assignment and Acceptance between
the assigning Lender and an Affiliate of such Lender or a Related Fund of such
Lender shall be effective as of the date specified in such Assignment and
Acceptance and recorded on the Related Party Register (as defined
below).
Each
Lender, who makes an assignment or sale pursuant to the foregoing sentence
where
the Assignment and Acceptance is not delivered to Administrative Agent (or
the
Collateral Agent, as applicable), shall indemnify and agree to hold Agents,
the
Borrower and the other Lenders harmless from and against any United States
federal withholding tax that would not have been imposed but for (i) the failure
of the Affiliate or the Related Fund that received such assignment to comply
with this Agreement or (ii) the failure of such Lender to withhold such tax
at
the proper rate in the event such Affiliate or Related Fund does not comply
with
this Agreement (or complies with this Agreement but delivers forms indicating
it
is entitled to a reduced rate of such tax).
-106-
(c) By
executing and delivering an Assignment and Acceptance, the assigning Lender
and
the assignee thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such Assignment
and Acceptance, the assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or any other Loan
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other Loan Document furnished
pursuant hereto; (ii) the assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any Loan Party or any of its Subsidiaries or the performance or observance
by
any Loan Party of any of its obligations under this Agreement or any other
Loan
Document furnished pursuant hereto; (iii) such assignee confirms that it
has received a copy of this Agreement and the other Loan Documents, together
with such other documents and information it has deemed appropriate to make
its
own credit analysis and decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon the
assigning Lender, any Agent or any Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own
credit decisions in taking or not taking action under this Agreement and the
other Loan Documents; (v) such assignee appoints and authorizes the Agents
to take such action as agents on its behalf and to exercise such powers under
this Agreement and the other Loan Documents as are delegated to the Agents
by
the terms hereof and thereof, together with such powers as are reasonably
incidental hereto and thereto; and (vi) such assignee agrees that it will
perform in accordance with their terms all of the obligations which by the
terms
of this Agreement and the other Loan Documents are required to be performed
by
it as a Lender.
(d) The
Administrative Agent (and with respect to the Term Loans, the Collateral Agent)
shall, acting solely for this purpose as a non-fiduciary agent of the Borrower,
maintain, or cause to be maintained at the Payment Office, a copy of each
Assignment and Acceptance delivered to and accepted by it and a register (the
"Register")
for
the recordation of the names and addresses of the Lenders and the Commitments
of, and the principal amount of the Loans (and stated interest thereon) (the
"Registered
Loans")
and
Letter of Credit Obligations owing to each Lender from time to time. The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Agents and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection
by
the Borrower and any Lender at any reasonable time and from time to time upon
reasonable prior notice. In the case of an assignment pursuant to the last
sentence of 0
as to
which an Assignment and Acceptance is not delivered to the Administrative Agent
or the Collateral Agent, as applicable, the assigning Lender shall, acting
solely for this purpose as a non-fiduciary agent of the Borrower, maintain
a
register (the "Related
Party Register")
comparable to the Register on behalf of the Borrower.
The
Related Party Register shall be available for inspection by the Borrower and
any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
-107-
(e) Upon
receipt by the Administrative Agent or the Collateral Agent, as applicable,
of a
completed Assignment and Acceptance, and subject to any consent required from
the Administrative Agent or the Collateral Agent pursuant to 0
(which
consent of the Collateral Agent or the Administrative Agent, as applicable,
must
be evidenced by the Collateral Agent's or the Administrative Agent's, as
applicable, execution of an acceptance to such Assignment and Acceptance),
the
Administrative Agent or the Collateral Agent, as applicable, shall accept such
assignment, record the information contained therein in the Register and provide
to the Collateral Agent a copy of the fully executed Assignment and
Acceptance.
(f) A
Registered Loan (and the registered note, if any, evidencing the same) may
be
assigned or sold in whole or in part only by registration of such assignment
or
sale on the Register or the Related Party Register (and each registered note
shall expressly so provide). Any assignment or sale of all or part of such
Registered Loan (and the registered note, if any, evidencing the same) may
be
effected only by registration of such assignment or sale on the Register or
the
Related Party Register, together with the surrender of the registered note,
if
any, evidencing the same duly endorsed by (or accompanied by a written
instrument of assignment or sale duly executed by) the holder of such registered
note, whereupon, at the request of the designated assignee(s) or transferee(s),
one or more new registered notes in the same aggregate principal amount shall
be
issued to the designated assignee(s) or transferee(s). Prior to the registration
of assignment or sale of any Registered Loan (and the registered note, if any,
evidencing the same), the Agents shall treat the Person in whose name such
Registered Loan (and the registered note, if any, evidencing the same) is
registered on the Register as the owner thereof for the purpose of receiving
all
payments thereon, notwithstanding notice to the contrary.
(g) In
the
event that any Lender sells participations in a Registered Loan, such Lender
shall, acting for this purpose as a non-fiduciary agent of the Borrower,
maintain a register on which it enters the name of all participants in the
Registered Loans held by it and the principal amount (and stated interest
thereon) of the portion of the Registered Loan that is the subject of the
participation (the "Participant
Register").
A
Registered Loan (and the registered note, if any, evidencing the same) may
be
participated in whole or in part only by registration of such participation
on
the Participant Register (and each registered note shall expressly so provide).
Any participation of such Registered Loan (and the registered note, if any,
evidencing the same) may be effected only by the registration of such
participation on the Participant Register. The
Participant Register shall be available for inspection by the Borrower and
any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(h) Any
Non-U.S. Lender who purchases or is assigned or participates in any portion
of
such Registered Loan shall comply with 0.
Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement (including under its promissory
notes
related thereto, if any) to secure obligations of such Lender in connection
with
any financing obtained by such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided that no such pledge
or
assignment shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party
hereto.
-108-
(i) Each
Lender may sell participations to one or more banks or other entities in or
to
all or a portion of its rights and obligations under this Agreement and the
other Loan Documents (including, without limitation, all or a portion of its
Commitments, the Loans made by it and its Pro Rata Share of the Letter of Credit
Obligations); provided, that (i) such Lender's obligations under this Agreement
(including without limitation, its Commitments hereunder) and the other Loan
Documents shall remain unchanged; (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
and the Borrower, the Agents and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents; and (iii) a
participant shall not be entitled to require such Lender to take or omit to
take
any action hereunder except (A) action directly effecting an extension of the
maturity dates or decrease in the principal amount of the Loans or Letter of
Credit Obligations, (B) action directly effecting an extension of the due
dates or a decrease in the rate of interest payable on the Loans or the fees
payable under this Agreement, or (C) actions directly effecting a release of
all
or a substantial portion of the Collateral or any Loan Party (except as set
forth in 0
of this
Agreement or any other Loan Document). The Loan Parties agree that each
participant shall be entitled to the benefits of v)
and
1)a)xi)
of this
Agreement with respect to its participation in any portion of the Commitments
and the Loans as if it was a Lender.
Section
12.08 Counterparts .
This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which shall be deemed to be an
original, but all of which taken together shall constitute one and the same
agreement.
Delivery
of an executed counterpart of this Agreement by telecopier shall be equally
as
effective as delivery of an original executed counterpart of this Agreement.
Any
party delivering an executed counterpart of this Agreement by telecopier also
shall deliver an original executed counterpart of this Agreement but the failure
to deliver an original executed counterpart shall not affect the validity,
enforceability, and binding effect of this Agreement. The foregoing shall apply
to each other Loan Document mutatis
mutandis.
Section
12.09 GOVERNING
LAW .
THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE
CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT) SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW
YORK.
Section
12.10 CONSENT
TO JURISDICTION; SERVICE OF PROCESS AND VENUE .
ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ IN THE COUNTY
OF
NEW YORK OR OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW
YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO HEREBY
IRREVOCABLY ACCEPTS IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
THE JURISDICTION OF THE AFORESAID COURTS.
EACH
PARTY HERETO HEREBY IRREVOCABLY APPOINTS THE SECRETARY OF STATE OF THE STATE
OF
NEW YORK AS ITS AGENT FOR SERVICE OF PROCESS IN RESPECT OF ANY SUCH ACTION
OR
PROCEEDING AND FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF
ANY
OF THE AFOREMENTIONED COURTS AND IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT
ITS
ADDRESS FOR NOTICES AS SET FORTH IN SECTION 12.01 AND TO THE SECRETARY OF STATE
OF THE STATE OF NEW YORK, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS AFTER
SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENTS AND THE
LENDERS TO SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY LOAN PARTY IN ANY
OTHER JURISDICTION. EACH PARTY HERETO HEREBY EXPRESSLY AND IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE JURISDICTION OR LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY
PARTY HERETO HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF
ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT
TO
ITSELF OR ITS PROPERTY, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
-109-
Section
12.11 WAIVER
OF JURY TRIAL, ETC.
EACH
PARTY HERETO HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS, OR UNDER ANY AMENDMENT, WAIVER, CONSENT, INSTRUMENT,
DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED
IN
CONNECTION THEREWITH, OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN
CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION, PROCEEDINGS
OR
COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH LOAN
PARTY CERTIFIES THAT NO OFFICER, REPRESENTATIVE, AGENT OR ATTORNEY OF ANY AGENT
OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ANY AGENT OR ANY
LENDER WOULD NOT, IN THE EVENT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM, SEEK
TO ENFORCE THE FOREGOING WAIVERS. EACH LOAN PARTY HEREBY ACKNOWLEDGES THAT
THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS AND THE LENDERS ENTERING
INTO
THIS AGREEMENT.
Section
12.12 Consent
by the Agents and Lenders .
Except
as otherwise expressly set forth herein to the contrary, if the consent,
approval, satisfaction, determination, judgment, acceptance or similar action
(an "Action")
of any
Agent or any Lender shall be permitted or required pursuant to any provision
hereof or any provision of any other agreement to which any Loan Party is a
party and to which any Agent or any Lender has succeeded thereto, such Action
shall be required to be in writing and may be withheld or denied by such Agent
or such Lender, in its sole discretion, with or without any reason, and without
being subject to question or challenge on the grounds that such Action was
not
taken in good faith.
-110-
Section
12.13 No
Party Deemed Drafter .
Each of
the parties hereto agrees that no party hereto shall be deemed to be the drafter
of this Agreement.
Section
12.14 Reinstatement;
Certain Payments .
If any
claim is ever made upon any Agent, any Lender or the L/C Issuer for
repayment or recovery of any amount or amounts received by such Agent, such
Lender or the L/C Issuer in payment or on account of any of the
Obligations, such Agent, such Lender or the L/C Issuer shall give prompt
notice of such claim to each other Agent and Lender and the Borrower, and if
such Agent, such Lender or the L/C Issuer repays all or part of such amount
by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such Agent, such Lender or the
L/C Issuer or any of its property, or (ii) any good faith settlement
or compromise of any such claim effected by such Agent, such Lender or the
L/C Issuer with any such claimant, then and in such event each Loan Party
agrees that (A) any such judgment, decree, order, settlement or compromise
shall
be binding upon it notwithstanding the cancellation of any Indebtedness
hereunder or under the other Loan Documents or the termination of this Agreement
or the other Loan Documents, and (B) it shall be and remain liable to such
Agent, such Lender or the L/C Issuer hereunder for the amount so repaid or
recovered to the same extent as if such amount had never originally been
received by such Agent, such Lender or the L/C Issuer.
Section
12.15 Indemnification .
(a) General
Indemnity.
In
addition to each Loan Party's other Obligations under this Agreement, each
Loan
Party agrees to, jointly and severally, defend, protect, indemnify and hold
harmless each Agent, each Lender and the L/C Issuer and all of their
respective officers, directors, employees, attorneys, consultants and agents
(collectively called the "Indemnitees")
from
and against any and all losses, damages, liabilities, obligations, penalties,
fees, reasonable costs and expenses (including, without limitation, reasonable
attorneys' fees, costs and expenses) incurred by such Indemnitees, whether
prior
to or from and after the Effective Date, whether direct, indirect or
consequential, as a result of or arising from or relating to or in connection
with any of the following: (i) the negotiation, preparation, execution or
performance or enforcement of this Agreement, any other Loan Document or of
any
other document executed in connection with the transactions contemplated by
this
Agreement, (ii) any Agent's or any Lender's furnishing of funds to the
Borrower or the L/C Issuer's issuing of Letters of Credit for the account
of the Borrower under this Agreement or the other Loan Documents, including,
without limitation, the management of any such Loans, the Reimbursement
Obligations or the Letter of Credit Obligations, (iii) any matter relating
to the financing transactions contemplated by this Agreement or the other Loan
Documents or by any document executed in connection with the transactions
contemplated by this Agreement or the other Loan Documents, or (iv) any
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto (collectively,
the "Indemnified
Matters");
provided,
however,
that
the Loan Parties shall not have any obligation to any Indemnitee under this
subsection (a) for any Indemnified Matter caused by the gross negligence or
willful misconduct of such Indemnitee, as determined by a final judgment of
a
court of competent jurisdiction.
-111-
(b) The
indemnification for all of the foregoing losses, damages, fees, costs and
expenses of the Indemnitees are chargeable against the Loan Account. To the
extent that the undertaking to indemnify, pay and hold harmless set forth in
this 0
may be
unenforceable because it is violative of any law or public policy, each Loan
Party shall, jointly and severally, contribute the maximum portion which it
is
permitted to pay and satisfy under applicable law, to the payment and
satisfaction of all Indemnified Matters incurred by the Indemnitees. The
indemnities set forth in this 0
shall
survive the repayment of the Obligations and discharge of any Liens granted
under the Loan Documents.
Section
12.16 Records .
The
unpaid principal of and interest on the Loans, the interest rate or rates
applicable to such unpaid principal and interest, the duration of such
applicability, the Commitments, and the accrued and unpaid fees payable pursuant
to 0
hereof,
including, without limitation, the accrued
and unpaid fees payable pursuant to the
Fee
Letter,
the
Unused Line Fee, the Unused Term Loan B Fee, the Letter of Credit Fee, and
the
Letter of Credit Override Fee shall at all times be ascertained from the records
of the Agents, which shall be conclusive and binding absent manifest
error.
Section
12.17 Binding
Effect .
This
Agreement shall become effective when it shall have been executed by each Loan
Party, each Agent and each Lender and when the conditions precedent set forth
in
0
hereof
have been satisfied or waived in writing by the Agents, and thereafter shall
be
binding upon and inure to the benefit of each Loan Party, each Agent and each
Lender, and their respective successors and assigns, except that the Loan
Parties shall not have the right to assign their rights hereunder or any
interest herein without the prior written consent of each Lender, and any
assignment by any Lender shall be governed by 0
hereof.
Section
12.18 Interest .
It is
the intention of the parties hereto that each Agent and each Lender shall
conform strictly to usury laws applicable to it. Accordingly, if the
transactions contemplated hereby or by any other Loan Document would be usurious
as to any Agent or any Lender under laws applicable to it (including the laws
of
the United States of America and the State of New York or any other jurisdiction
whose laws may be mandatorily applicable to such Agent or such Lender
notwithstanding the other provisions of this Agreement), then, in that event,
notwithstanding anything to the contrary in this Agreement or any other Loan
Document or any agreement entered into in connection with or as security for
the
Obligations, it is agreed as follows: (i) the aggregate of all consideration
which constitutes interest under law applicable to any Agent or any Lender
that
is contracted for, taken, reserved, charged or received by such Agent or such
Lender under this Agreement or any other Loan Document or agreements or
otherwise in connection with the Obligations shall under no circumstances exceed
the maximum amount allowed by such applicable law, any excess shall be canceled
automatically and if theretofore paid shall be credited by such Agent or such
Lender on the principal amount of the Obligations (or, to the extent that the
principal amount of the Obligations shall have been or would thereby be paid
in
full, refunded by such Agent or such Lender, as applicable, to the Borrower);
and (ii) in the event that the maturity of the Obligations is accelerated by
reason of any Event of Default under this Agreement or otherwise, or in the
event of any required or permitted prepayment, then such consideration that
constitutes interest under law applicable to any Agent or any Lender may never
include more than the maximum amount allowed by such applicable law, and excess
interest, if any, provided for in this Agreement or otherwise shall be canceled
automatically by such Agent or such Lender, as applicable, as of the date of
such acceleration or prepayment and, if theretofore paid, shall be credited
by
such Agent or such Lender, as applicable, on the principal amount of the
Obligations (or, to the extent that the principal amount of the Obligations
shall have been or would thereby be paid in full, refunded by such Agent or
such
Lender to the Borrower). All sums paid or agreed to be paid to any Agent or
any
Lender for the use, forbearance or detention of sums due hereunder shall, to
the
extent permitted by law applicable to such Agent or such Lender, be amortized,
prorated, allocated and spread throughout the full term of the Loans until
payment in full so that the rate or amount of interest on account of any Loans
hereunder does not exceed the maximum amount allowed by such applicable law.
If
at any time and from time to time (x) the amount of interest payable to any
Agent or any Lender on any date shall be computed at the Highest Lawful Rate
applicable to such Agent or such Lender pursuant to this 0
and
(y) in respect of any subsequent interest computation period the amount of
interest otherwise payable to such Agent or such Lender would be less than
the
amount of interest payable to such Agent or such Lender computed at the Highest
Lawful Rate applicable to such Agent or such Lender, then the amount of interest
payable to such Agent or such Lender in respect of such subsequent interest
computation period shall continue to be computed at the Highest Lawful Rate
applicable to such Agent or such Lender until the total amount of interest
payable to such Agent or such Lender shall equal the total amount of interest
which would have been payable to such Agent or such Lender if the total amount
of interest had been computed without giving effect to this 0.
-112-
For
purposes of this 0,
the
term "applicable law" shall mean that law in effect from time to time and
applicable to the loan transaction between the Borrower, on the one hand, and
the Agents and the Lenders, on the other, that lawfully permits the charging
and
collection of the highest permissible, lawful non-usurious rate of interest
on
such loan transaction and this Agreement, including laws of the State of New
York and, to the extent controlling, laws of the United States of America.
The
right
to accelerate the maturity of the Obligations does not include the right to
accelerate any interest that has not accrued as of the date of
acceleration.
Section
12.19 Confidentiality .
Each
Agent and each Lender agrees (on behalf of itself and each of its affiliates,
directors, officers, employees and representatives) to use reasonable
precautions to keep confidential and use in compliance with applicable law
solely in connection with this Agreement and the other Loan Documents and the
transactions contemplated hereby and thereby, in accordance with the customary
procedures for handling confidential information of this nature and in
accordance with safe and sound practices of comparable commercial finance
companies, any non-public information supplied to it by the Loan Parties
pursuant to this Agreement or the other Loan Documents which is identified
in
writing by the Loan Parties as being confidential at the time the same is
delivered to such Person (and which at the time is not, and does not thereafter
become, publicly available or available to such Person from another source
not
known to be subject to a confidentiality obligation to such Person not to
disclose such information), provided
that
nothing herein shall limit the disclosure of any such information (i) to
the extent required by statute, rule, regulation or judicial process,
(ii) to counsel for any Agent or any Lender, (iii) to examiners,
auditors, accountants or Securitization Parties, (iv) in connection with
any litigation to which any Agent or any Lender is a party, (v) to any
assignee or participant (or prospective assignee or participant) so long as
such
assignee or participant (or prospective assignee or participant) first agrees,
in writing, to be bound by confidentiality provisions similar in substance
to
this 0,
or (vi)
to Fitch and/or other ratings agencies, as such Lender reasonably deems
necessary or appropriate in connection with such Lender's obtaining financing;
provided,
however, that such financial institution or ratings agency shall be informed
of
the confidentiality of such information. Each Agent and each Lender agrees
that,
upon receipt of a request or identification of the requirement for disclosure
pursuant to clause (iv) hereof, it will make reasonable efforts to keep the
Loan Parties informed of such request or identification; provided
that the
each Loan Party acknowledges that each Agent and each Lender may make disclosure
as required or requested by any Governmental Authority or representative thereof
and that each Agent and each Lender may be subject to review by Securitization
Parties or other regulatory agencies and may be required to provide to, or
otherwise make available for review by, the representatives of such parties
or
agencies any such non-public information.
-113-
Section
12.20 Integration .
This
Agreement, together with the other Loan Documents, reflects the entire
understanding of the parties with respect to the transactions contemplated
hereby and shall not be contradicted or qualified by any other agreement, oral
or written, before the date hereof.
Section
12.21 USA
Patriot Act.
Each
Lender that is subject to the requirements of the USA Patriot Act (Title 111
of
Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act")
hereby
notifies the Borrower and Guarantors that pursuant to the requirements of the
Act, it is required to obtain, verify and record information that identifies
the
Borrower and Guarantors, which information includes the name and address of
the
Borrower and Guarantors and other information that will allow such Lender to
identify the Borrower and Guarantors in accordance with the Act.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
-114-
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their respective officers thereunto duly authorized, as of the date first above
written.
|
BORROWER:
MAXXCOM
INC., a Delaware corporation
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ |
||
| Title: President | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
||
| Title: S.V.P. | ||
|
GUARANTORS:
MDC
PARTNERS INC., a Canadian corporation
MAXXCOM
INC., an Ontario corporation
MAXXCOM
(NOVA SCOTIA) CORP., a Nova Scotia corporation
656712
ONTARIO LIMITED, an Ontario corporation
ACCUMARK
COMMUNICATIONS INC., an Ontario corporation
ACLC
INC., an Ontario corporation
STUDIOTYPE
INC., an Ontario corporation
▇▇▇▇▇▇
▇▇▇▇▇▇ CANADA INC., an Ontario corporation
▇▇▇▇▇▇▇▇▇
BAS, an Ontario partnership
▇▇▇▇▇
▇▇▇ HOLDINGS LTD., an Ontario corporation
▇▇▇▇▇
▇▇▇ DESIGN INC., an Ontario corporation
TREE
CITY INC., an Ontario corporation
▇▇▇▇▇
▇▇▇▇▇ IRADESSO CORP., an Ontario corporation
|
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| |
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-115-
|
COMPUTER
COMPOSITION OF CANADA INC., an Ontario corporation
▇▇▇▇▇▇▇
▇▇▇▇▇▇ + BOGUSKY (NOVA SCOTIA) CO., a Nova Scotia corporation
NORTHSTAR
RESEARCH HOLDINGS CANADA INC., an Ontario corporation
NORTHSTAR
RESEARCH PARTNERS INC., an Ontario corporation
ZIG
INC., an Ontario corporation
MAXXCOM
(USA) HOLDINGS INC., a Delaware corporation
MAXXCOM
(USA) FINANCE COMPANY, a Delaware corporation
MDC
CORPORATE (US) INC., a Delaware corporation
MDC
TRAVEL, INC., a Delaware corporation
ACCENT
ACQUISITION CO., a Delaware corporation
ACCENT
MARKETING SERVICES, L.L.C., a Delaware limited liability
company
BRATSKEIR
& COMPANY, INC., a Delaware corporation
COMPANY
C COMMUNICATIONS, INC., a Delaware corporation
COLLE
& ▇▇▇▇▇, INC., a Minnesota corporation
SABLE
ADVERTISING SYSTEMS, INC., a Minnesota corporation
CPB
ACQUISITION INC., a Delaware corporation
▇▇▇▇▇▇▇
▇▇▇▇▇▇ & BOGUSKY LLC, a Delaware limited liability
company
FMA
ACQUISITION CO., a Delaware corporation
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ LLC, a Delaware limited liability company
HELLO
ACQUISITION INC., a Delaware corporation
HELLO
DESIGN, LLC, a California limited liability company
|
||
| |
|
|
|
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-116-
|
VITROROBERTSON
LLC, a Delaware limited liability company
KBP
HOLDINGS LLC, a Delaware limited liability company
DOTGLU
LLC, a Delaware limited liability company
▇▇▇▇▇▇▇▇▇▇▇
BOND & PARTNERS LLC, a Delaware limited liability company
▇▇▇▇▇▇▇▇▇▇▇
BOND & PARTNERS WEST LLC, a Delaware limited liability
company
MF+P
ACQUISITION CO., a Delaware corporation
MARGEOTES
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC, a Delaware limited liability company
MDC/KBP
ACQUISITION INC., a Delaware corporation
HL
GROUP PARTNERS LLC, a Delaware limited liability company
THE
ITO PARTNERSHIP, LLC, a Delaware limited liability company
MONO
ADVERTISING, LLC, a Delaware limited liability company
SMI
ACQUISITION CO., a Delaware corporation
SOURCE
MARKETING LLC, a New York limited liability company
TRACK
21 LLC, a Delaware limited liability company
TARGETCOM
LLC, a Delaware limited liability company
TC
ACQUISITION INC., a Delaware corporation
▇▇▇▇▇
▇▇▇ DESIGN (USA) LLC, a Delaware limited liability company
HW
ACQUISITION LLC, a Delaware limited liability company
ZIG
(USA) LLC, a Delaware limited liability company
NORTHSTAR
RESEARCH GP LLC, a Delaware limited liability company
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| |
|
|
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-117-
|
NORTHSTAR
RESEARCH HOLDINGS USA LP, a Delaware limited partnership
NORTHSTAR
RESEARCH PARTNERS (USA) LLC, a Delaware limited liability
company
TREND
CORE, LLC, a Delaware limited liability company
YAMAMOTO
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, INC., a Delaware corporation
ZG
ACQUISITION INC., a Delaware corporation
ZYMAN
GROUP, LLC, a Delaware limited liability company
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇ |
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-118-
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COLLATERAL
AGENT AND LENDER:
FORTRESS
CREDIT CORP.
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ADMINISTRATIVE
AGENT AND REVOLVING LENDER:
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FARGO FOOTHILL, INC.
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-119-