EXHIBIT 10.47
EXECUTION
AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
dated as of September 30, 2001
among
EQUINIX OPERATING CO., INC.
as Borrower
and
EQUINIX, INC. AND CERTAIN OF ITS SUBSIDIARIES,
as Guarantors,
VARIOUS LENDERS,
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
as Joint Lead Arranger, Joint Book Runner and Syndication Agent,
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.,
as Joint Lead Arranger and Joint Book Runner,
CITICORP USA, INC.,
as Administrative Agent,
and
CIT LENDING SERVICES CORPORATION
as Collateral Agent,
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$125,000,000 SENIOR SECURED CREDIT FACILITIES
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS AND INTERPRETATION ............................... 2
1.1 Definitions .................................................... 2
1.2 Accounting Terms ............................................... 32
1.3 Interpretation, etc ............................................ 33
SECTION 2. LOANS ........................................................ 33
2.1 Confirmation and Redesignation of Existing Loans as
Tranche A Term Loans ........................................... 33
2.2 Tranche B Term Loans ........................................... 34
2.3 Pro Rata Shares ................................................ 35
2.4 Use of Proceeds ................................................ 35
2.5 Evidence of Debt; Register; Lenders' Books and Records;
Notes .......................................................... 36
2.6 Interest on Loans .............................................. 36
2.7 Conversion/Continuation ........................................ 38
2.8 Default Interest ............................................... 38
2.9 Fees ........................................................... 39
2.10 Scheduled Payments ............................................. 39
2.11 Voluntary Prepayments/Commitment Reductions .................... 40
2.12 Mandatory Prepayments/Commitment Reductions .................... 41
2.13 Application of Prepayments/Reductions .......................... 42
2.14 Allocation of Certain Payments and Proceeds .................... 42
2.15 General Provisions Regarding Payments .......................... 42
2.16 Ratable Sharing ................................................ 43
2.17 Making or Maintaining Eurodollar Rate Loans .................... 44
2.18 Increased Costs; Capital Adequacy .............................. 46
2.19 Taxes; Withholding, etc ........................................ 47
2.20 Obligation to Mitigate ......................................... 49
2.21 Defaulting Lenders ............................................. 50
2.22 Removal or Replacement of a Lender ............................. 50
SECTION 3. CONDITIONS PRECEDENT ......................................... 51
3.1 Conditions to Effectiveness .................................... 51
3.2 Conditions to Each Credit Extension ............................ 56
SECTION 4. REPRESENTATIONS AND WARRANTIES ............................... 56
4.1 Organization; Requisite Power and Authority; Qualification ..... 57
4.2 Capital Stock and Ownership .................................... 57
4.3 Due Authorization .............................................. 57
4.4 No Conflict .................................................... 57
4.5 Governmental Consents .......................................... 57
4.6 Binding Obligation ............................................. 58
4.7 Effective Date Financial Statements ............................ 58
4.8 Projections .................................................... 58
4.9 No Material Adverse Change ..................................... 58
4.10 No Restricted Junior Payments .................................. 58
4.11 Adverse Proceedings, etc ....................................... 58
4.12 Payment of Taxes ............................................... 59
4.13 Properties ..................................................... 59
4.14 Collateral ..................................................... 60
4.15 Environmental Matters .......................................... 60
4.16 No Defaults .................................................... 61
4.17 Material Contracts ............................................. 61
4.18 Governmental Regulation ........................................ 61
4.19 Margin Stock ................................................... 61
4.20 Employee Matters ............................................... 62
4.21 Employee Benefit Plans ......................................... 62
4.22 Solvency ....................................................... 62
4.23 Compliance with Statutes, etc .................................. 63
4.24 Disclosure ..................................................... 63
SECTION 5AFFIRMATIVE COVENANTS .......................................... 63
5.1 Financial Statements and Other Reports ......................... 63
5.2 Existence ...................................................... 68
5.3 Payment of Taxes and Claims .................................... 68
5.4 Maintenance of Properties ...................................... 68
5.5 Insurance ...................................................... 68
5.6 Books and Records; Inspections; Lenders Meetings ............... 69
5.7 Compliance with Laws ........................................... 70
5.8 Environmental .................................................. 70
5.9 Subsidiaries ................................................... 71
5.10 Post Closing Covenants With Respect to Real Estate Assets ...... 72
5.11 Interest Rate Protection ....................................... 72
5.12 Post Closing Covenants With Respect to Permitted Equipment
Financing Collateral ........................................... 73
5.13 Further Assurances ............................................. 73
5.14 Notice of Default Under Lease .................................. 73
5.15 Certain Post Effective Date Obligations ........................ 73
SECTION 6NEGATIVE COVENANTS ............................................. 73
6.1 Indebtedness ................................................... 74
6.2 Liens .......................................................... 75
6.3 No Further Negative Pledges .................................... 77
6.4 Restricted Junior Payments; Restrictions on Investments in
Unrestricted Subsidiaries; Restricted Rental and Upkeep
Payments ....................................................... 77
6.5 Investments .................................................... 78
6.6 Stage 1 Financial Covenants .................................... 79
6.7 Stage 2 Financial Covenants .................................... 80
6.8 Maximum Consolidated Capital Expenditures ...................... 81
6.9 Fundamental Changes; Disposition of Assets; Acquisitions ....... 81
6.10 Disposal of Subsidiary Interests ............................... 82
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6.11 Sales and Lease-Backs ........................................ 82
6.12 Sale and Discount of Receivables ............................. 83
6.13 Transactions with Shareholders and Affiliates ................ 83
6.14 Conduct of Business .......................................... 83
6.15 Permitted IBX Facilities ..................................... 83
6.16 Amendments or Waivers of Certain Documents ................... 83
6.17 Fiscal Year .................................................. 84
6.18 Unrestricted Subsidiaries .................................... 84
6.19 Acquisition and Ownership of Assets by Company ............... 84
6.20 Company Subsidiaries ......................................... 84
SECTION 7. GUARANTY .................................................... 84
7.1 Guaranty of the Obligations .................................. 84
7.2 Contribution by Guarantors ................................... 85
7.3 Payment by Guarantors ........................................ 85
7.4 Liability of Guarantors Absolute ............................. 86
7.5 Waivers by Guarantors ........................................ 88
7.6 Guarantors' Rights of Subrogation, Contribution, etc ......... 88
7.7 Subordination of Other Obligations ........................... 89
7.8 Continuing Guaranty .......................................... 89
7.9 Authority of Guarantors or Borrower .......................... 89
7.10 Financial Condition of Borrower .............................. 89
7.11 Bankruptcy, etc .............................................. 90
7.12 Notice of Events ............................................. 90
7.13 Discharge of Guaranty Upon Sale of Guarantor ................. 91
SECTION 8. EVENTS OF DEFAULT ........................................... 91
8.1 Events of Default ............................................ 91
SECTION 9. AGENTS ...................................................... 94
9.1 Appointment of Agents ........................................ 94
9.2 Powers and Duties ............................................ 94
9.3 General Immunity ............................................. 95
9.4 Agents Entitled to Act as Lender ............................. 95
9.5 Lenders' Representations, Warranties and Acknowledgment ...... 96
9.6 Right to Indemnity ........................................... 96
9.7 Successor Administrative Agent and Collateral Agent .......... 96
9.8 Collateral Documents and Guaranty ............................ 97
SECTION 10. MISCELLANEOUS .............................................. 98
10.1 Notices ...................................................... 98
10.2 Expenses ..................................................... 98
10.3 Indemnity .................................................... 99
10.4 Set-Off ...................................................... 99
10.5 Amendments and Waivers ....................................... 100
10.6 Successors and Assigns; Participations ....................... 102
10.7 Independence of Covenants .................................... 105
iii
10.8 Survival of Representations, Warranties and Agreements ......... 105
10.9 No Waiver; Remedies Cumulative ................................. 105
10.10 Marshalling; Payments Set Aside ................................ 105
10.11 Severability ................................................... 106
10.12 Entire Agreement ............................................... 106
10.3 Obligations Several; Independent Nature of Lenders' Rights ..... 106
10.14 Headings ....................................................... 106
10.15 APPLICABLE LAW ................................................. 106
10.16 CONSENT TO JURISDICTION ........................................ 106
10.17 WAIVER OF JURY TRIAL ........................................... 107
10.18 Confidentiality ................................................ 107
10.19 Usury Savings Clause ........................................... 108
10.20 Counterparts ................................................... 108
10.21 Effectiveness .................................................. 108
10.22 General Release .......................................... 109
10.23 Amendment and Restatement ...................................... 109
APPENDICES: A-1 Outstanding under Existing Credit Agreement
A-2 Tranche A Term Loans; Pro Rata Shares
A-3 Tranche B Term Loan Commitments; Pro Rata Shares
B Notice Addresses
SCHEDULES: 1.1(a) Permitted IBX Facilities
1.1(b) Unrestricted Subsidiaries
1.1(c) Certain EBITDA Adjustments
3.1(e)(A) Existing Mortgaged Properties
3.1(e)(B) Effective Date Mortgaged Properties
4.1 Jurisdictions of Organization and Qualification
4.2 Capital Stock and Ownership
4.5 Governmental Approvals
4.13 Real Estate Assets
4.17(a) Material Contracts
4.17(b) Intellectual Property
4.24 Disclosure
5.1 Additional Reporting Requirements
5.5 Insurance
5.15 Certain Post Effective Date Obligations
6.1 Certain Indebtedness
6.2 Certain Liens
6.4(b)(i) Restricted Foreign Lease Payments
6.5(i) Employee Loans
6.6(a) Stage 1 Minimum Annualized/Monthly Consolidated
Revenues
6.6(b) Stage 1 Maximum Consolidated EBITDA Losses
iv
6.6(e) Stage 1 Minimum Cash and Cash Equivalents
6.7(a) Stage 2 Senior Secured Debt to Annualized
Consolidated EBITDA
6.7(b) Stage 2 Total Debt to Annualized Consolidated EBITDA
6.7(c) Stage 2 Minimum Annualized Consolidated
EBITDA/Interest Expense Ratio
6.7(d) Stage 2 Pro Forma Debt Service Coverage Ratio
6.7(e) Stage 2 Minimum Cash and Cash Equivalents
6.8 Stage 1 and 2 Maximum Consolidated Capital
Expenditures
6.13 Certain Affiliate Transactions
EXHIBITS: A-1 Funding Notice
A-2 Conversion/Continuation Notice
B-1 Tranche A Term Loan Note
B-2 Tranche B Term Loan Note
C Compliance Certificate
D Opinions of Counsel
E Assignment Agreement
F Certificate Re Non-bank Status
G Effective Date Certificate
H Counterpart Agreement
I Master Pledge and Security Agreement
J Mortgage
K Landlord Agreement
L Borrowing Base Certificate
M Form of Confirmation of Grant
N Form of Release
O Form of EBITDA Certificate
v
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
This AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT, dated as of
September 30, 2001, is entered into by and among EQUINIX OPERATING CO., INC., a
Delaware corporation, as the Borrower ("OpCo"), EQUINIX, INC., a Delaware
corporation, as a Guarantor ("Company"), and CERTAIN SUBSIDIARIES OF THE
COMPANY, as Guarantors, the Lenders party hereto from time to time, ▇▇▇▇▇▇▇
▇▇▇▇▇ CREDIT PARTNERS L.P. ("GSCP"), as Joint Lead Arranger, Joint Book Runner
and Syndication Agent (in such capacity, "Syndication Agent"), ▇▇▇▇▇▇▇ ▇▇▇▇▇
BARNEY INC., as Joint Lead Arranger (in such capacity, together with GSCP, the
"Joint Lead Arrangers"), and Joint Book Runner (in such capacity, together with
GSCP, the "Joint Book Runners"), CITICORP USA, INC., as Administrative Agent
(together with its permitted successors and assigns in such capacity,
"Administrative Agent") and CIT LENDING SERVICES CORPORATION, as Collateral
Agent (together with its permitted successors and assigns in such capacity,
"Collateral Agent").
RECITALS:
WHEREAS, capitalized terms used in these Recitals shall have the
respective meanings set forth for such terms in Section 1.1 hereof;
WHEREAS, pursuant to the Existing Credit Agreement, Lenders agreed
to extend certain credit facilities to Borrowers, in an aggregate amount not to
exceed $150,000,000, consisting of $50,000,000 aggregate principal amount of
Term Loans drawn on January 2, 2001, $75,000,000 aggregate principal amount of
Delayed Draw Term Loans drawn on March 5, 2001, and $25,000,000 aggregate
principal amount of Revolving Loans drawn on June 27, 2001, the proceeds of
which were used to (i) to pay Transaction Costs, (ii) to provide financing for
the cost of design, development, acquisition, construction, installation,
improvement, transportation, and/or integration of equipment, inventory or
facility assets and of leasing and acquiring of real property and/or (iii) for
the working capital and other general corporate purposes of Company and its
Restricted Subsidiaries, as well as for certain limited purposes of its
Unrestricted Subsidiaries;
WHEREAS, pursuant to the Existing Credit Agreement and the other
documents entered into in connection therewith Company secured all of its
obligations under the Existing Credit Agreement by granting to Collateral Agent,
for the benefit of Secured Parties, a First Priority Lien on substantially all
of its assets, including a pledge of all of the Capital Stock of each of its
Restricted Subsidiaries, other than Purchase Money Loans made to Company which
were secured solely by the assets financed with the proceeds of such Loans;
WHEREAS, pursuant to the Existing Credit Agreement and the other
documents entered into in connection therewith OpCo has secured all of its
obligations under the Existing Credit Agreement by granting to Collateral Agent,
for the benefit of Secured Parties, a First Priority Lien on substantially all
of its assets, including a pledge of all of the Capital Stock of each of its
Restricted Subsidiaries and 65% of all the Capital Stock of each of its
first-tier Foreign Subsidiaries;
WHEREAS, pursuant to the Existing Credit Agreement and the other
documents entered into in connection therewith Guarantors have guaranteed the
obligations of OpCo (and, to the extent not prohibited under the Senior Notes,
Company) hereunder and to secure their respective obligations thereunder by
granting to Collateral Agent, for the benefit of Secured Parties, a First
Priority Lien on substantially all of their respective assets, including a
pledge of all of the Capital Stock of each of their respective Domestic
Subsidiaries and 65% of all the Capital Stock of each of their respective
Foreign Subsidiaries;
WHEREAS, Company and OpCo have informed Lenders that certain
financial covenants set forth in Sections 6.6 and 6.7 of the Existing Credit
Agreement will not be satisfied as of September 30, 2001 and subsequent dates
and have requested that Lenders agree to amend such financial covenants;
WHEREAS, in order to induce Lenders to agree to amend the financial
covenants referred to above, Company and OpCo have agreed to prepay $50,000,000
of the outstanding Existing Loans on the Effective Date (subject to OpCo's right
to reborrow up to $25,000,000 under certain terms and conditions), to amend and
restate the Existing Credit Agreement as provided herein and to take certain
other actions as set forth in Section 3.1 and other provisions of this
Agreement, all on the terms and conditions set forth herein;
WHEREAS, it is the intent of the parties hereto that this Agreement
not constitute a novation of the obligations and liabilities of the parties
under the Existing Credit Agreement and that this Agreement amend and restate in
its entirety the Existing Credit Agreement and re-evidence the Obligations of
OpCo and each other Credit Party outstanding after giving effect to the
prepayment of Existing Loans on the Effective Date contemplated hereby; and
WHEREAS, it is the intent of Credit Parties to confirm that all
Obligations of Credit Parties under the other Credit Documents, as amended
hereby, shall continue in full force and effect and that, from and after the
Effective Date, all references to the "Credit Agreement" contained therein shall
be deemed to refer to this Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree to amend and
restate the Existing Credit Agreement as follows:
SECTION 1. DEFINITIONS AND INTERPRETATION
1.1 Definitions. The following terms used herein, including in the
preamble, recitals, exhibits and schedules hereto, shall have the following
meanings:
"Adjusted Eurodollar Rate" means, for any Interest Rate
Determination Date with respect to an Interest Period for a Eurodollar Rate
Loan, the rate per annum obtained by dividing (and rounding upward to the next
whole multiple of 1/16 of 1%) (i) (a) the rate per annum (rounded to the nearest
1/100 of 1%) equal to the rate determined by Administrative Agent to be the
offered rate which appears on the page of the Telerate Screen which displays an
average British Bankers Association Interest Settlement Rate (such page
currently being page number 3740 or 3750, as applicable) for deposits (for
delivery on the first day of such period)
2
with a term equivalent to such period in Dollars, determined as of approximately
11:00 a.m. (London, England time) on such Interest Rate Determination Date, or
(b) in the event the rate referenced in the preceding clause (a) does not appear
on such page or service or if such page or service shall cease to be available,
the rate per annum (rounded to the nearest 1/100 of 1%) equal to the rate
determined by Administrative Agent to be the offered rate on such other page or
other service which displays an average British Bankers Association Interest
Settlement Rate for deposits (for delivery on the first day of such period) with
a term equivalent to such period in Dollars, determined as of approximately
11:00 a.m. (London, England time) on such Interest Rate Determination Date, or
(c) in the event the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum (rounded to the nearest 1/100 of 1%) equal to
the offered quotation rate to first class banks in the London interbank market
by Administrative Agent for deposits (for delivery on the first day of the
relevant period) in Dollars of amounts in same day funds comparable to the
principal amount of the applicable Loan of Administrative Agent, in its capacity
as a Lender, for which the Adjusted Eurodollar Rate is then being determined
with maturities comparable to such period as of approximately 11:00 a.m.
(London, England time) on such Interest Rate Determination Date, by (ii) an
amount equal to (a) one minus (b) the Applicable Reserve Requirement.
"Administrative Agent" as defined in the preamble hereto.
"Adverse Proceeding" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration (whether or not purportedly on behalf of Company or any of its
Restricted Subsidiaries) at law or in equity, or before or by any Governmental
Authority, domestic or foreign (including any Environmental Claims), whether
pending or, to the knowledge of Company or any of its Restricted Subsidiaries,
threatened against or affecting Company or any of its Restricted Subsidiaries or
any property of Company or any of its Restricted Subsidiaries.
"Affected Lender" as defined in Section 2.17(b).
"Affected Loans" as defined in Section 2.17(b).
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote 10% or more of the Securities having
ordinary voting power for the election of directors of such Person or (ii) to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting securities or by contract or otherwise.
Neither any Agent nor any Lender shall be deemed Affiliates of any Credit Party,
by virtue of the security interests granted under the Pledge and Security
Agreement.
"Agent" means each of the Joint Lead Arrangers, Joint Book Runners,
Syndication Agent, Administrative Agent, Collateral Agent and Documentation
Agent.
"Aggregate Amounts Due" as defined in Section 2.16.
3
"Aggregate Payments" as defined in Section 7.2.
"Agreement" means prior to the Effective Date, the Existing Credit
Agreement and, on and after the Effective Date, this Amended and Restated Credit
and Guaranty Agreement, dated as of September 30, 2001, as it may be amended,
restated, supplemented or otherwise modified from time to time.
"Annualized Consolidated EBITDA" means, as of any date of
determination, Consolidated EBITDA for the most recently completed Fiscal
Quarter multiplied by four.
"Annualized Consolidated Revenues" means, as of any date of
determination, Net Revenues for the most recently completed Fiscal Quarter
multiplied by four.
"Applicable Commitment Fee Percentage" means 0.50% per annum.
"Applicable Margin" means (i) from the Closing Date until the end of
Stage 1, (a) with respect to Loans that are Eurodollar Rate Loans, 4.25% per
annum and (b) with respect to Loans that are Base Rate Loans, an amount equal to
the Applicable Margin for Eurodollar Rate Loans as set forth in clause (i)(a)
above, minus 1.00% per annum; provided that, on and after the Effective Date the
interest rates otherwise applicable pursuant to this clause (i) shall be
increased by 0.50% per annum; and (ii) during Stage 2, (a) with respect to the
Loans that are Eurodollar Rate Loans, a percentage, per annum, determined by
reference to the Total Leverage Ratio in effect from time to time as set forth
below:
----------------------------------------------------
Total
Leverage Applicable Margin
Ratio for Eurodollar Rate
----------------------------------------------------
* 6.0:1.00 4.25%
----------------------------------------------------
** 6.0:1.00 4.00%
* 4.5:1.00
----------------------------------------------------
** 4.5:1.00 3.75%
* 3.0:1.00
----------------------------------------------------
** 3.0:1.00 3.50%
----------------------------------------------------
and (b) with respect to Loans that are Base Rate Loans, an amount equal to the
Applicable Margin for Eurodollar Rate Loans as set forth in clause (ii)(a) above
minus 1.00% per annum. No change in the Applicable Margin contemplated by clause
(ii) above shall be effective until three (3) Business Days after the date on
which Administrative Agent shall have received the applicable financial
statements and a Compliance Certificate pursuant to Section 5.1(d) calculating
the Total Leverage Ratio. At any time Company has not submitted to
Administrative Agent the applicable information as and when required under
Section 5.1(d), the Applicable Margin shall be determined as if the Total
Leverage Ratio were in excess of 6.00:1.00 until such time as Company has
provided the information required under Section 5.1(d). Within one (1) Business
Day of receipt of the applicable information as and when required under Section
5.1(d), Administrative Agent shall give each Lender telefacsimile or telephonic
notice (confirmed in writing) of the Applicable Margin in effect from such date.
* = more than equals to
** = less than
4
"Applicable Reserve Requirement" means, at any time, for any
Eurodollar Rate Loan, the maximum rate, expressed as a decimal, at which
reserves (including, without limitation, any basic marginal, special,
supplemental, emergency or other reserves) are required to be maintained with
respect thereto against "Eurocurrency liabilities" (as such term is defined in
Regulation D) under regulations issued from time to time by the Board of
Governors of the Federal Reserve System or other applicable banking regulator.
Without limiting the effect of the foregoing, the Applicable Reserve Requirement
shall reflect any other reserves required to be maintained by such member banks
with respect to (i) any category of liabilities which includes deposits by
reference to which the applicable Adjusted Eurodollar Rate or any other interest
rate of a Loan is to be determined, or (ii) any category of extensions of credit
or other assets which include Eurodollar Rate Loans. A Eurodollar Rate Loan
shall be deemed to constitute Eurocurrency liabilities and as such shall be
deemed subject to reserve requirements without benefits of credit for proration,
exceptions or offsets that may be available from time to time to the applicable
Lender. The rate of interest on Eurodollar Rate Loans shall be adjusted
automatically on and as of the effective date of any change in the Applicable
Reserve Requirement.
"Asset Sale" means a sale, lease or sublease (as lessor or
sublessor), sale and leaseback, assignment, conveyance, transfer or other
disposition (any such transaction, a "Disposition") to, or any exchange of
property with, any Person (other than Company or any Guarantor Subsidiary), in
one transaction or a series of transactions, of all or any part of Company's or
any of its Restricted Subsidiaries' businesses, assets or properties of any
kind, whether real, personal, or mixed and whether tangible or intangible,
whether now owned or hereafter acquired, including, without limitation, the
Capital Stock of any of Company's Restricted Subsidiaries, other than (i)
----------
inventory (or other assets) sold or leased in the ordinary course of business,
(ii) disposals of obsolete, worn out or surplus property, (iii) Dispositions of
other assets for aggregate consideration of less than $50,000 with respect to
any transaction or series of related transactions and less than $250,000 in the
aggregate during any Fiscal Year, (iv) sales of Cash Equivalents in the ordinary
course of business, (v) Permitted Liens, and (vi) sale and leaseback
transactions in connection with a Permitted Equipment Financing.
"Assignment Agreement" means an Assignment Agreement substantially
in the form of Exhibit E, with such amendments or modifications as may be
approved by Administrative Agent.
"Authorized Officer" means, as applied to any Person, any individual
holding the position of chairman of the board (if an officer), chief executive
officer, president and one of its vice presidents (or the equivalent thereof),
or such Person's chief financial officer and treasurer.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy," as now and hereafter in effect, or any successor statute.
"Base Rate" means, for any day, a rate per annum equal to the
greater of (i) the Prime Rate in effect on such day and (ii) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Base Rate
due to a change in the Prime Rate or the Federal
5
Funds Effective Rate shall be effective on the effective day of such change in
the Prime Rate or the Federal Funds Effective Rate, respectively.
"Base Rate Loan" means a Loan bearing interest at a rate determined
by reference to the Base Rate.
"Basic Upkeep" has the meaning assigned in Section 6.4(b).
"Beneficiary" means each Agent, Lender and Lender Counterparty.
"Borrower" means (y) prior to the Effective Date (i) with respect to
Loans (other than Purchase Money Loans) and related Obligations, OpCo and (ii)
with respect to Purchase Money Loans and related Obligations, Company and (z) on
and after the Effective Date, OpCo.
"Borrowing Base" means, at any time, 60% of Eligible Net PP&E. The
Borrowing Base at any date shall be determined by reference to the Borrowing
Base Certificate most recently delivered hereunder on or prior to such date as
specified in Section 5.1(e).
"Borrowing Base Certificate" has the meaning specified in Section
5.1(e).
"Business Day" means (i) any day excluding Saturday, Sunday and any
day which is a legal holiday under the laws of the State of New York or is a day
on which banking institutions located in such state are authorized or required
by law or other governmental action to close and (ii) with respect to all
notices, determinations, fundings and payments in connection with the Adjusted
Eurodollar Rate or any Eurodollar Rate Loans, the term "Business Day" shall mean
any day which is a Business Day described in clause (i) and which is also a day
for trading by and between banks in Dollar deposits in the London interbank
market.
"Capital Expenditure" means, for any period, the aggregate of all
expenditures of any Person during such period that, in accordance with GAAP, are
or should be included in "purchase of property and equipment" or similar items,
including without limitation construction in progress, reflected in the
statement of cash flows of such Person. Notwithstanding the foregoing, the term
"Capital Expenditure" shall not include capital expenditures constituting (i)
the reinvestment of Net Asset Sale Proceeds or Net Insurance/Condemnation
Proceeds made in accordance with Sections 2.12(a) and (b), (ii) Permitted
Acquisitions and (iii) that portion of any capital expenditure solely
attributable to or deemed paid for through the issuance by Company of a warrant
to purchase capital stock of Company.
"Capital Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is or should be accounted for as a capital lease on the
balance sheet of that Person.
"Capital Stock" means any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation),
including, without limitation, partnership interests and membership interests,
and any and all warrants, rights or options to purchase or other arrangements or
rights to acquire any of the foregoing.
6
"Cash" means money, currency or a credit balance in any demand or
Deposit Account.
"Cash Equivalents" means, as at any date of determination, (i)
marketable securities (a) issued or directly and unconditionally guaranteed as
to interest and principal by the United States Government or (b) issued by any
agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within one year
after such date; (ii) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof, in each case maturing within one year after such
date and having, at the time of the acquisition thereof, a rating of at least
A-1 from S&P or at least P-1 from Moody's; (iii) commercial paper maturing no
more than one year from the date of creation thereof and having, at the time of
the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
Moody's; (iv) certificates of deposit or bankers' acceptances maturing within
one year after such date and issued or accepted by any Lender or by any
commercial bank organized under the laws of the United States of America or any
state thereof or the District of Columbia that (a) is at least "adequately
capitalized" (as defined in the regulations of its primary Federal banking
regulator) and (b) has Tier 1 capital (as defined in such regulations) of not
less than $100,000,000; (v) repurchase obligations of any Lender or of any
commercial bank that is a member of the Federal Reserve System, is organized
under the laws of the United States or any State thereof and has combined
capital and surplus of at least $1 billion having a term of not more than 90
days with respect to securities issued or fully guaranteed or insured by the
Government of the United States and (vi) shares of any money market mutual fund
that (a) has substantially all of its assets invested continuously in the types
of investments referred to in clauses (i) and (ii) above, (b) has net assets of
not less than $500,000,000, and (c) has the highest rating obtainable from
either S&P or Moody's or is operated by ▇▇▇▇▇▇▇, Sachs & Co. or an Affiliate
thereof.
"Certificate re Non-Bank Status" means a certificate substantially
in the form of Exhibit F.
"Change of Control" means, at any time, (i) any Person or "group"
(within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) other than
the Founders (a) (x) shall have acquired beneficial ownership of 35% or more on
a fully diluted basis of the voting and/or economic interest in the Capital
Stock of Company and (y) the Founders own, in the aggregate, a lesser percentage
of the total voting and/or economic interest in the Capital Stock of Company
than such Person and do not have the right or ability by voting power, contract
or otherwise to elect or designate for election a majority of the board of
directors (or similar governing body) of Company or (b) shall have obtained the
power (whether or not exercised) to elect a majority of the members of the board
of directors (or similar governing body) of Company; (ii) the majority of the
seats (other than vacant seats) on the board of directors (or similar governing
body) of Company cease to be occupied by Persons who either (a) were members of
the board of directors of Company on the Closing Date or (b) were nominated for
election by the board of directors of Company, a majority of whom were directors
on the Closing Date or whose election or nomination for election was previously
approved by a majority of such directors; or (iii) any "change of control" or
similar event under the Senior Note Indenture or any document evidencing any
Permitted Equipment Financing or Permitted Unsecured Company Debt shall occur.
7
"Class" means (i) with respect to Lenders, each of the following
classes of Lenders, (a) Lenders having Tranche A Term Loan Exposure and (b)
Lenders having Tranche B Term Loan Exposure and (ii) with respect to Loans, each
of the following classes of Loans, (a) Tranche A Term Loans and (b) Tranche B
Term Loans.
"Closing Date" means December 20, 2000, the date on which the
conditions set forth in Section 3.1 of the Existing Credit Agreement were
satisfied.
"Collateral" means, collectively, all of the real, personal and
mixed property (including Capital Stock) in which Liens are purported to be
granted pursuant to the Collateral Documents as security for the Obligations.
"Collateral Agent" as defined in the preamble hereto.
"Collateral Documents" means the Pledge and Security Agreement, the
Mortgages, the Landlord Agreements and all other instruments, documents and
agreements delivered by any Credit Party pursuant to this Agreement or any of
the other Credit Documents in order to grant to Collateral Agent, for the
benefit of Secured Parties, a Lien on any real, personal or mixed property of
that Credit Party as security for the Obligations.
"Company" as defined in the preamble hereto.
"Complementary Business" means storage services, content
distribution, network management, security services, monitoring, site management
and similar related activities, in each case relating to the operation of
Permitted IBX Facilities.
"Compliance Certificate" means a Compliance Certificate
substantially in the form of Exhibit C.
"Consolidated Capital Expenditures" means, for any period, the
aggregate of all Capital Expenditures of Company and its Restricted Subsidiaries
during such period determined on a consolidated basis, in accordance with GAAP.
"Consolidated Cash Interest Expense" means, for any period,
Consolidated Interest Expense for such period, excluding any amount not payable
in Cash.
"Consolidated Current Assets" means, as at any date of
determination, the total assets of Company and its Restricted Subsidiaries on a
consolidated basis that may properly be classified as current assets in
conformity with GAAP, excluding Cash and Cash Equivalents.
"Consolidated Current Liabilities" means, as at any date of
determination, the total liabilities of Company and its Restricted Subsidiaries
on a consolidated basis that may properly be classified as current liabilities
in conformity with GAAP, excluding the current portion of long term debt.
"Consolidated EBITDA" means, for any period, an amount determined
for Company and its Restricted Subsidiaries on a consolidated basis equal to the
sum, without duplication, of the amounts for such period of (a) Consolidated Net
Income, (b) Consolidated
8
Interest Expense, (c) provisions for taxes based on income, (d) total
depreciation expense, (e) total amortization expense, and (f) other items
reducing Consolidated Net Income set forth on Schedule 1.1(c), all of the
---------------
foregoing as determined in conformity with GAAP.
"Consolidated Excess Cash Flow" means, for any period, an amount (if
positive) equal to: (i) the sum, without duplication, of the amounts for such
period of (a) Consolidated EBITDA, minus (b) the Consolidated Working Capital
-----
Adjustment, minus (ii) the sum, without duplication, of the amounts for such
period of (a) repayments of Consolidated Total Debt, (b) Consolidated Capital
Expenditures (excluding any Capital Expenditures prohibited by Section 6.8) (net
of (i) any proceeds of any related financings with respect to such expenditures,
and (ii) any insurance and condemnation proceeds used to finance the replacement
of destroyed or appropriated property), (c) Consolidated Cash Interest Expense;
provided, that Consolidated Cash Interest Expense shall be deemed to include any
savings realized by Company and its Restricted Subsidiaries attributable to
interest deferrals and interest reductions in connection with the refinancing or
exchange of any the Senior Notes, and (d) provisions for current taxes based on
income of Company and its Restricted Subsidiaries and payable in cash with
respect to such period, and (e) to the extent not otherwise deducted in
determining Consolidated Excess Cash Flow, Cash consideration paid for Permitted
Acquisitions and Investments permitted hereunder (in each case, net of any
proceeds of related financings and issuances of Capital Stock incurred to
finance such Permitted Acquisitions and Investments).
"Consolidated Interest Expense" means, for any period, total
interest expense (including commitment fees and that portion attributable to
Capital Leases in accordance with GAAP and capitalized interest) of Company and
its Restricted Subsidiaries on a consolidated basis with respect to all
outstanding Indebtedness of Company and its Restricted Subsidiaries, including
all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing and net costs under Interest
Rate Agreements, but excluding, however, any amounts referred to in Section 2.9
payable on or before the Closing Date and fees payable to Lenders pursuant to
Section 3.1(j).
"Consolidated Net Income" means, for any period, (i) the net income
(or loss) of Company and its Restricted Subsidiaries on a consolidated basis for
such period taken as a single accounting period determined in conformity with
GAAP, minus (ii) (a) the income (or loss) of any Person (other than a Restricted
-----
Subsidiary) in which any other Person (other than Company or any of its
Restricted Subsidiaries) has a joint interest, except to the extent of the
amount of dividends or other distributions actually paid to Company or any of
its Restricted Subsidiaries by such Person during such period, (b) the income
(or loss) of any Person accrued prior to the date it becomes a Restricted
Subsidiary or is merged into or consolidated with Company or any of its
Restricted Subsidiaries or that Person's assets are acquired by Company or any
of its Restricted Subsidiaries, (c) the income of any Restricted Subsidiary to
the extent that the declaration or payment of dividends or similar distributions
by that Restricted Subsidiary of that income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary, (d) any after-tax gains or losses attributable to Asset
Sales or returned surplus assets of any Pension Plan, and (e) (to the extent not
included in clauses (a) through (d) above) any net extraordinary gains or net
extraordinary losses.
9
"Consolidated Senior Secured Debt" means, as at any time of
determination, the aggregate stated balance sheet amount of all outstanding
Indebtedness of Company and its Restricted Subsidiaries under (i) this
Agreement, (ii) the Permitted Equipment Financings, (iii) any secured trade
payables and (iv) Capital Leases.
"Consolidated Total Capitalization" means the sum of (a)
Consolidated Total Debt and (b) paid-in-equity capital of Company or any of its
Restricted Subsidiaries (including preferred stock but excluding (i) any
additional equity issued as pay-in-kind dividends on issued and outstanding
equity securities, (ii) any capital contributed by Company or any Restricted
Subsidiary to any of the Unrestricted Subsidiaries and (iii) any accumulated
deficits resulting from operations).
"Consolidated Total Debt" means, as at any date of determination,
the aggregate stated balance sheet amount of all Indebtedness (without giving
effect to any original issue discount) of Company and its Restricted
Subsidiaries determined on a consolidated basis in accordance with GAAP.
"Consolidated Working Capital" means, as at any date of
determination, the excess of Consolidated Current Assets over Consolidated
Current Liabilities.
"Consolidated Working Capital Adjustment" means, for any period on a
consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the end of such period exceeds (or is less
than) Consolidated Working Capital as of the beginning of such period.
"Contractual Obligation" means, as applied to any Person, any
provision of any Security issued by that Person or of any indenture, mortgage,
deed of trust, contract, undertaking, agreement or other instrument to which
that Person is a party or by which it or any of its properties is bound or to
which it or any of its properties is subject.
"Contributing Guarantors" as defined in Section 7.2.
"Conversion/Continuation Date" means the effective date of a
continuation or conversion, as the case may be, as set forth in the applicable
Conversion/Continuation Notice.
"Conversion/Continuation Notice" means a Conversion/Continuation
Notice substantially in the form of Exhibit A-2.
"Counterpart Agreement" means a Counterpart Agreement substantially
in the form of Exhibit H.
"Credit Date" means the date of a Credit Extension.
"Credit Document" means any of this Agreement, the Notes, if any,
the Collateral Documents, and all other documents, instruments or agreements
executed and delivered by a Credit Party for the benefit of the Agents, or any
Lender in connection herewith, including Hedge Agreements with any Lender
Counterparty, in each case, as may be amended, supplemented or otherwise
modified from time to time.
10
"Credit Extension" means the making of a Loan.
"Credit Party" means Company, OpCo and any of its Restricted
Subsidiaries from time to time party to a Credit Document.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement, futures contract, option contract, synthetic cap or other
similar agreement or arrangement, each of which is for the purpose of hedging
the foreign currency risk associated with Company's and its Restricted
Subsidiaries' operations.
"Default" means a condition or event that, after notice or lapse of
time or both, would constitute an Event of Default.
"Default Excess" means, with respect to any Defaulting Lender, the
excess, if any, of such Defaulting Lender's Pro Rata Share of the aggregate
outstanding principal amount of Loans of all Lenders (calculated as if all
Defaulting Lenders (other than such Defaulting Lender) had funded all of their
respective Defaulted Loans) over the aggregate outstanding principal amount of
all Loans of such Defaulting Lender.
"Default Period" as defined in Section 2.21.
"Defaulted Loan" as defined in Section 2.21.
"Defaulting Lender" as defined in Section 2.21.
"Delayed Draw Term Loan" has the meaning assigned to that term in
the Existing Credit Agreement.
"Deposit Account" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"Disposition" as defined within the definition Asset Sale.
"Disqualified Stock" means any Equity Interest that, by its terms
(or by the terms of any security into which it is convertible, or for which it
is exchangeable, in each case at the option of the holder thereof), or upon the
happening of any event, (a) matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to April 15, 2006; provided, however,
that any Equity Interest that would constitute Disqualified Stock solely because
the holders thereof have the right to require the Company to repurchase such
Equity Interest upon the occurrence of a Change of Control or an Asset Sale
shall not constitute Disqualified Stock if the terms of such Equity Interest
provide that the Company may not repurchase or redeem such Equity Interest
pursuant to such provisions unless such repurchase or redemption complies with
Section 6.4 or (b) requires the payment of cash dividends or other payments to
the holder thereon, unless through December 15, 2005 such cash dividends or
other payments are only required to be paid and are only paid from the proceeds
of the issuance of such Equity Interest and sums of such proceeds are at the
time of such issuance placed in escrow for the purpose of making such
11
payments sufficient to make such payments through such date and are at all times
prior to such date sufficient therefor.
"Dollars" and the sign "$" mean the lawful money of the United
States of America.
"Domestic Subsidiary" means any Subsidiary organized under the laws
of the United States of America, any State thereof or the District of Columbia.
"EBITDA Requirement" shall mean delivery to Lenders two Business
Days prior to the proposed Credit Date of a certificate in the form of Exhibit O
annexed hereto, together with the information referred to in such certificate,
duly executed by an Authorized Officer of Company on or before November 30,
2002, confirming, that Consolidated EBITDA for any three month period ended
August 31, September 30 or October 31, 2002 was not less than $3,242,500.
"Effective Date" means the date on which the conditions to
effectiveness set forth in Section 3.1 have been satisfied or waived by the
appropriate Lenders.
"Effective Date Certificate" means a certificate in the form of
Exhibit G annexed hereto dated as of the Effective Date and duly executed by an
Authorized Officer of Company
"Effective Date Mortgage" means a mortgage substantially in the form
of Exhibit J annexed hereto.
"Effective Date Mortgage Modification" means a modification to each
Existing Mortgage for the purpose of including the Obligations under this
Agreement as part of the obligations secured by such Existing Mortgage, and
otherwise in form satisfactory to the Agents.
"Existing Mortgages" means the Mortgages granted on December 20,
2000 as security for the Obligations under the Existing Credit Agreement.
"Effective Date Financial Plan" as defined in Section 4.8.
"Effective Date Financial Statements" means as of the Effective
Date, (i) the audited financial statements of Company and its Subsidiaries for
Fiscal Year 2000, consisting of balance sheets and the related consolidated
statements of income, stockholders' equity and cash flows for such Fiscal Year
and (ii) the unaudited financial statements of Company and its Subsidiaries as
of the Fiscal Quarter ending June 30, 2001, consisting of a balance sheet and
the related consolidated statements of income and cash flows for the six-month
period ending on such date, and, in the case of clauses (i) and (ii), certified
by the chief financial officer of Company that they fairly present, in all
material respects, the financial condition of Company and its Subsidiaries as at
the dates indicated and the results of their operations and their cash flows for
the periods indicated, subject to changes resulting from audit and normal
year-end adjustments.
12
"Eligible Assignee" means (i) any Lender, any Affiliate of any
Lender and any Related Fund (any two or more Related Funds being treated as a
single Eligible Assignee for all purposes hereof), and (ii) any commercial bank,
financial institution, insurance company, investment or mutual fund or other
entity that is an "accredited investor" (as defined in Regulation D under the
Securities Act) and which extends credit or buys loans as one of its businesses;
provided, no Affiliate of Company shall be an Eligible Assignee.
--------
"Eligible Net PP&E" means, at any date of determination, an amount
equal to (i) the aggregate cost of Company's and its Restricted Subsidiaries'
assets located on a Permitted IBX Facility that may properly be classified, in
conformity with GAAP, as property, plant and equipment reflected on the
consolidated balance sheet of Company and its Restricted Subsidiaries, which in
the case of any such property, plant and equipment located at Permitted IBX
Facilities that are leased by Company or its Restricted Subsidiaries, is located
at Permitted IBX Facilities with respect to which (x) a Credit Party has taken
all such actions and executed and delivered, or caused to be executed and
delivered, all such mortgages, documents, instruments, agreements, opinions and
certificates described in Sections 3.1(e), 3.1(f), 3.1(g), and 3.1(h) or
otherwise required hereunder to create in favor of Collateral Agent, for the
benefit of the Secured Parties, the valid and perfected First Priority Liens
referred to in such sections or (y) the underlying leasehold interest is held by
OpCo or other Restricted Subsidiary and the Collateral Agent for the benefit of
the Secured Parties has a First Priority security interest in all of the Capital
Stock of OpCo or such other Restricted Subsidiary, as applicable, less (ii) the
sum of (x) to the extent not otherwise deducted in determining Eligible Net PP&E
the accumulated depreciation and any write-down or write-off with respect to
such property, plant and equipment, as determined in conformity with GAAP, (y)
to the extent not otherwise deducted in determining Eligible Net PP&E, the
aggregate cost of any assets otherwise included in Eligible Net PP&E subject to
security interests securing Permitted Equipment Financing, less the accumulated
depreciation and any write-down or write-off with respect to the assets
referenced in this clause (y), as determined in conformity with GAAP, and (z)
that portion of the aggregate cost of any assets otherwise included in Eligible
Net PP&E to the extent attributable to issuance by Company of warrants to
purchase Capital Stock of Company.
"Employee Benefit Plan" means any "employee benefit plan" as defined
in Section 3(3) of ERISA which is or was sponsored, maintained or contributed to
by, or required to be contributed by, Company, any of its Subsidiaries or any of
their respective ERISA Affiliates.
"Environmental Claim" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any Governmental Authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law; (ii) in connection with any
Hazardous Material or any actual or alleged Hazardous Materials Activity; or
(iii) in connection with any actual or alleged damage, injury, threat or harm to
health, safety, natural resources or the environment.
"Environmental Laws" means any and all current or future foreign or
domestic, federal or state (or any subdivision of either of them), statutes,
ordinances, orders, rules, regulations, guidance documents, judgments,
Governmental Authorizations, or any other requirements of Governmental
Authorities relating to (i) environmental matters, including those
13
relating to any Hazardous Materials Activity; (ii) the generation, use, storage,
transportation or disposal of Hazardous Materials; or (iii) occupational safety
and health, industrial hygiene, land use or the protection of human, plant or
animal health or welfare, in any manner applicable to Company or any of its
Subsidiaries or any Facility.
"Equity Interests" means Capital Stock of Company and all warrants,
options or other rights to acquire Capital Stock of Company (but excluding any
debt security that is convertible into, or exchangeable for, Capital Stock of
Company).
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor thereto.
"ERISA Affiliate" means, as applied to any Person, (i) any
corporation which is a member of a controlled group of corporations within the
meaning of Section 414(b) of the Internal Revenue Code of which that Person is a
member; (ii) any trade or business (whether or not incorporated) which is a
member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which that Person is a
member; and (iii) any member of an affiliated service group within the meaning
of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any
corporation described in clause (i) above or any trade or business described in
clause (ii) above is a member. Any former ERISA Affiliate of Company or any of
its Subsidiaries shall continue to be considered an ERISA Affiliate of Company
or any such Subsidiary within the meaning of this definition with respect to the
period such entity was an ERISA Affiliate of Company or such Subsidiary and with
respect to liabilities arising after such period for which Company or such
Subsidiary could be liable under the Internal Revenue Code or ERISA.
"ERISA Event" means (i) a "reportable event" within the meaning of
Section 4043 of ERISA and the regulations issued thereunder with respect to any
Pension Plan (excluding those for which the provision for 30-day notice to the
PBGC has been waived by regulation); (ii) the failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the
Internal Revenue Code) or the failure to make by its due date a required
installment under Section 412(m) of the Internal Revenue Code with respect to
any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan
pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such
plan in a distress termination described in Section 4041(c) of ERISA; (iv) the
withdrawal by Company, any of its Subsidiaries or any of their respective ERISA
Affiliates from any Pension Plan with two or more contributing sponsors or the
termination of any such Pension Plan resulting in liability pursuant to Section
4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan, or the occurrence of any event or condition which
might constitute grounds under ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (vi) the imposition of liability
on Company, any of its Subsidiaries or any of their respective ERISA Affiliates
pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of
Section 4212(c) of ERISA; (vii) the withdrawal of Company, any of its
Subsidiaries or any of their respective ERISA Affiliates in a complete or
partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from
any Multiemployer Plan if there is any potential liability therefor, or the
receipt by
14
Company, any of its Subsidiaries or any of their respective ERISA Affiliates of
notice from any Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or
has terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an
act or omission which could give rise to the imposition on Company, any of its
Subsidiaries or any of their respective ERISA Affiliates of fines, penalties,
taxes or related charges under Chapter 43 of the Internal Revenue Code or under
Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of
any Employee Benefit Plan; (ix) the assertion of a material claim (other than
routine claims for benefits) against any Employee Benefit Plan other than a
Multiemployer Plan or the assets thereof, or against Company, any of its
Subsidiaries or any of their respective ERISA Affiliates in connection with any
Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice
of the failure of any Pension Plan (or any other Employee Benefit Plan intended
to be qualified under Section 401(a) of the Internal Revenue Code) to qualify
under Section 401(a) of the Internal Revenue Code, or the failure of any trust
forming part of any Pension Plan to qualify for exemption from taxation under
Section 501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien
pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan.
"Eurodollar Rate Loan" means a Loan bearing interest at a rate
determined by reference to the Adjusted Eurodollar Rate.
"Event of Default" means each of the conditions or events set forth
in Section 8.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
"Existing Indebtedness" means the Indebtedness listed on Schedule
6.1.
"Existing Credit Agreement" means that certain Credit and Guaranty
Agreement dated as of December 20, 2000 by and among the Credit Parties, Agents
and Lenders, as amended prior to the Effective Date.
"Existing Loans" means Loans outstanding under the Existing Credit
Agreement immediately prior to satisfaction and/or waiver of the conditions to
effectiveness set forth in Section 3.1 of this Agreement.
"Facility" means any real property (including all buildings,
fixtures or other improvements located thereon) now, hereafter or heretofore
owned, leased, operated or used by Company or any of its Subsidiaries or any of
their respective predecessors or Affiliates.
"Fair Share" as defined in Section 7.2.
"Fair Share Contribution Amount" as defined in Section 7.2.
"Fair Share Shortfall" as defined in Section 7.2.
15
"Federal Funds Effective Rate" means for any day, the rate per annum
(expressed, as a decimal, rounded upwards, if necessary, to the next higher
1/100 of 1%) equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided, (i) if such day
is not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (ii) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate charged to Administrative Agent, in its capacity as a Lender, on
such day on such transactions as determined by Administrative Agent.
"Financial Officer Certification" means, with respect to the
financial statements for which such certification is required, the certification
of the chief financial officer of Company that such financial statements fairly
present, in all material respects, the financial condition of Company and its
Subsidiaries as at the dates indicated and the results of their operations and
their cash flows for the periods indicated, subject to changes resulting from
audit and normal year-end adjustments.
"Financial Plan" as defined in Section 5.1(k).
"First Priority" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that such Lien is
the only Lien to which such Collateral is subject, other than Permitted Liens.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Company and its Subsidiaries
ending on December 31st of each calendar year.
"Flood Hazard Property" means any Real Estate Asset subject to a
mortgage in favor of the Collateral Agent, for the benefit of the Secured
Parties, and located in an area designated by the Federal Emergency Management
Agency as having special flood or mud slide hazards.
"Foreign Subsidiary" means, with respect to any Person, any
Subsidiary that is not a Domestic Subsidiary.
"Founders" means Benchmark Capital Partners II, L.P., Cisco Systems,
Inc., Microsoft Corporation, News Corp., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇▇ and
their respective Related Persons.
"Funding Date" as defined in the preamble.
"Funding Default" as defined in Section 2.21.
"Funding Guarantors" as defined in Section 7.2.
"Funding Notice" means a notice substantially in the form of Exhibit
A-1.
16
"GAAP" means, subject to the limitations on the application thereof
set forth in ▇▇▇▇▇▇▇ ▇.▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ generally accepted accounting principles
in effect as of the date of determination thereof.
"Governmental Acts" means any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
Governmental Authority.
"Governmental Authority" means any federal, state, municipal,
national or other government, governmental department, commission, board,
bureau, court, agency or instrumentality or political subdivision thereof or any
entity or officer exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to any government or any court, in
each case whether associated with a state of the United States, the United
States, or a foreign entity or government.
"Governmental Authorization" means any permit, license,
authorization, plan, directive, consent order or consent decree of or from any
Governmental Authority.
"Grantor" as defined in the Pledge and Security Agreement.
"GSCP" as defined in the preamble hereto.
"Guaranteed Obligations" as defined in Section 7.1.
"Guarantor" means Company and each Domestic Subsidiary of Company
that is a Restricted Subsidiary other than OpCo.
"Guarantor Subsidiary" means each Guarantor other than Company.
"Guaranty" means the guaranty of each Guarantor set forth in Section
7.
"Hazardous Materials" means any chemical, material or substance,
exposure to which is prohibited, limited or regulated by any Governmental
Authority or which may or could pose a hazard to the health and safety of the
owners, occupants or any Persons in the vicinity of any Facility or to the
indoor or outdoor environment.
"Hazardous Materials Activity" means any past, current, proposed or
threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"Hedge Agreement" means an Interest Rate Agreement or a Currency
Agreement entered into with a Lender Counterparty in order to satisfy the
requirements of this Agreement or otherwise in the ordinary course of Company's
or any of its Subsidiaries' businesses and not for speculative purposes.
17
"Highest Lawful Rate" means the maximum lawful interest rate, if
any, that at any time or from time to time may be contracted for, charged, or
received under the laws applicable to any Lender which are presently 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 nonusurious interest rate than
applicable laws now allow.
"IBX Facilities" means Internet Business Exchange facilities,
including, without limitation, the Permitted IBX Facilities, which are designed,
developed (or acquired by) and operated by Company or one of its Restricted
Subsidiaries for the purpose of providing Internet access, colocation services,
telecommunications access, mechanical and power systems and operations and
customer service and support and is either owned in fee by Company or one of its
Restricted Subsidiaries or operated under a distinct long term lease agreement
between Company or one of its Restricted Subsidiaries and a landlord.
"Increased-Cost Lender" as defined in Section 2.22.
"Indebtedness", as applied to any Person, means, without
duplication, (i) all indebtedness for borrowed money; (ii) that portion of
obligations with respect to Capital Leases that is properly classified as a
liability on a balance sheet in conformity with GAAP; (iii) notes payable and
drafts accepted representing extensions of credit whether or not representing
obligations for borrowed money; (iv) any obligation owed for all or any part of
the deferred purchase price of property or services (excluding any such
obligations incurred under ERISA and ordinary course trade payables), which
purchase price is (a) due more than six months from the date of incurrence of
the obligation in respect thereof or (b) evidenced by a note or similar written
instrument; (v) all indebtedness secured by any Lien on any property or asset
owned or held by that Person regardless of whether the indebtedness secured
thereby shall have been assumed by that Person or is nonrecourse to the credit
of that Person; (vi) the greater of the face amount of any letter of credit
issued for the account of that Person or as to which that Person is otherwise
liable for reimbursement of drawings and the maximum amount for which such
Person may otherwise be liable under such letters of credit; (vii) 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 another; (viii) any obligation of
such Person the primary purpose or intent of which is to provide assurance to an
obligee that the obligation of the obligor thereof will be paid or discharged,
or any agreement relating thereto will be complied with, or the holders thereof
will be protected (in whole or in part) against loss in respect thereof; (ix)
any liability of such Person for the obligation of another through any agreement
(contingent or otherwise) (a) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for the payment or
discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise) or (b) to maintain the solvency
or any balance sheet item, level of income or financial condition of another if,
in the case of any agreement described under subclauses (a) or (b) of this
clause (ix), the primary purpose or intent thereof is as described in clause
(viii) above; and (x) obligations of such Person in respect of any exchange
traded or over the counter derivative transaction, including, without
limitation, any Interest Rate Agreement or Currency Agreement, whether entered
into for hedging or speculative purposes; provided, in no event shall
--------
obligations under any Interest Rate Agreement or any Currency Agreement be
deemed "Indebted ness" for any purpose under Sections 6.6 or 6.7, as applicable.
18
"Indemnified Liabilities" means, collectively, any and all
liabilities, obligations, losses, damages (including natural resource damages),
penalties, actions, judgments, suits, claims (including Environmental Claims),
costs (including the costs of any investigation, study, sampling, testing,
abatement, cleanup, removal, remediation or other response action necessary to
remove, remediate, clean up or ▇▇▇▇▇ any Hazardous Materials Activity), expenses
and disbursements of any kind or nature whatsoever (including the reasonable
fees and disbursements of counsel for Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such indemnities shall be designated as a party
or a potential party thereto, and any fees or expenses incurred by indemnities
in enforcing this indemnity), whether direct, indirect or consequential and
whether based on any federal, state or foreign laws, statutes, rules or
regulations (including securities and commercial laws, statutes, rules or
regulations and Environmental Laws), on common law or equitable cause or on
contract or otherwise, that may be imposed on, incurred by, or asserted against
any such indemnities, in any manner relating to or arising out of (i) this
Agreement (which for the avoidance of doubt shall include the Existing Credit
Agreement) or the other Credit Documents or the transactions contemplated hereby
or thereby (including (i) all prior negotiations and prior acts of Lenders in
connection therewith and (ii) Lenders' agreement to make Credit Extensions or
the use or intended use of the proceeds thereof, or any enforcement of any of
the Credit Documents (including any sale of, collection from, or other
realization upon any of the Collateral or the enforcement of the Guaranty));
(ii) the statements contained in the commitment letter delivered by any Lender
to Company with respect to the transactions contemplated by this Agreement; or
(iii) any Environmental Claim or any Hazardous Materials Activity relating to or
arising from, directly or indirectly, any past or present activity, operation,
land ownership, or practice of Company or any of its Subsidiaries.
"Indemnitees" as defined in Section 10.3.
"Intellectual Property" as defined in the Pledge and Security
Agreement.
"Intellectual Property Collateral" means all of the Intellectual
Property subject to the Lien of the Pledge and Security Agreement.
"Interest Coverage Ratio" means the ratio, as of the last day of any
Fiscal Quarter, of (i) Annualized Consolidated EBITDA for the Fiscal Quarter
then ended, to (ii) Consolidated Cash Interest Expense for the four-Fiscal
Quarter period then ended.
"Interest Payment Date" means with respect to (i) any Base Rate
Loan, the last day of each month commencing on the first such date to occur
after the Effective Date, the date of repayment or prepayment of any portion of
such Loan and the Maturity Date; and (ii) any Eurodollar Rate Loan, the last day
of each month, the last day of each Interest Period applicable to such Loan, the
date of repayment or prepayment of any portion of such Loan and the Maturity
Date.
"Interest Period" means, in connection with a Eurodollar Rate Loan,
an interest period of one, two, or three months, as selected by the Borrower in
the applicable Funding Notice or Conversion/Continuation Notice, (i) initially,
commencing on the Credit Date or Conversion/Continuation Date thereof, as the
case may be; and (ii) thereafter, commencing on
19
the day on which the immediately preceding Interest Period expires; provided,
(a) if an Interest Period would otherwise expire on a day that is not a Business
Day, such Interest Period shall expire on the next succeeding Business Day
unless no further Business Day occurs in such month, in which case such Interest
Period shall expire on the immediately preceding Business Day; (b) any Interest
Period that begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall, subject to clause (c), of this definition, end
on the last Business Day of a calendar month; and (c) no Interest Period with
respect to any portion of any Tranche A Term Loans, or Tranche B Term Loans, as
the case may be, shall extend beyond the Maturity Date.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement, interest rate
hedging agreement or other similar agreement or arrangement, each of which is
for the purpose of hedging the interest rate exposure associated with Company's
and its Restricted Subsidiaries' operations.
"Interest Rate Determination Date" means, with respect to any
Interest Period, the date that is two (2) Business Days prior to the first day
of such Interest Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, and any successor
statute.
"International Holdings" means Equinix Europe, Inc., a Delaware
corporation (and/or one or more additional Delaware corporations wholly-owned by
Company) that owns, directly or indirectly, all (other than director's
qualifying shares) of the Capital Stock of all Foreign Subsidiaries that are
Unrestricted Subsidiaries.
"Investment" means (i) any direct or indirect purchase or other
acquisition by Company or any of its Restricted Subsidiaries of, or of a
beneficial interest in, any of the Securities of any other Person (other than by
Company or any wholly-owned Guarantor Subsidiary with respect to any
wholly-owned Guarantor Subsidiary); (ii) any direct or indirect redemption,
retirement, purchase or other acquisition for value, by any Restricted
Subsidiary of Company from any Person (other than Company or any wholly-owned
Guarantor Subsidiary), of any Capital Stock of such Restricted Subsidiary; and
(iii) any direct or indirect loan, advance (other than advances to employees for
moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital contribution by
Company or any of its Restricted Subsidiaries to any other Person (other than by
Company or any wholly-owned Guarantor Subsidiary to any wholly-owned Guarantor
Subsidiary), including all indebtedness and accounts receivable from that other
Person that are not current assets or did not arise from sales to that other
Person in the ordinary course of business. The amount of any Investment shall be
the original cost of such Investment plus the cost of all additions thereto,
without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment.
"Investment Related Property" as defined in the Pledge and Security
Agreement.
"Joint Lead Arrangers" as defined in the preamble hereto.
20
"Joint Book Runners" as defined in the preamble hereto.
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership, limited liability company, or
other legal form; provided, in no event shall any corporate Subsidiary of any
Person be considered to be a Joint Venture to which such Person is a party.
"Landlord Agreement" means an agreement duly executed by the
landlord of any Leasehold Property substantially in the form of Exhibit K with
such amendments or modifications as may be approved by Collateral Agent and its
counsel.
"Leasehold Property" means any leasehold interest (other than San
▇▇▇▇ Ground Lease) of Company or any of its Restricted Subsidiaries as lessee
under any lease of real property, other than any such leasehold interest
designated from time to time by Collateral Agent in its sole discretion as not
being required to be included in the Collateral.
"Lender" means each financial institution that became a Lender under
this Agreement as of the Closing Date, together with each such institution's
successors and permitted assigns.
"Lender Counterparty" means each Lender or any Affiliate of a Lender
Counterparty to a Hedge Agreement, including, without limitation, each such
Affiliate that enters into a joinder agreement with the Collateral Agent.
"Lien" means (i) any lien, claim, mortgage, pledge, assignment,
security interest, charge or encumbrance of any kind (including any agreement to
give any of the foregoing, any conditional sale or other title retention
agreement, and any lease in the nature thereof) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing and
(ii) in the case of Securities, any purchase option, call or similar right of a
third party with respect to such Securities.
"Loan" means (y) prior to the Effective Date, any Term Loan, Delayed
Draw Term Loan, Revolving Loan or Purchase Money Loan outstanding pursuant to
the Existing Credit Agreement and (z) on and after the Effective Date, a Tranche
A Term Loan or a Tranche B Term Loan.
"Margin Stock" as defined in Regulation T, U or X of the Board of
Governors of the Federal Reserve System as in effect from time to time.
"Material Adverse Effect" means a material adverse effect on (i) the
business, operations, properties, assets, condition (financial or otherwise) or
prospects (with respect to prospects only, based upon the Effective Date
Financial Plan) of Company and its Restricted Subsidiaries taken as a whole;
(ii) the ability of any Credit Party to fully and timely perform the
Obligations; (iii) the legality, validity, binding effect or enforceability
against a Credit Party of a Credit Document to which it is a party; (iv) the
rights, remedies and benefits available to, or conferred upon, any Agent and any
Lender under any Credit Document; or (v) the Collateral Agent's Liens, on behalf
of Secured Parties, on the Collateral or the priority of such Liens.
21
"Material Contract" means any contract or other arrangement to which
Company or any of its Restricted Subsidiaries is a party (other than the Credit
Documents) for which breach, nonperformance, cancellation or failure to renew
could reasonably be expected to have a Material Adverse Effect including,
without limitation, those contracts listed on Schedule 4.17(a).
----------------
"Material Real Estate Asset" means (i) (a) any fee-owned Real Estate
Asset located in the United States or Canada having a fair market value in
excess of $250,000 as of the date of the acquisition thereof, (b) any Leasehold
Property which is a IBX Facility to the extent the failure to comply with
Section 5.10 with respect thereto would cause the Collateral Agent to have at
any time a perfected First Priority Lien on less than all of the IBX Facilities
listed on Schedule 3.1(e)(B) of all Leasehold Properties which are IBX
------------------
Facilities and (c) all Leasehold Properties which are not IBX Facilities (other
than the San ▇▇▇▇ Ground Lease and existing headquarter buildings) other than
those with respect to which the aggregate payments under the term of the lease
are less than $100,000 per annum or (ii) any Real Estate Asset (other than the
San ▇▇▇▇ Ground Lease and existing headquarters) located in the United States or
Canada that the Requisite Lenders have determined is material to the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of Company or any Restricted Subsidiary thereof taken as a whole.
"Maturity Date" means the earlier of (i) December 15, 2005 and (ii)
the date on which Loans shall become due and payable, whether by acceleration or
otherwise.
"Moody's" means ▇▇▇▇▇'▇ Investor Services, Inc.
"Mortgage" means, collectively, the Existing Mortgages, as modified
by the Effective Date Mortgage Modifications, and the Effective Date Mortgages,
together with any amendments, restatements, supplements or other modifications
entered into from time to time in accordance herewith.
"Multiemployer Plan" means any Employee Benefit Plan which is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"NAIC" means The National Association of Insurance Commissioners,
and any successor thereto.
"Narrative Report" means, with respect to the financial statements
for which such narrative report is required, a narrative report describing the
operations of Company and its Restricted Subsidiaries in the form prepared for
presentation to senior management thereof for the Fiscal Quarter or Fiscal Year
and for the period from the beginning of the then current Fiscal Year to the end
of such period to which such financial statements relate.
"Net Asset Sale Proceeds" means, with respect to any Asset Sale, an
amount equal to: (i) Cash payments (including any Cash received by way of
deferred payment pursuant to, or by monetization of, a note receivable or as a
result of the release of any amounts subject to any reserve described in clause
(c) below or otherwise, but only as and when so received) received by Company or
any of its Restricted Subsidiaries from such Asset Sale, minus (ii) any bona
fide direct costs incurred in connection with such Asset Sale, including (a)
income or gains
22
taxes payable by the seller as a result of any gain recognized in connection
with such Asset Sale, (b) payment of the outstanding principal amount of,
premium or penalty, if any, and interest on any Indebtedness (other than the
Loans) that is secured by a Lien on the stock or assets in question and that is
required to be repaid under the terms thereof as a result of such Asset Sale,
(c) attorneys' fees, accountants' fees, investment banking fees and other
customary costs, fees and expenses and commissions actually incurred in
connection therewith, and (d) a reasonable reserve for any indemnification
payments (fixed or contingent) attributable to seller's indemnities and
representations and warranties to purchaser in respect of such Asset Sale
undertaken by Company or any of its Restricted Subsidiaries in connection with
such Asset Sale.
"Net Insurance/Condemnation Proceeds" means an amount equal to: (i)
any Cash payments or proceeds received by Company or any of its Restricted
Subsidiaries (a) under any casualty insurance policy in respect of a covered
loss thereunder or (b) as a result of the taking of any assets of Company or any
of its Restricted Subsidiaries by any Person pursuant to the power of eminent
domain, condemnation or otherwise, or pursuant to a sale of any such assets to a
purchaser with such power under threat of such a taking, minus (ii) (a) any
-----
actual and reasonable costs incurred by Company or any of its Restricted
Subsidiaries in connection with the adjustment or settlement of any claims of
Company or such Subsidiary in respect thereof, and (b) any bona fide direct
costs incurred in connection with any sale of such assets as referred to in
clause (i)(b) of this definition, including (1) income or gains taxes payable by
the seller as a result of any gain recognized in connection with the foregoing,
(2) payment of the outstanding principal amount of, premium or penalty, if any,
and interest on any Indebtedness (other than the Loans) that is secured by a
Lien on the stock or assets in question and that is required to be repaid under
the terms thereof as a result of any sale of such assets, (3) attorneys' fees,
accountants' fees, investment banking fees and other customary costs, fees and
expenses and commissions actually incurred in connection therewith, and (4) a
reasonable reserve for any indemnification payments (fixed or contingent)
attributable to seller's indemnities and representations and warranties to
purchaser in respect of such asset sale undertaken by Company or any of its
Restricted Subsidiaries in connection with such asset sale.
"Net Revenues" means, for any period, the net revenues of Company
and its Restricted Subsidiaries on a consolidated basis for such period taken as
a single accounting period determined in conformity with GAAP (it being
understood that, in any event such net revenue shall be net of sales charges and
discounts).
"Non-Consenting Lender" as defined in Section 2.22.
"Non-US Lender" as defined in Section 2.19(c).
"Note" means a Tranche A Term Loan Note, or a Tranche B Term Loan
Note.
"Notice" means a Funding Notice, an Issuance Notice, or a
Conversion/Continuation Notice.
"Obligations" means all obligations of every nature of each Credit
Party from time to time owed to the Agents, the Lenders or any of them or their
respective Affiliates (including, without limitation, all former Agents, Lenders
or Lender Counterparties), under any
23
Credit Document (including, without limitation, with respect to a Hedge
Agreement, net obligations owed thereunder to any person who was a Lender or an
Affiliate of a Lender at the time such Hedge Agreement was entered into and,
with respect to any period prior to the Effective Date, any obligations under
the Existing Credit Agreement), whether for principal, interest (including
interest which, but for the filing of a petition in bankruptcy with respect to
such Credit Party, would have accrued on any Obligation, whether or not a claim
is allowed against such Credit Party for such interest in the related bankruptcy
proceeding), payments for early termination of Hedge Agreements, fees, expenses,
indemnification or otherwise.
"Obligee Guarantor" as defined in Section 7.7.
"Organizational Documents" means (i) with respect to any
corporation, its certificate or articles of incorporation, as amended, and its
by-laws, as amended, (ii) with respect to any limited partnership, its
certificate of limited partnership, as amended, and its partnership agreement,
as amended, (iii) with respect to any general partnership, its partnership
agreement, as amended, and (iv) with respect to any limited liability company,
its certificate of formation or articles of organization, as amended, and its
operating agreement, as amended. In the event any term or condition of this
Agreement or any other Credit Document requires any Organizational Document to
be certified by a secretary of state or similar governmental official, the
reference to any such "Organizational Document" shall only be to a document of a
type customarily certified by such governmental official.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"Permitted Acquisition" means any acquisition whether by purchase,
merger or otherwise, of all or substantially all of the assets of, all of the
Capital Stock of, or a business line or unit or a division of, any Person;
provided,
--------
(i) immediately prior to, and after giving effect thereto,
no Default or Event of Default shall have occurred and be continuing or
would result therefrom;
(ii) all transactions in connection therewith shall be
consummated in accordance with all applicable laws and in conformity
with all applicable Governmental Authorizations;
(iii) in the case of the acquisition of Capital Stock, all of
the Capital Stock (except for any such Securities in the nature of
directors' qualifying shares required pursuant to applicable law)
issued by such Person or any newly formed Restricted Subsidiary of
Company in connection with such acquisition shall be owned by Company
or a Guarantor Subsidiary thereof, and Company shall have taken, or
caused to be taken, as of the date such Person becomes a Subsidiary of
Company, each of the actions set forth in Sections 5.9 and/or 5.10, as
applicable;
24
(iv) whether the consideration paid in such acquisition is
cash or stock, Company shall deliver to Agents and Joint Lead Arrangers
a Financial Officer's Certificate demonstrating (to the reasonable
satisfaction of Joint Lead Arrangers and Agents) that Company and its
Restricted Subsidiaries shall be in compliance, as of the first day of
the most recently ended Fiscal Quarter and after giving pro forma
effect on a going-forward basis through December 15, 2005 to such
acquisition with the covenants contained in this Agreement;
(v) Company shall have delivered to the Joint Lead Arrangers
and Agents (A) at least ten (10) Business Days prior to such proposed
acquisition, a Compliance Certificate evidencing compliance with
Sections 6.6, 6.7 or 6.8, as applicable, as required under clause (iv)
above, together with all relevant financial information with respect to
such acquired assets, including, without limitation, the aggregate
consideration for such acquisition and any other information required
to demonstrate compliance with Sections 6.6, 6.7 or 6.8, as applicable;
(vi) any Person or assets or division as acquired in
accordance herewith shall be in the same business or lines of business
in which Company and/or its Subsidiaries are engaged as of the Closing
Date, a Complementary Business, an IBX Facility or such other lines of
business as may be consented to by Requisite Lenders;
(vii) any Person or assets or division as acquired in
accordance herewith shall be acquired by OpCo; and
(viii) Company shall have satisfied the other requirements set
forth in Section 6.9(d).
"Permitted Equipment Financing" means (A) the secured equipment
financing facilities listed, and designated as such, on Schedule 6.1 as of
Effective Date and (B) one or more purchase money, vendor or other equipment
financing facilities or leases (i) in an aggregate principal amount not in
excess of $15,000,000 outstanding at any time, (ii) pursuant to which Company
may be advanced funds principally to purchase or lease IBX Facility equipment or
headquarters equipment or services and to pay the costs of the engineering,
construction, installation, importation, development and improvement of such
equipment incurred after the Effective Date, (iii) which may be secured only by
the assets being financed directly with the proceeds of such financing and with
respect to which no Restricted Subsidiary of Company is obligated (it being
understood that equipment acquired no earlier than ninety (90) days prior to the
incurrence of such Permitted Equipment Financing may be determined to be
financed with the proceeds thereof); provided, such equipment was acquired and
--------
installed after the Effective Date and (iv) with respect to which no scheduled
repayments or prepayments of principal are required; provided, that with respect
--------
to no more than $5,000,000 aggregate principal amount of Permitted Equipment
Financing (excluding those Permitted Equipment Financings listed on Schedule
6.1), equal monthly repayments of principal may be made for a three year period
commencing no earlier than June 30, 2002.
"Permitted IBX Facilities" means those IBX Facilities listed on
Schedule 1.1(a) or acquired after the Effective Date pursuant to a Permitted
Acquisition with respect to which
25
development has commenced on or before the Effective Date and IBX Facilities, if
any, acquired pursuant to a Permitted Acquisition (i) owned or leased by Company
on the Effective Date or (ii) owned or leased by OpCo or a wholly-owned Domestic
Subsidiary of OpCo on or after the Effective Date, in each case having
substantially those characteristics contemplated in the Effective Date Financial
Plan.
"Permitted Liens" means each of the Liens permitted pursuant to
Section 6.2.
"Permitted Unsecured Company Debt" means Indebtedness of Company
that (i) is unsecured, (ii) is not guaranteed by any Person, (iii) is used
solely to provide a portion of the consideration paid in connection with a
Permitted Acquisition, (iv) is no less favorable for Company or the Lenders than
the Senior Notes in any material respect (as determined by the Agents and Joint
Lead Arrangers), (v) is subordinated in right of payment in full of the
Obligations pursuant to the terms reasonably acceptable to the Agents and Joint
Lead Arrangers, (vi) any interest payable thereon shall accrue and be payable
in-kind until after the Maturity Date and (vii) does not provide for any
scheduled prepayment or repayment of all or any portion of the principal thereof
until after the Maturity Date.
"Person" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and Governmental Authorities.
"Pledge and Security Agreement" means the Amended and Restated
Pledge and Security Agreements in the form of Exhibit I as it may be amended,
supplemented or otherwise modified from time to time by Company, the Borrower
and/or each Guarantor.
"Prime Rate" means the rate of interest per annum that the
Administrative Agent announces from time to time as its prime lending rate, as
in effect from time to time. The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any customer.
The Administrative Agent or any other Lender may make commercial loans or other
loans at rates of interest at, above or below the Prime Rate.
"Principal Office" means, the Administrative Agent's "Principal
Office" as set forth on Appendix B, or such other office as Administrative Agent
may from time to time designate in writing to the Borrower and each Lender.
"Pro Forma Consolidated Debt Service" means, as of any date of
determination, the sum, without duplication, of (i) Consolidated Cash Interest
Expense and (ii) all scheduled amortization (including any payment or prepayment
of principal of, premium, if any, or interest on, or redemption, purchase,
retirement, defeasance (including in-substance or legal defeasance), sinking
fund or similar payment) in respect of Indebtedness, in each case payable by
Company and its Restricted Subsidiaries during the immediately succeeding four
Fiscal Quarters assuming, for purposes of calculating Consolidated Cash Interest
Expense for any such succeeding four Fiscal Quarter period, Indebtedness
outstanding as of the date of such calculation shall remain outstanding during
such four Fiscal Quarter period (except to the extent
26
of any scheduled amortization, redemption, retirement or similar payment
scheduled during such four Fiscal Quarter period) and that the average interest
rate applicable to outstanding Indebtedness of the Credit Parties as of the date
of such calculation applies with respect to Indebtedness outstanding during such
four Fiscal Quarter period.
"Pro Forma Debt Service Coverage Ratio" means the ratio as of the
last day of any Fiscal Quarter of (i) Annualized Consolidated EBITDA for the
Fiscal Quarter then ended to (ii) Pro Forma Consolidated Debt Service, in each
case as set forth in the most recent Compliance Certificate delivered by Company
to Administrative Agent pursuant to Section 5.1(d).
"Pro Rata Share" means (i) with respect to all payments,
computations and other matters relating to the Tranche A Term Loan of any
Lender, the percentage obtained by dividing (x) the Tranche A Term Loan Exposure
of that Lender by (y) the aggregate Tranche A Term Loan Exposure of all Lenders;
(ii) with respect to all payments, computations and other matters relating to
the Tranche B Term Loans of any Lender, the percentage obtained by dividing (x)
the Tranche B Term Loan Exposure of that Lender by (y) the aggregate Tranche B
Term Loan Exposure of all Lenders; and (iii) for all other purposes with respect
to each Lender, the percentage obtained by dividing (x) the sum of the Tranche A
Term Loan Exposure of that Lender plus the Tranche B Loan Exposure of that
----
Lender by (y) the sum of the aggregate Tranche A Exposure of all Lenders plus
----
the sum of the aggregate Tranche B Term Loan Exposure of all Lenders, in any
such case as the applicable percentage may be adjusted by assignments permitted
pursuant to Section 10.6. The Pro Rata Share of each Lender as of the Effective
Date for purposes of each of clauses B(i) and (ii) of the preceding sentence is
set forth opposite the name of that Lender in Appendices A-2 and A-3,
respectively; provided, however, that with respect to any determinations during
-------- -------
any relevant period prior to the Effective Date, "Pro Rata Share" shall have the
meaning assigned to that term in the Existing Credit Agreement; and provided,
--------
further, that for purposes of determining payments, computations and other
-------
matters related to applicable interest rates, the foregoing determinations shall
give affect to the allocation of Tranche A Term Loans among the Sub-Tranches.
"Purchase Money Loans" has the meaning assigned to that term in the
Existing Credit Agreement.
"Qualifying Equity" means any Equity Interest other than
Disqualified Stock issued by Company after the Effective Date.
"Real Estate Asset" means, at any time of determination, any
interest (fee, leasehold or otherwise) then owned by any Credit Party in any
real property.
"Record Document" means, with respect to any Leasehold Property, (i)
the lease evidencing such Leasehold Property or a memorandum thereof, executed
and acknowledged by the owner of the affected real property, as lessor, or (ii)
if such Leasehold Property was acquired or subleased from the holder of a
Recorded Leasehold Interest, the applicable assignment or sublease document,
executed and acknowledged by such holder, in each case in form sufficient to
give such constructive notice upon recordation and otherwise in form reasonably
satisfactory to Collateral Agent.
27
"Recorded Leasehold Interest" means a Leasehold Property with
respect to which a Record Document has been recorded in all places necessary or
desirable, in Administrative Agent's reasonable judgment, to give constructive
notice of such Leasehold Property to third-party purchasers and encumbrancers of
the affected real property.
"Register" as defined in Section 2.5(b).
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Related Fund" means, with respect to any Lender that is an
investment fund, any other investment fund that invests in commercial loans and
that is managed or advised by the same investment advisor as such Lender or by
an Affiliate of such investment advisor.
"Related Person" means any Person who controls, is controlled by or
is under common control with a Founder; provided that for purposes of this
--------
definition "control" means the beneficial ownership of more than 50% of the
total voting power of a Person normally entitled to vote in the election of
directors, managers or trustees, as applicable, of a Person; provided, further,
-------- -------
that with respect to any natural Person, each member of such Person's immediate
family shall be deemed to be a Related Person of such Person.
"Release" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of any Hazardous Material into the indoor or outdoor
environment (including the abandonment or disposal of any barrels, containers or
other closed receptacles containing any Hazardous Material), including the
movement of any Hazardous Material through the air, soil, surface water or
groundwater.
"Replacement Lender" as defined in Section 2.22.
"Requisite Class Lenders" means, at any time of determination (i)
for the Class of Lenders having Tranche A Term Loan Exposure, Lenders having or
holding at least a majority of the sum of the aggregate Tranche A Term Loan
Exposure of all Lenders, and (ii) for the Class of Lenders having Tranche B Term
Loan Exposure, Lenders having or holding at least a majority of the sum of the
aggregate Tranche B Term Loan Exposure of all Lenders.
"Requisite Lenders" means one or more Lenders having or holding
Tranche A Term Loan Exposure, and/or Tranche B Term Loan Exposure representing
more than 50% of the sum of (i) the aggregate Tranche A Term Loan Exposure of
all Lenders, and (ii) the aggregate Tranche B Exposure of all Lenders.
"Restricted Account" means an account maintained with one of the
Agents in which Collateral Agent has a perfected First Priority security
interest for the benefit of the Secured Parties, which by its terms provides
among other things that all Cash and Cash Equivalents deposited therein may not
be released therefrom (other than with the consent of Collateral Agent or
Requisite Lenders) until such time as the EBITDA Requirement has been satisfied.
28
"Restricted Junior Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
of Company or OpCo now or hereafter outstanding, except a dividend payable
solely in shares of that class of stock to the holders of that class; (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of stock
of Company now or hereafter outstanding; except to the extent payable in
exchange for shares of Capital Stock of Company, (iii) any payment made to
retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of stock of Company or OpCo now or
hereafter outstanding; except to the extent paid with shares of Capital Stock of
Company or OpCo or warrants, options or other rights to acquire any such shares,
and (iv) any payment or prepayment of principal of, premium, if any, or interest
on, or redemption, purchase, retirement, defeasance (including in-substance or
legal defeasance), sinking fund or similar payment with respect to, the Senior
Notes and any Permitted Unsecured Company Debt, or any Permitted Equipment
Financing; provided that Restricted Junior Payments shall not include (y) cash
--------
dividends made on preferred stock of Company issued after the Closing Date to
the extent that such dividends are only required to be paid and are only paid
from the proceeds of the issuance of such preferred stock escrowed for such
purpose and (z) retirement of Senior Notes pursuant to an exchange of Senior
Notes for Qualifying Equity of Company which does not involve or require any
cash payment or pledge of any assets of the Company or its Subsidiaries (other
than the payment of reasonable fees and expenses to professionals for services
rendered in connection therewith).
"Restricted Subsidiaries" means all direct or indirect subsidiaries
of Company other than Unrestricted Subsidiaries.
"Revolving Loans" has the meaning assigned to that term in the
Existing Credit Agreement.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw Hill Corporation.
"San ▇▇▇▇ Ground Lease" means the Ground Lease by and between iStar
San ▇▇▇▇, LLC, as Lessor, and Company, as Lessee, dated June 21, 2000 as amended
or restated from time to time but not, in any event, such that the amounts
payable with respect thereto exceed amounts payable with respect thereto as
contemplated by the Effective Date Financial Plan or otherwise materially
increase the obligations of Company thereunder.
"Secured Parties" as defined in the Pledge and Security Agreement.
"Securities" means any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
29
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
"Senior Leverage Ratio" means the ratio, as of the last day of any
Fiscal Quarter, of (i) Consolidated Senior Secured Debt as of such date to (ii)
Annualized Consolidated EBITDA.
"Senior Notes" means the 13% Senior Notes due 2007 issued by Company
in the aggregate principal amount of $200,000,000 pursuant to the Senior Notes
Indenture, as in effect on the Closing Date and as such notes may thereafter be
amended, restated, supplemented or otherwise modified from time to time to the
extent permitted under Section 6.16.
"Senior Notes Indenture" means the Senior Notes Indenture dated as
of December 1, 1999 between Company and State Street Bank and Trust Company of
California, N.A., as trustee, pursuant to which the Senior Notes have been
issued, as in effect on the Closing Date and as such indenture may thereafter be
amended, restated, supplemented or otherwise modified from time to time to the
extent permitted under Section 6.16.
"Solvent" means, with respect to any Person, that as of the date of
determination both (i) (a) the sum of such Person's debt (including contingent
liabilities) does not exceed all of its property, at a fair valuation; (b) the
present fair saleable value of the property of such Person is not less than the
amount that will be required to pay the probable liabilities on such Person's
then existing debts as they become absolute and matured; (c) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (d) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (ii) such Person is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability (irrespective of whether such contingent liabilities
meet the criteria for accrual under Statement of Financial Accounting Standard
No. 5).
"Stage 1" means the period from the Closing Date to and including
June 30, 2003.
"Stage 2" means the period from July 1, 2003 through December 15,
2005.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof; provided, in determining the percentage of
30
ownership interests of any Person controlled by another Person, no ownership
interest in the nature of a "qualifying share" of the former Person shall be
deemed to be outstanding.
"Sub-Tranche" as defined in Section 2.1.
"Syndication Agent" as defined in the preamble hereto.
"Tax" means any present or future tax, levy, impost, duty,
assessment, charge, fee, deduction or withholding of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed, levied, collected,
withheld or assessed; provided, "Tax on the overall net income" of a Person
shall be construed as a reference to a tax imposed by the jurisdiction in which
that Person is organized or in which that Person's applicable principal office
(and/or, in the case of a Lender, its lending office) is located or in which
that Person (and/or, in the case of a Lender, its lending office) is deemed to
be doing business on all or part of the net income, profits or gains (whether
worldwide, or only insofar as such income, profits or gains are considered to
arise in or to relate to a particular jurisdiction, or otherwise) of that Person
(and/or, in the case of a Lender, its applicable lending office).
"Term Loan" has the meaning assigned to that term in the Existing
Credit Agreement.
"Term Loan Installments" as defined in Section 2.10.
"Term Loan Installment Date" as defined in Section 2.10.
"Terminated Lender" as defined in Section 2.22.
"Total Leverage Ratio" means the ratio as of the last day of any
Fiscal Quarter of (a) Consolidated Total Debt to (b) Annualized Consolidated
EBITDA.
"Total Utilization Exposure" means, as at any date of determination
the sum of the aggregate principal amount of all outstanding Loans.
"Tranche A Term Loan" means a Loan outstanding pursuant to Section
2.1(b) of this Agreement.
"Tranche A Term Loan Exposure" means, with respect to any Lender,
the outstanding principal amount of the Tranche A Term Loan of such Lender.
"Tranche A Term Loan Note" means a promissory note in the form of
Exhibit B-1, as it may be amended, restated, supplemented or otherwise modified
from time to time.
"Tranche B Term Loan" means a term loan outstanding pursuant to
Section 2.2 of this Agreement.
"Tranche B Term Loan Commitment" means the commitment of a Lender to
make or otherwise fund a Tranche B Term Loan to OpCo and "Tranche B Term Loan
31
Commitments" means such commitments of all Lenders in the aggregate. The amount
of each Lender's Tranche B Term Loan Commitment, if any, is set forth on
Appendix A-3 or in the applicable Assignment Agreement, subject to any
adjustment or reduction pursuant to the terms and conditions hereof. The
aggregate amount of the Tranche B Term Loan Commitments as of the Effective Date
is $25,000,000.
"Tranche B Term Loan Commitment Period" means the period commencing
on the Effective Date and ending on Tranche B Term Loan Commitment Termination
Date.
"Tranche B Term Loan Commitment Termination Date" means December 31,
2002.
"Tranche B Term Loan Exposure" means, with respect to any Lender,
(i) prior to the termination of the Tranche B Term Loan Commitments, that
Lender's Tranche B Term Loan Commitment and (ii) after termination of the
Tranche B Term Loan Commitment, the outstanding principal amount of the Tranche
B Term Loans of such Lender.
"Tranche B Term Loan Note" means a promissory note in the form of
Exhibit B-2, as it may be amended, restated, supplemented or otherwise modified
from time to time.
"Transaction Costs" means the fees, costs and expenses payable by
Company or any of Company's Subsidiaries on or before the Effective Date in
connection with the transactions contemplated by the Credit Documents.
"Type of Loan" means with respect to any of the Loans, a Base Rate
Loan or a Eurodollar Rate Loan.
"UCC" means the Uniform Commercial Code (or any similar or
equivalent legislation) as in effect in any applicable jurisdiction.
"UCC Questionnaire" means any certificate in form satisfactory to
the Collateral Agent and its counsel that provides information with respect to
any personal or mixed property of each Credit Party.
"Unadjusted Eurodollar Rate Component" means that component of the
interest costs to Company in respect of a Eurodollar Rate Loan that is based
upon the rate obtained pursuant to clause (i) of the definition of Adjusted
Eurodollar Rate.
"Unrestricted Subsidiaries" means each Subsidiary of Company
identified on Schedule 1.1(b).
1.2 Accounting Terms. Except as otherwise expressly provided herein,
all accounting terms not otherwise defined herein shall have the meanings
assigned to them in conformity with GAAP. Financial statements and other
information required to be delivered by Company to Lenders pursuant to Section
5.1(a), 5.1(b) and 5.1(c) shall be prepared in accordance with GAAP as in effect
at the time of such preparation (and delivered together with the reconciliation
statements provided for in Section 5.1(f)), if applicable). Subject to the
foregoing, calculations in connection with the definitions, covenants and other
provisions hereof
32
shall utilize accounting principles and policies in conformity with those used
to prepare the Historical Financial Statements.
1.3 Interpretation, etc. Any of the terms defined herein may, unless
the context otherwise requires, be used in the singular or the plural, depending
on the reference. References herein to any Section, Appendix, Schedule or
Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the
case may be, hereof unless otherwise specifically provided. The use herein of
the word "include" or "including", when following any general statement, term or
matter, shall not be construed to limit such statement, term or matter to the
specific items or matters set forth immediately following such word or to
similar items or matters, whether or not nonlimiting language (such as "without
limitation" or "but not limited to" or words of similar import) is used with
reference thereto, but rather shall be deemed to refer to all other items or
matters that fall within the broadest possible scope of such general statement,
term or matter.
SECTION 2. LOANS
2.1 Confirmation and Redesignation of Existing Loans as Tranche A
Term Loans.
(a) Each Credit Party acknowledges and confirms that,
immediately prior to giving effect to the prepayment made on the Effective Date
pursuant to Section 3.1, each Lender held Existing Loans in the respective
principal amounts set forth opposite their names on Schedule A-1 annexed hereto.
------------
Each Credit Party hereby represents, warrants, agrees, and covenants that there
are no defenses, rights of set off, claims or counterclaims against any Agent or
Lender in regard to its Obligations in respect of such Existing Loans with
respect to the Existing Credit Agreement or otherwise.
(b) Immediately following the prepayment of Existing Loans
contemplated by Section 3.1 the remaining aggregate principal balance of
Existing Loans shall be automatically redesignated pursuant to this Section
2.1(b) as Tranche A Term Loans and shall thereafter be treated as Tranche A Term
Loans made to Borrower for all purposes under this Agreement. Immediately after
giving effect to the foregoing, the aggregate principal amount of outstanding
Tranche A Term Loans shall be $100,000,000, and each Lender's Pro Rata Share of
the outstanding Tranche A Term Loans shall be as set forth on Schedule A-2. Any
Tranche A Term Loan repaid or prepaid may not be reborrowed. Subject to Sections
2.10, 2.11(a) and 2.12, all amounts owed hereunder with respect to the Tranche A
Term Loans shall be paid in full no later than the Maturity Date. For purposes
of calculating applicable interest rates and payments with respect to interest,
the Tranche A Term Loans shall be divided into three sub-tranches (each, a
"Sub-Tranche"): (i) Term Loans redesignated as Tranche A Term Loans shall be
designated as "Tranche A Terms Loan I", (ii) Delayed Draw Term Loans
redesignated as Tranche A Term Loans shall be designated as "Tranche A Terms
Loan II" and (iii) Revolving Loans redesignated as Tranche A Term Loans shall be
designated as "Tranche A Term Loans III".
33
2.2 Tranche B Term Loans.
(a) During the Tranche B Term Loan Commitment Period, subject
to the terms and conditions hereof, each Lender holding a Tranche B Term Loan
Commitment severally agrees to make Tranche B Term Loans to the Borrower in the
aggregate amount up to but not exceeding such Lender's Tranche B Term Loan
Commitment; provided that (x) after giving effect to the making of any Tranche B
Term Loans in no event shall the Total Utilization Exposure exceed the Borrowing
Base as set forth in a Borrowing Base Certificate delivered pursuant to Section
3.2(i) in connection with the making of such Loans and (y) unless and until the
EBITDA Requirement has been satisfied, no more than $5,000,000 aggregate
principal amount of Tranche B Term Loans may be borrowed. Subject to the
foregoing, Borrower may make one or more drawings on the Tranche B Term Loan
Commitments during the Tranche B Term Loan Commitment Period. Any amounts
borrowed under this Section 2.2 and subsequently repaid or prepaid may not be
reborrowed. Subject to Sections 2.10, 2.11(a) and 2.12, all amounts owed
hereunder with respect to the Tranche B Term Loans shall be paid in full no
later than the Maturity Date. Each Lender's Tranche B Term Loan Commitment shall
terminate immediately and without further action upon the funding in full of
such Lender's Tranche B Term Loan Commitment. The Tranche B Term Loan Commitment
shall expire immediately and without further action on the last day of the
Tranche B Term Loan Commitment Period. On and after the Effective Date, no
Lender shall have any obligation to make an extension of credit pursuant to this
Agreement other than as set forth in this Section 2.2(a).
(b) Borrowing Mechanics for Tranche B Term Loans.
(i) Tranche B Term Loans shall be made in minimum
amounts of $5,000,000.
(ii) On the Effective Date, Borrower shall deliver to
Administrative Agent a fully executed and delivered Effective Date
Certificate (which shall be deemed to be a Funding Notice with respect
to the Tranche B Term Loans for all purposes hereof); provided, that
--------
Tranche B Term Loans made by Lenders on the Effective Date initially
shall be made as Base Rate Loans. In order to effect any borrowing of
Tranche B Term Loans contemplated hereby on the Effective Date,
Administrative Agent is authorized to net an amount equal to the
proceeds of such borrowings from the $50,000,000 prepayment being made
on the Effective Date pursuant to Section 3.1(q) and to deliver such
proceeds to Borrower. After giving effect to the foregoing Tranche B
Term Loans in such amount shall be deemed outstanding hereunder as of
the Effective Date.
(iii) Whenever the Borrower desires that Lenders make
Tranche B Term Loans, the Borrower shall deliver to Administrative
Agent telephonic notice, followed by a fully executed and delivered
Funding Notice no later than 10:00 a.m. (New York City time) at least
three (3) Business Days in advance of the proposed Credit Date in the
case of a Eurodollar Rate Loan, and at least one (1) Business Day in
advance of the proposed Credit Date in the case of a Base Rate Loan.
Except as otherwise provided herein, a Funding Notice for a Loan that
is a Eurodollar Rate Loan shall be irrevocable on
34
and after the related Interest Rate Determination Date, and the
Borrower shall be bound to make a borrowing in accordance therewith.
(iv) Notice of receipt of each Funding Notice in respect
of Tranche B Term Loans, together with the amount of each Lender's Pro
Rata Share thereof, if any, together with the applicable interest rate,
shall be provided by Administrative Agent to each applicable Lender by
telefacsimile with reasonable promptness, but (provided Administrative
Agent shall have received such notice by 12:00 p.m. (New York City
time)) not later than 2:00 p.m. (New York City time) on the same day as
Administrative Agent's receipt of such notice from the Borrower.
(v) Each Lender shall make the amount of its Tranche B
Term Loan available to Administrative Agent not later than 12:00 p.m.
(New York City time) on the applicable Credit Date by wire transfer of
same day funds in Dollars, at the Administrative Agent's Principal
Office. Except as provided herein, upon satisfaction or waiver of the
conditions precedent specified herein, Administrative Agent shall make
the proceeds of such Tranche B Term Loans available to the Borrower by
3:00 p.m. New York City time on the applicable Credit Date by causing
an amount of same day funds in Dollars equal to the proceeds of all
such Loans received by Administrative Agent from Lenders to be credited
to the account of the Borrower at the Administrative Agent's Principal
Office or such other account as may be designated in writing to
Administrative Agent by the Borrower.
2.3 Pro Rata Shares.
All Tranche A Term Loans shall be deemed made, all Tranche B Term
Loans shall be made, and all participations purchased, by Lenders concurrently
and proportionately to their respective Pro Rata Shares, it being understood
that no Lender shall be responsible for any default by any other Lender in such
other Lender's obligation to make a Loan requested hereunder or purchase a
participation required hereby nor shall the Tranche B Term Loan Commitment of
any Lender be increased or decreased as a result of a default by any other
Lender in such other Lender's obligation to make a Loan requested hereunder or
purchase a participation required hereby.
2.4 Use of Proceeds.
The proceeds of the Loans have been used or shall be used (i) to
provide financing for the cost of design, development, acquisition,
construction, installation, improvement, transportation and/or integration of
equipment, inventory or facility assets, inventory or network assets and of
leasing and acquiring of real property, and (ii) for working capital and other
general corporate purposes of Company and its Domestic Subsidiaries, including
Permitted Acquisitions. No portion of the proceeds of any Credit Extension shall
be used by Company or any of its Subsidiaries in any manner that might cause
such Credit Extension or the application of such proceeds to violate Regulation
T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve
System or any other regulation thereof or to violate the Exchange Act.
35
2.5 Evidence of Debt; Register; Lenders' Books and Records; Notes.
(a) Lenders' Evidence of Debt. Each Lender shall maintain on
-------------------------
its internal records an account or accounts evidencing the Indebtedness of
Borrower to such Lender, including the amounts of the Loans made by it and each
repayment and prepayment in respect thereof. Any such recordation shall be
conclusive and binding on the Borrower, absent manifest error; provided, failure
--------
to make any such recordation, or any error in such recordation, shall not affect
any Lender's Commitments or Borrower's Obligations in respect of any applicable
Loans; and provided further, in the event of any inconsistency between the
-------- -------
Register and any Lender's records, the recordations in the Register shall
govern.
(b) Register. Administrative Agent shall maintain at its
--------
Principal Office a register for the recordation of the names and addresses of
Lenders and the Tranche B Term Loan Commitments and Loans of each Lender from
time to time (the "Register"). The Register shall be available for inspection by
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice. Administrative Agent shall record in the Register the
Tranche B Term Loan Commitments and the Loans, and each repayment or prepayment
in respect of the principal amount of the Loans, and any such recordation shall
be conclusive and binding on the Borrower and each Lender, absent manifest
error; provided, failure to make any such recordation, or any error in such
--------
recordation, shall not affect any Lender's Commitments or Borrower's Obligations
in respect of any Loan. Borrower hereby designates the Administrative Agent to
serve as Borrower's agent solely for purposes of maintaining the Register as
provided in this Section 2.5, and Borrower hereby agrees that, to the extent the
Administrative Agent serves in such capacity, the Administrative Agent and its
officers, directors, employees, agents and affiliates shall constitute
"Indemnitees."
(c) Notes. If so requested by any Lender by written notice to
-----
the Borrower (with a copy to Administrative Agent), at any time, Borrower shall
execute and deliver to such Lender (and/or, if applicable and if so specified in
such notice, to any Person who is an assignee of such Lender pursuant to Section
10.6) on the Effective Date (or, if such notice is delivered after the Effective
Date, promptly after the Borrower's receipt of such notice) a Note or Notes to
evidence such Lender's Loans.
2.6 Interest on Loans.
(a) Except as otherwise set forth herein, each Loan shall bear
interest on the unpaid principal amount thereof from the date made through
repayment (whether by acceleration or otherwise) thereof as follows:
(i) if a Base Rate Loan, at the Base Rate plus the
Applicable Margin; or
(ii) if a Eurodollar Rate Loan, at the Adjusted
Eurodollar Rate plus the Applicable Margin.
----
(b) The basis for determining the rate of interest with
respect to any Loan, and the Interest Period with respect to any Eurodollar Rate
Loan, shall be selected by the Borrower and notified to Administrative Agent and
Lenders pursuant to the applicable Funding
36
Notice or Conversion/Continuation Notice, as the case may be. If on any day a
Loan is outstanding with respect to which a Conversion/Continuation Notice has
not been delivered to Administrative Agent in accordance with the terms hereof
specifying the applicable basis for determining the rate of interest, then for
that day such Loan shall be a Base Rate Loan. Notwithstanding the foregoing, (i)
with respect to Tranche A Term Loans outstanding as of the Effective Date, the
Adjusted Eurodollar Rate applicable to the Existing Loans and the related
Interest Periods shall continue to apply to the related Sub-Tranche through the
expiration of the applicable Interest Periods, as applicable, (ii) the basis for
determining interest rates and associated payments in accordance with the terms
hereof with respect to Tranche A Term Loans shall be made with reference to the
applicable Sub-Tranche, and (iii) the basis for determining the rate of interest
applicable to the Tranche B Term Loans made on the Effective Date shall be set
forth in the Effective Date Certificate.
(c) In connection with Eurodollar Rate Loans there shall be no
more than ten (10) Interest Periods outstanding at any time. In the event
Borrower fails to specify between a Base Rate Loan or a Eurodollar Rate Loan in
the applicable Funding Notice or Conversion/Continuation Notice, such Loan (if
outstanding as a Eurodollar Rate Loan) will be automatically converted into a
Base Rate Loan on the last day of the then-current Interest Period for such Loan
(or if outstanding as a Base Rate Loan will remain as, or (if not then
outstanding) will be made as, a Base Rate Loan). In the event the Borrower fails
to specify an Interest Period for any Eurodollar Rate Loan in the applicable
Funding Notice or a Conversion/Continuation Notice, the Borrower shall be deemed
to have selected an Interest Period of one month. As soon as practicable after
10:00 a.m. (New York City time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent manifest
error, be final, conclusive and binding upon all parties) the interest rate that
shall apply to the Eurodollar Rate Loans for which an interest rate is then
being determined for the applicable Interest Period and shall promptly give
notice thereof (in writing or by telephone confirmed in writing) to the Borrower
and each Lender.
(d) Interest payable pursuant to Section 2.6(a) shall be
computed in the case of Base Rate Loans on the basis of a 365-day or 366-day
year, as the case may be, and in the case of Eurodollar Rate Loans, on the basis
of a 360-day year, in each case for the actual number of days elapsed in the
period during which it accrues. In computing interest on any Loan, the date of
the making of such Loan or the first day of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted from a Eurodollar
Rate Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate
Loan, as the case may be, shall be included, and the date of payment of such
Loan or the expiration date of an Interest Period applicable to such Loan or,
with respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the
date of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the
case may be, shall be excluded; provided, if a Loan is repaid on the same day on
--------
which it is made, one day's interest shall be paid on that Loan.
(e) Except as otherwise set forth herein, interest on each
Loan shall be payable in arrears (i) on each Interest Payment Date applicable to
that Loan; (ii) in the case of any prepayment of that Loan, whether voluntary or
mandatory, on the date of prepayment (to the extent accrued on the amount being
prepaid); and (iii) at the Maturity Date.
37
2.7 Conversion/Continuation.
(a) Subject to Section 2.17 and so long as no Default or Event
of Default shall have occurred and then be continuing, the Borrower shall have
the option:
(i) to convert at any time all or any part of any Loan
equal to $1,000,000 and integral multiples of $500,000 in excess of
that amount from one Type of Loan to another Type of Loan; provided, a
--------
Eurodollar Rate Loan may only be converted on the expiration of the
Interest Period applicable to such Eurodollar Rate Loan unless the
Borrower shall pay all amounts due under Section 2.17 in connection
with any such conversion; or
(ii) upon the expiration of any Interest Period applicable
to any Eurodollar Rate Loan, to continue all or any portion of such
Loan equal to $1,000,000 and integral multiples of $500,000 in excess
of that amount as a Eurodollar Rate Loan.
(b) The Borrower shall deliver a Conversion/Continuation
Notice to Administrative Agent no later than 10:00 a.m. (New York City time) at
least one (1) Business Day in advance of the proposed conversion date (in the
case of a conversion to a Base Rate Loan) and at least three (3) Business Days
in advance of the proposed conversion/continuation date (in the case of a
conversion to, or a continuation of, a Eurodollar Rate Loan). Except as
otherwise provided herein, a Conversion/Continuation Notice for conversion to,
or continuation of, any Eurodollar Rate Loans (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and the Borrower shall be bound to effect a conversion or
continuation in accordance therewith.
2.8 Default Interest. Upon the occurrence and during the continuance
of an Event of Default, the principal amount of all Loans and, to the extent
permitted by applicable law, any interest payments on the Loans or any fees or
other amounts owed hereunder not paid when due, in each case whether at stated
maturity, by notice of prepayment, by acceleration or otherwise, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) payable on demand
at a rate that is 5.0% per annum in excess of the interest rate otherwise
payable hereunder with respect to the applicable Loans (or, in the case of any
such fees and other amounts, at a rate which is 5.0% per annum in excess of the
interest rate otherwise payable hereunder for Base Rate Loans); provided, in the
case of Eurodollar Rate Loans, upon the expiration of the Interest Period in
effect at the time any such increase in interest rate is effective, such
Eurodollar Rate Loans shall thereupon become Base Rate Loans and shall
thereafter bear interest payable upon demand at a rate which is 5.0% per annum
in excess of the interest rate otherwise payable hereunder for Base Rate Loans.
Payment or acceptance of the increased rates of interest provided for in this
Section 2.8 is not a permitted alternative to timely payment and shall not
constitute a waiver of any Event of Default or otherwise prejudice or limit any
rights or remedies of Administrative Agent, any other Agent or any Lender.
38
2.9 Fees.
(a) Company agrees to pay from the Effective Date to the
Tranche B Term Loan Commitment Termination Date to Lenders having Tranche B Term
Loan Exposure a commitment fee equal to (y) the average of the daily unused
Tranche B Term Loan Commitment of such Lender during the preceding month
multiplied by, (z) the Applicable Commitment Fee Percentage. All fees referred
to in this Section 2.9(a) shall be paid to Administrative Agent at its Principal
Office and upon receipt, Administrative Agent shall promptly distribute to each
Lender its Pro Rata Share thereof.
(b) All fees referred to in Section 2.9(a) shall be calculated
on the basis of a 360- day year and the actual number of days elapsed and shall
be payable (i) monthly in arrears commencing on the last day of the month during
which the Effective Date occurs, and (ii) on the Tranche B Term Loan Commitment
Termination Date.
(c) In addition to any of the foregoing fees, Company agrees
to pay to Agents such other fees in the amounts and at the times separately
agreed upon by Company and such Agents.
2.10 Scheduled Payments.
Scheduled Term Loan and Delayed Draw Term Loan Installments.
-----------------------------------------------------------
The principal amounts of the Tranche A Term Loans and Tranche B Term Loans shall
be repaid in the aggregate amounts set forth below (each, a "Term Loan
Installment") on the corresponding date set forth below (each, a "Term Loan
Installment Date") each such prepayment to be allocated on a pro rata basis
among Tranche A Term Loans and Tranche B Term Loans outstanding as the date of
such repayment:
------------------------------------------------------
Term Loan Installment Term Loan
Dates Installments
------------------------------------------------------
March 31, 2003 $ 1,250,000
------------------------------------------------------
June 30, 2003 $ 1,250,000
------------------------------------------------------
September 30, 2003 $ 1,250,000
------------------------------------------------------
December 31, 2003 $ 6,250,000
------------------------------------------------------
March 31, 2004 $12,500,000
------------------------------------------------------
June 30, 2004 $12,500,000
------------------------------------------------------
September 30, 2004 $12,500,000
------------------------------------------------------
December 31, 2004 $12,500,000
------------------------------------------------------
March 31, 2005 $18,750,000
------------------------------------------------------
June 30, 2005 $18,750,000
------------------------------------------------------
September 30, 2005 $18,750,000
------------------------------------------------------
December 15, 2005 $ 8,750,000
------------------------------------------------------
Notwithstanding the foregoing, (i) such Term Loan Installments shall be reduced
in connection with any voluntary or mandatory prepayments of the Loans, in
accordance with Sections 2.11, 2.12 and 2.13, as applicable; (ii) to the extent
Tranche B Term Loans in an amount equal to the Tranche B Term Loan Commitments
have not been borrowed on or before the Tranche B Term
39
Loan Commitment Termination Date, the foregoing Term Loan Installments shall be
reduced on pro rata basis by the unborrowed amount, beginning with the Term Loan
Installments commencing on March 31, 2004 and thereafter and (iii) the Loans,
together with all other amounts owed hereunder with respect thereto, shall, in
any event, be paid in full no later than the Maturity Date.
2.11 Voluntary Prepayments/Commitment Reductions.
(a) Voluntary Prepayments.
---------------------
(i) Any time and from time to time:
(1) with respect to Base Rate Loans, the Borrower
may prepay, subject to Section 2.11(c), any such Loans on any Business Day in
whole or in part, in an aggregate minimum amount of $2,000,000 and integral
multiples of $1,000,000 in excess of that amount; and
(2) with respect to Eurodollar Rate Loans, the
Borrower may prepay, subject to Sections 2.11(c) and 2.17, any such Loans on any
Business Day in whole or in part in an aggregate minimum amount of $2,000,000
and integral multiples of $1,000,000 in excess of that amount.
(ii) All such prepayments shall be made:
(1) upon not less than one (1) Business Days' prior
written or telephonic notice in the case of Base Rate Loans; and
(2) upon not less than three (3) Business Days'
prior written or telephonic notice in the case of Eurodollar Rate Loans, in each
case given to Administrative Agent, as the case may be, by 12:00 p.m. (New York
City time) on the date required and, if given by telephone, promptly confirmed
in writing to Administrative Agent (and Administrative Agent will promptly
transmit such telephonic or original notice by telefacsimile or telephone to
each Lender). Upon the giving of any such notice, the principal amount of the
Loans specified in such notice shall become due and payable on the prepayment
date specified therein.
(b) Voluntary Tranche B Term Loan Commitment Reductions.
(i) The Borrower may, upon not less than three (3)
Business Days' prior written or telephonic notice confirmed in writing
to Administrative Agent (which original written or telephonic notice
Administrative Agent will promptly transmit by telefacsimile or
telephonic notice to each applicable Lender), at any time and from time
to time terminate in whole or permanently reduce in part, without
premium or penalty, the Tranche B Term Loan Commitments in an amount up
to the amount by which the Tranche B Term Loan Commitments exceed the
outstanding Tranche B Term Loans at the time of such proposed
termination or reduction; provided, any such partial
--------
40
reduction of the Tranche B Term Loan Commitments shall be in an
aggregate minimum amount of $2,000,000 and integral multiples of
$1,000,000 in excess of that amount.
(ii) The Borrower's notice to Administrative Agent shall
designate the date (which shall be a Business Day) of such termination
or reduction and the amount of any partial reduction, and such
termination or reduction of the Tranche B Term Loan Commitments shall
be effective on the date specified in the Borrower's notice and shall
reduce the Tranche B Term Loan Commitments of each Lender
proportionately to its Pro Rata Share thereof.
2.12 Mandatory Prepayments/Commitment Reductions.
(a) Asset Sales. If, within the period of one hundred eighty
-----------
(180) days after the receipt by Company or any of its Restricted Subsidiaries of
Net Asset Sale Proceeds, OpCo (or to the extent such Net Asset Sale Proceeds are
proceeds of the sale of assets of Company, Company) has not invested (or
committed to invest within 180 days and actually invested within a period of 270
days) such Net Asset Sale Proceeds in long term productive assets of the general
type used in the business of Company and its Restricted Subsidiaries, as
certified to Administrative Agent by Company, then, to the extent the Borrower
has not previously done so, the Borrower shall prepay Loans and/or the Tranche B
Term Loan Commitments shall be permanently reduced as set forth in Section 2.13,
in either case in an amount equal to the excess of such Net Asset Sale Proceeds
over amounts invested as aforesaid.
(b) Insurance/Condemnation Proceeds. If, within the period of
-------------------------------
one hundred eighty (180) days after the receipt by Company or any of its
Restricted Subsidiaries of Net Insurance/Condemnation Proceeds, OpCo (or to the
extent such Net Asset Sale Proceeds are proceeds of the sale of assets of
Company, Company) has not invested (or committed to invest within 180 days and
actually invested within a period of 270 days) such Net Insurance/Condemnation
Proceeds in long term productive assets of general type used in the business of
Company and its Restricted Subsidiaries, as certified to Administrative Agent by
Company then, to the extent the Borrower has not previously done so, the
Borrower shall prepay Loans and/or the Tranche B Term Loan Commitments shall be
permanently reduced as set forth in Section 2.13, in either case in an amount
equal to the excess of such Net Insurance/Condemnation Proceeds over amounts
invested as aforesaid.
(c) Consolidated Excess Cash Flow. In the event that there
-----------------------------
shall be Consolidated Excess Cash Flow for any Fiscal Year, commencing with
Fiscal Year 2003, the Borrower shall, no later than sixty (60) days after the
end of such Fiscal Year, prepay the Loans and/or the Tranche B Term Loan
Commitments shall be permanently reduced as set forth in Section 2.13 in an
aggregate amount equal to 50% of such Consolidated Excess Cash Flow.
(d) Borrowing Base. Borrower shall from time to time prepay
--------------
the Loans to the extent necessary so that the aggregate principal amount of all
outstanding Loans, shall not at any time exceed the Borrowing Base then in
effect.
(e) Prepayment Certificate. Concurrently with any prepayment
----------------------
of the Loans and/or reduction of the Tranche B Term Loan Commitments pursuant to
Sections 2.12(a)
41
through 2.12(d), Borrower shall deliver to Administrative Agent a certificate of
an Authorized Officer (a copy of which Administrative Agent shall promptly
provide to each Lender) demonstrating the calculation of the amount of the
applicable net proceeds or Consolidated Excess Cash Flow, as the case may be. In
the event that the Borrower shall subsequently determine that the actual amount
received exceeded the amount set forth in such certificate, the Borrower shall
promptly make an additional prepayment of the Loans and/or Tranche B Term Loan
Commitments shall be permanently reduced in an amount equal to such excess, and
Borrower shall concurrently therewith deliver to Administrative Agent (a copy of
which Administrative Agent shall promptly provide to each Lender) a certificate
of an Authorized Officer demonstrating the derivation of such excess.
2.13 Application of Prepayments/Reductions.
(a) Application of Voluntary Prepayments by Type of Loans. Any
-----------------------------------------------------
prepayment of any Loan pursuant to Section 2.11(a) shall be applied to prepay
outstanding Loans on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof). Any prepayment of Loans pursuant to
Section 2.11(a) shall be further applied, on a pro rata basis, to the remaining
scheduled Term Loan Installments.
(b) Application of Mandatory Prepayments by Type of Loans. (i)
-----------------------------------------------------
Any amount required to be prepaid pursuant to Section 2.12 shall be applied
first, to prepay outstanding Loans on a pro rata basis (in accordance with the
respective outstanding principal amounts thereof) and second, to reduce any
unused Tranche B Term Loan Commitments, and shall be further applied to the
remaining scheduled Term Loan Installments, in inverse order of maturity;
(c) Application of Prepayments of Loans to Base Rate Loans and
----------------------------------------------------------
Eurodollar Rate Loans. Considering each Class of Loans being prepaid separately,
---------------------
any prepayment thereof shall be applied first to Base Rate Loans to the full
extent thereof before application to Eurodollar Rate Loans, in each case in a
manner which minimizes the amount of any payments required to be made by
Borrower pursuant to Section 2.17(c).
2.14 Allocation of Certain Payments and Proceeds. If an Event of
Default shall have occurred and not otherwise be waived, and the maturity of the
Obligations shall have been accelerated pursuant to Section 8.1, all payments or
proceeds received by Agents hereunder in respect of any of the Obligations,
shall be applied by Agents in accordance with the application arrangements
described in Section 6.5 of the Pledge and Security Agreement.
2.15 General Provisions Regarding Payments.
(a) All payments by the Borrower of principal, interest, fees
and other Obligations shall be made in Dollars in same day funds, without
defense, setoff or counterclaim, free of any restriction or condition, and
delivered to Administrative Agent not later than 12:00 p.m. (New York City time)
on the date due at the Administrative Agent's Principal Office for the account
of Lenders; funds received by Administrative Agent after that time on such due
date shall be deemed to have been paid by the Borrower on the next succeeding
Business Day.
42
(b) All payments in respect of the principal amount of any
Loan shall include payment of accrued interest on the principal amount being
repaid or prepaid, and all such payments (and, in any event, any payments in
respect of any Loan on a date when interest is due and payable with respect to
such Loan) shall be applied to the payment of interest before application to
principal.
(c) Administrative Agent shall promptly distribute to each
Lender at such address as such Lender shall indicate in writing, such Lender's
applicable Pro Rata Share, giving effect to any adjustment from Pro Rata Shares
on and after the Closing Date, of all payments and prepayments of principal and
interest due hereunder, together with all other amounts due thereto, including,
without limitation, all fees payable with respect thereto, to the extent
received by Administrative Agent.
(d) Notwithstanding the foregoing provisions hereof, if any
Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any
Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any
Eurodollar Rate Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.
(e) Subject to the provisos set forth in the definition of
"Interest Period", whenever any payment to be made hereunder shall be stated to
be due on a day that is not a Business Day, such payment shall be made on the
next succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest hereunder.
(f) The Borrower hereby authorizes Administrative Agent to
charge its accounts with Administrative Agent in order to cause timely payment
to be made to Administrative Agent of all principal, interest, fees and expenses
due hereunder (subject to sufficient funds being available in its accounts for
that purpose).
(g) Administrative Agent shall deem any payment by or on
behalf of the Borrower hereunder that is not made in same day funds prior to
12:00 p.m. (New York City time) on or before the due date to be a non-conforming
payment. Any such payment shall not be deemed to have been received by
Administrative Agent until the later of (i) the time such funds become available
funds, and (ii) the applicable next Business Day. Administrative Agent shall
give prompt telephonic notice to the Borrower and each applicable Lender
(confirmed in writing) if any payment is non-conforming. Any non-conforming
payment may constitute or become a Default or Event of Default in accordance
with the terms of Section 8.1(a). Interest shall continue to accrue on any
principal as to which a non-conforming payment is made until such funds become
available funds (but in no event less than the period from the date of such
payment to the next succeeding applicable Business Day) at the rate determined
pursuant to Section 2.8 from the date such amount was due and payable until the
date such amount is paid in full.
2.16 Ratable Sharing. Lenders hereby agree among themselves that,
except as otherwise provided in the Collateral Documents with respect to amounts
realized from the exercise of rights with respect to Liens on the Collateral, if
any of them shall, whether by voluntary payment (other than a voluntary
prepayment of Loans made and applied in accordance with the terms hereof),
through the exercise of any right of set-off or banker's lien, by counterclaim
or cross action or by the enforcement of any right under the Credit Documents or
43
otherwise, or as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction of a proportion of the
aggregate amount of principal, interest, fees and other amounts then due and
owing to such Lender hereunder or under the other Credit Documents
(collectively, the "Aggregate Amounts Due" to such Lender) which is greater than
the proportion received by any other Lender in respect of the Aggregate Amounts
Due to such other Lender, then the Lender receiving such proportionately greater
payment shall notify Administrative Agent and each other Lender of the receipt
of such payment and apply a portion of such payment to purchase participations
(which it shall be deemed to have purchased from each seller of a participation
simultaneously upon the receipt by such seller of its portion of such payment)
in the Aggregate Amounts Due to the other Lenders so that all such recoveries of
Aggregate Amounts Due shall be shared by all Lenders in proportion to the
Aggregate Amounts Due to them; provided, if all or part of such proportionately
--------
greater payment received by such purchasing Lender is thereafter recovered from
such Lender upon the bankruptcy or reorganization of a Credit Party or
otherwise, those purchases shall be rescinded and the purchase prices paid for
such participations shall be promptly returned to such purchasing Lender ratably
to the extent of such recovery, but without interest. The Borrower expressly
consents to the foregoing arrangement and agrees that any holder of a
participation so purchased may exercise any and all rights of banker's lien,
set-off or counterclaim with respect to any and all monies owing by the Borrower
to that holder with respect thereto as fully as if that holder were owed the
amount of the participation held by that holder.
2.17 Making or Maintaining Eurodollar Rate Loans.
(a) Inability to Determine Applicable Interest Rate. In the
-----------------------------------------------
event that Administrative Agent shall have determined (which determination shall
be final and conclusive and binding upon all parties hereto), on any Interest
Rate Determination Date with respect to any Eurodollar Rate Loans, that by
reason of circumstances affecting the London interbank market adequate and fair
means do not exist for ascertaining the interest rate applicable to such Loans
on the basis provided for in the definition of Adjusted Eurodollar Rate,
Administrative Agent shall on such date give notice (by telefacsimile or by
telephone confirmed in writing) to the Borrower and each Lender of such
determination, whereupon no Loans may be made as, or converted to, Eurodollar
Rate Loans until such time as Administrative Agent notifies the Borrower and
Lenders (by telefacsimile or by telephonic notice confirmed in writing) that the
circumstances giving rise to such notice no longer exist, and any Funding Notice
or Conversion/Continuation Notice given by the Borrower with respect to the
Loans in respect of which such determination was made shall be deemed to be, in
the case of a Conversion Notice, rescinded by the Borrower and, in the case of a
Funding Notice, deemed to be a Funding Notice in respect of Base Rate Loans.
(b) Illegality or Impracticability of Eurodollar Rate Loans.
-------------------------------------------------------
In the event that on any date any Lender shall have determined (which
determination shall be final and conclusive and binding upon all parties hereto
but shall be made only after consultation with the Borrower and Administrative
Agent) that the making, maintaining or continuation of its Eurodollar Rate Loans
has become unlawful as a result of compliance by such Lender in good faith with
any law, treaty, governmental rule, regulation, guideline or order (or would
conflict with any such treaty, governmental rule, regulation, guideline or order
not having the force of law even though the failure to comply therewith would
not be unlawful), or has become
44
impracticable, as a result of contingencies occurring after the date hereof
which materially and adversely affect the London interbank market or the
position of such Lender in that market, then, and in any such event, such Lender
shall be an "Affected Lender" and it shall on that day give notice (by
telefacsimile or by telephone confirmed in writing) to the Borrower and
Administrative Agent of such determination (which notice Administrative Agent
shall promptly transmit to each other Lender and by telefacsimile or telephonic
notice confirmed in writing). Thereafter the obligation of the Affected Lender
to make Loans as, or to convert Loans to, Eurodollar Rate Loans shall be
suspended until such notice shall be withdrawn by the Affected Lender, to the
extent such determination by the Affected Lender relates to a Eurodollar Rate
Loan then being requested by the Borrower pursuant to a Funding Notice or a
Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or
continue such Loan as or convert such Loan to, as the case may be) a Base Rate
Loan, the Affected Lender's obligation to maintain its outstanding Eurodollar
Rate Loans (the "Affected Loans") shall be terminated at the earlier to occur of
the expiration of the Interest Period then in effect with respect to the
Affected Loans or when required by law, and the Affected Loans shall
automatically convert into Base Rate Loans on the date of such termination.
Notwithstanding the foregoing, to the extent a determination by an Affected
Lender as described above relates to a Eurodollar Rate Loan then being requested
by the Borrower pursuant to a Funding Notice or a Conversion/Continuation
Notice, the Borrower shall have the option, subject to the provisions of Section
2.17(c), to rescind such Funding Notice or Conversion/Continuation Notice as to
all Lenders by giving notice (by telefacsimile or by telephone confirmed in
writing) to Administrative Agent of such rescission on the date on which the
Affected Lender gives notice of its determination as described above (which
notice of rescission Administrative Agent shall promptly transmit to each other
Lender by telefacsimile or by telephonic notice confirmed in writing). Except as
provided in the immediately preceding sentence, nothing in this Section 2.17(b)
shall affect the obligation of any Lender other than an Affected Lender to make
or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in
accordance with the terms hereof.
(c) Compensation for Breakage or Non-Commencement of Interest
---------------------------------------------------------
Periods. The Borrower shall compensate each Lender, upon written request by such
-------
Lender (which request shall set forth the basis for requesting such amounts),
for all reasonable losses, expenses and liabilities (including any interest paid
by such Lender to lenders of funds borrowed by it to make or carry its
Eurodollar Rate Loans and any loss, expense or liability sustained by such
Lender in connection with the liquidation or re-employment of such funds but
excluding loss of anticipated profits) which such Lender may sustain (i) if for
any reason as a result of the Borrower's action or omission a borrowing of any
Eurodollar Rate Loan does not occur on a date specified therefor in a Funding
Notice or a telephonic request for borrowing, or a conversion to or continuation
of any Eurodollar Rate Loan does not occur on a date specified therefor in a
Conversion/Continuation Notice or a telephonic request for conversion or
continuation; (ii) if any prepayment or other principal payment or any
conversion of any of its Eurodollar Rate Loans occurs on a date prior to the
last day of an Interest Period applicable to that Loan; or (iii) if any
prepayment of any of its Eurodollar Rate Loans is not made on any date specified
in a notice of prepayment given by the Borrower or as a consequence of any
default by the Borrower in the repayment of its Eurodollar Rate Loans when
required by the terms thereof.
45
(d) Booking of Eurodollar Rate Loans. Any Lender may make,
--------------------------------
carry or transfer Eurodollar Rate Loans at, to, or for the account of any of its
branch offices or the office of an Affiliate of such Lender.
(e) Assumptions Concerning Funding of Eurodollar Rate Loans.
-------------------------------------------------------
Calculation of all amounts payable to a Lender under this Section 2.17 and under
Section 2.18 shall be made as though such Lender had actually funded each of its
relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit
bearing interest at the rate obtained pursuant to clause (i) of the definition
of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar
Rate Loan and having a maturity comparable to the relevant Interest Period and
through the transfer of such Eurodollar deposit from an offshore office of such
Lender to a domestic office of such Lender in the United States of America;
provided, however, each Lender may fund each of its Eurodollar Rate Loans in any
manner it sees fit and the foregoing assumptions shall be utilized only for the
purposes of calculating amounts payable under this Section 2.17 and under
Section 2.18.
2.18 Increased Costs; Capital Adequacy.
(a) Compensation For Increased Costs and Taxes. Subject to the
------------------------------------------
provisions of Section 2.19 (which shall be controlling with respect to the
matters covered thereby), in the event that any Lender shall determine (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) that any law, treaty or governmental rule, regulation
or order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or
Governmental Authority, in each case that becomes effective after the date
hereof, or compliance by such Lender with any guideline, request or directive
issued or made after the date hereof by any central bank or other governmental
or quasi-governmental authority (whether or not having the force of law):
subjects such Lender (or its applicable lending office) to any additional Tax
(other than any Tax on the overall net income of such Lender) with respect to
this Agreement or any of its obligations hereunder or any payments to such
Lender (or its applicable lending office) of principal, interest, fees or any
other amount payable hereunder or thereunder; imposes, modifies or holds
applicable any reserve (including any marginal, emergency, supplemental, special
or other reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement against assets held by, or deposits or other liabilities in or for
the account of, or advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Lender (other than any such
reserve or other requirements with respect to Eurodollar Rate Loans that are
reflected in the definition of Adjusted Eurodollar Rate); or imposes any other
condition (other than with respect to a Tax matter) on or affecting such Lender
(or its applicable lending office) or its obligations hereunder or under any
other Credit Document or the London interbank market; and the result of any of
the foregoing is to increase the cost to such Lender of agreeing to make, making
or maintaining Eurodollar Rate Loans hereunder or to reduce any amount received
or receivable by such Lender (or its applicable lending office) with respect
thereto; then, in any such case, the Borrower shall promptly pay to such Lender,
upon receipt of the statement referred to in the next sentence, such additional
amount or amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its sole discretion shall
determine) as may be necessary to compensate such Lender for any such
46
increased cost or reduction in amounts received or receivable hereunder or under
any other Credit Document. Such Lender shall deliver to the Borrower (with a
copy to Administrative Agent) a written statement, setting forth in reasonable
detail the basis for calculating the additional amounts owed to such Lender
under this Section 2.18(a), which statement shall be conclusive and binding upon
all parties hereto absent manifest error.
(b) Capital Adequacy Adjustment. In the event that any Lender
---------------------------
shall have determined that the adoption, effectiveness, phase-in or
applicability after the date hereof of any law, rule or regulation (or any
provision thereof) regarding capital adequacy, or any change therein or in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its applicable lending office) with any
guideline, request or directive regarding capital adequacy (whether or not
having the force of law) of any such Governmental Authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on the capital of such Lender or any corporation controlling such Lender as a
consequence of, or with reference to, such Lender's Loans or Tranche B Term Loan
Commitments, or participations therein or other obligations hereunder with
respect to the Loans to a level below that which such Lender or such controlling
corporation could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy),
then from time to time, within five (5) Business Days after receipt by the
Borrower from such Lender of the statement referred to in the next sentence, the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender or such controlling corporation on an after-tax basis for
such reduction. Such Lender shall deliver to the Borrower (with a copy to
Administrative Agent) a written statement, setting forth in reasonable detail
the basis for calculating the additional amounts owed to Lender under this
Section 2.18(b), which statement shall be conclusive and binding upon all
parties hereto absent manifest error.
(c) Limitation on Retroactive Effect. Failure or delay on the
--------------------------------
part of any Lender to demand compensation pursuant to this Section 2.18 shall
not constitute a waiver of such Lender's right to demand such compensation;
provided, however, that the Borrower shall not be required to compensate a
-------- -------
Lender pursuant to this Section 2.18 for any increased costs or reductions
incurred more than 180 days prior to the date that such Lender notifies the
Borrower of the change giving rise to such increased costs or reductions and of
such Lender's intention to claim compensation therefor; provided further that if
-------- -------
the change giving rise to such increased costs or reductions is retroactive,
then the 180-day period referred to above shall be extended to include the
period of retroactive effective thereof.
2.19 Taxes; Withholding, etc.
(a) Payments to Be Free and Clear. All sums payable by any
-----------------------------
Credit Party hereunder and under the other Credit Documents shall (except to the
extent required by law) be paid free and clear of, and without any deduction or
withholding on account of, any Tax (other than a Tax on the overall net income
of any Lender) imposed, levied, collected, withheld or assessed by or within the
United States of America or any political subdivision in or of the United States
of America or any other jurisdiction from or to which a payment is made by or on
47
behalf of any Credit Party or by any federation or organization of which the
United States of America or any such jurisdiction is a member at the time of
payment.
(b) Withholding of Taxes. If any Credit Party or any other
--------------------
Person is required by law to make any deduction or withholding on account of any
such Tax from any sum paid or payable by any Credit Party to Administrative
Agent or any Lender under any of the Credit Documents: the Borrower shall notify
Administrative Agent of any such requirement or any change in any such
requirement as soon as the Borrower becomes aware of it; the Borrower shall pay
any such Tax before the date on which penalties attach thereto, such payment to
be made (if the liability to pay is imposed on any Credit Party) for its own
account or (if that liability is imposed on Administrative Agent or such Lender,
as the case may be) on behalf of and in the name of Administrative Agent or such
Lender; the sum payable by such Credit Party in respect of which the relevant
deduction, withholding or payment is required shall be increased to the extent
necessary to ensure that, after the making of that deduction, withholding or
payment, Administrative Agent or such Lender, as the case may be, receives on
the due date a net sum equal to what it would have received had no such
deduction, withholding or payment been required or made; and within thirty (30)
days after paying any sum from which it is required by law to make any deduction
or withholding, and within thirty (30) days after the due date of payment of any
Tax which it is required by clause (ii) above to pay, the Borrower shall deliver
to Administrative Agent and the other affected parties evidence satisfactory to
the other affected parties of such deduction, withholding or payment and of the
remittance thereof to the relevant taxing or other authority; provided, no such
additional amount shall be required to be paid to any Lender under clause (iii)
above except to the extent that any change after the date hereof (in the case of
each Lender listed on the signature pages hereof on the Closing Date) or after
the effective date of the Assignment Agreement pursuant to which such Lender
became a Lender (in the case of each other Lender) in any such requirement for a
deduction, withholding or payment as is mentioned therein shall result in an
increase in the rate of such deduction, withholding or payment from that in
effect at the date hereof or at the date of such Assignment Agreement, in
respect of payments to such Lender.
(c) Evidence of Exemption From U.S. Withholding Tax. Each
-----------------------------------------------
Lender that is not a United States Person (as such term is defined in Section
7701(a)(30) of the Internal Revenue Code) for U.S. federal income tax purposes
(a "Non-US Lender") shall deliver (to the extent not previously delivered) to
Administrative Agent for transmission to Borrower, on or prior to the Effective
Date (in the case of each Lender listed on the signature pages hereof on the
Effective Date) or on or prior to the date of the Assignment Agreement pursuant
to which it becomes a Lender (in the case of each other Lender), and at such
other times as may be necessary in the determination of the Borrower or
Administrative Agent (each in the reasonable exercise of its discretion), two
original copies of Internal Revenue Service Form W-8BEN or W-8ECI (or any
successor forms), properly completed and duly executed by such Lender, and such
other documentation required under the Internal Revenue Code and reasonably
requested by the Borrower to establish that such Lender is not subject to
deduction or withholding of United States federal income tax with respect to any
payments to such Lender of principal, interest, fees or other amounts payable
under any of the Credit Documents, or if such Lender is not a "bank" or other
Person described in Section 881(c)(3) of the Internal Revenue Code and cannot
deliver either Internal Revenue Service Form W-8BEN or W-8ECI pursuant to clause
(i) above, a Certificate re Non-Bank Status together with two original copies of
Internal Revenue Service
48
Form W-8 (or any successor form), properly completed and duly executed by such
Lender, and such other documentation required under the Internal Revenue Code
and reasonably requested by the Borrower to establish that such Lender is not
subject to deduction or withholding of United States federal income tax with
respect to any payments to such Lender of interest payable under any of the
Credit Documents. Each Lender required to deliver any forms, certificates or
other evidence with respect to United States federal income tax withholding
matters pursuant to this Section 2.19(c) hereby agrees, from time to time after
the initial delivery by such Lender of such forms, certificates or other
evidence, whenever a lapse in time or change in circumstances renders such
forms, certificates or other evidence obsolete or inaccurate in any material
respect, that such Lender shall promptly deliver to Administrative Agent for
transmission to the Borrower two new original copies of Internal Revenue Service
Form W-8BEN or W-8ECI, or a Certificate re Non-Bank Status and two original
copies of Internal Revenue Service Form W-8, as the case may be, properly
completed and duly executed by such Lender, and such other documentation
required under the Internal Revenue Code and reasonably requested by the
Borrower to confirm or establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to payments to such
Lender under the Credit Documents, or notify Administrative Agent and the
Borrower of its inability to deliver any such forms, certificates or other
evidence. The Borrower shall not be required to pay any additional amount to any
Non-US Lender under Section 2.19(b)(iii) if such Lender shall have failed to
deliver the forms, certificates or other evidence referred to in the second
sentence of this Section 2.19(c), or (2) to notify Administrative Agent and the
Borrower of its inability to deliver any such forms, certificates or other
evidence, as the case may be; provided, if such Lender shall have satisfied the
--------
requirements of the first sentence of this Section 2.19(c) on the Effective Date
or on the date of the Assignment Agreement pursuant to which it became a Lender,
as applicable, nothing in this last sentence of Section 2.19(c) shall relieve
the Borrower of its obligation to pay any additional amounts pursuant to Section
2.18(a) in the event that, as a result of any change in any applicable law,
treaty or governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such Lender is no longer
properly entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender is not subject to
withholding as described herein.
2.20 Obligation to Mitigate. Each Lender agrees that, as promptly as
practicable after the officer of such Lender responsible for administering its
Loans, becomes aware of the occurrence of an event or the existence of a
condition that would cause such Lender to become an Affected Lender or that
would entitle such Lender to receive payments under Section 2.17, 2.18 or 2.19,
it will, to the extent not inconsistent with the internal policies of such
Lender and any applicable legal or regulatory restrictions, (i) use reasonable
efforts to make, issue, fund or maintain its Tranche B Term Loan Commitments or
Loans, including any Affected Loans, through another office of such Lender, or
(ii) take such other measures as such Lender may deem reasonable, if as a result
thereof the circumstances which would cause such Lender to be an Affected Lender
would cease to exist or the additional amounts which would otherwise be required
to be paid to such Lender pursuant to Section 2.17, 2.18 or 2.19 would be
materially reduced and if, as determined by such Lender in its sole discretion,
the making, issuing, funding or maintaining of such Tranche B Term Loan
Commitments or Loans through such other office or in accordance with such other
measures, as the case may be, would not otherwise adversely affect such Tranche
B Term Loan Commitment or Loans or the interests of such Lender; provided, such
--------
Lender will not be obligated to utilize such other office pursuant to this
Section
49
2.20 unless the Borrower agrees to pay all incremental expenses incurred by such
Lender as a result of utilizing such other office as described in clause (i)
above. A certificate as to the amount of any such expenses payable by the
Borrower pursuant to this Section 2.20 (setting forth in reasonable detail the
basis for requesting such amount) submitted by such Lender to Borrower (with a
copy to Administrative Agent) shall be conclusive absent manifest error.
2.21 Defaulting Lenders. Anything contained herein to the contrary
notwithstanding, in the event that any Lender defaults (a "Defaulting Lender")
in its obligation to fund (a "Funding Default") any Loan (in each case, a
"Defaulted Loan"), then (a) during any such period when such default is
continuing with respect to such Defaulting Lender (the "Default Period"), such
Defaulting Lender shall not be deemed to be a "Lender" for purposes of voting on
any matters (including the granting of any consents or waivers) with respect to
any of the Credit Documents; (b) to the extent permitted by applicable law,
until such time as the Default Excess with respect to such Defaulting Lender
shall have been reduced to zero, any voluntary prepayment of the Loans shall, if
the Borrower so directs at the time of making such voluntary prepayment, be
applied to the Loans of other Lenders as if such Defaulting Lender had no Loans
outstanding and the Tranche A Term Loan Exposure and the Tranche B Term Loan
Exposure of such Defaulting Lender were zero, and any mandatory prepayment of
the Loans shall, if the Borrower so directs at the time of making such mandatory
prepayment, be applied to the Loans of other Lenders (but not to the Loans of
such Defaulting Lender); (c) such Defaulting Lender's Tranche B Term Loan
Commitment and outstanding Loans shall be excluded for purposes of calculating
the commitment fee payable to Lenders in respect of any day during any Default
Period with respect to such Defaulting Lender, and such Defaulting Lender shall
not be entitled to receive any commitment fee pursuant to Section 2.9 with
respect to such Defaulting Lender's Tranche B Term Loan Commitment in respect of
any Default Period with respect to such Defaulting Lender; and (d) the total
utilization of Tranche B Term Loan Commitments as at any date of determination
shall be calculated as if such Defaulting Lender had funded all Defaulted Loans
of such Defaulting Lender. No Tranche B Term Loan Commitment of any Lender shall
be increased or otherwise affected, and, except as otherwise expressly provided
in this Section 2.21, performance by Borrower of its obligations hereunder and
the other Credit Documents shall not be excused or otherwise modified as a
result of any Funding Default or the operation of this Section 2.21. The rights
and remedies against a Defaulting Lender under this Section 2.21 are in addition
to other rights and remedies which Borrower or Requisite Lenders may have
against such Defaulting Lender with respect to any Funding Default and which
Administrative Agent or any Lender may have against such Defaulting Lender with
respect to any Funding Default.
2.22 Removal or Replacement of a Lender. Anything contained herein
to the contrary notwithstanding, in the event that: (i) any Lender (an
"Increased-Cost Lender") shall give notice to the Borrower that such Lender is
an Affected Lender or that such Lender is entitled to receive payments under
Section 2.17, 2.18 or 2.19, the circumstances which have caused such Lender to
be an Affected Lender or which entitle such Lender to receive such payments
shall remain in effect, and such Lender shall fail to withdraw such notice
within five (5) Business Days after the Borrower's request for such withdrawal;
or (ii) any Lender shall become a Defaulting Lender, the Default Period for such
Defaulting Lender shall remain in effect, and such Defaulting Lender shall fail
to cure the default as a result of which it has become a Defaulting Lender
within five (5) Business Days after the Borrower's request that it cure such
50
default; or (iii) in connection with any proposed amendment, modification,
termination, waiver or consent with respect to any of the provisions hereof as
contemplated by Section 10.5(b), the consent of Requisite Lenders shall have
been obtained but the consent of one or more of such other Lenders (each a
"Non-Consenting Lender") whose consent is required shall not have been obtained;
then, with respect to each such Increased-Cost Lender, Defaulting Lender or
Non-Consenting Lender (the "Terminated Lender"), the Borrower may, by giving
written notice to Administrative Agent and any Terminated Lender of its election
to do so, elect to cause such Terminated Lender (and such Terminated Lender
hereby irrevocably agrees) to assign its outstanding Loans and its Tranche B
Term Loan Commitment, if any, in full to one or more Eligible Assignees (each a
"Replacement Lender") in accordance with the provisions of Section 10.6 and
Terminated Lender shall pay any fees payable thereunder in connection with such
assignment; provided, (1) on the date of such assignment, the Replacement Lender
shall pay to Terminated Lender an amount equal to the sum of (A) an amount equal
to the principal of, and all accrued interest on, all outstanding Loans of the
Terminated Lender, (B) an amount equal to all unreimbursed drawings that have
been funded by such Terminated Lender, together with all then unpaid interest
with respect thereto at such time and (C) an amount equal to all accrued, but
theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.9;
(2) on the date of such assignment, Borrower shall pay any amounts payable to
such Terminated Lender pursuant to Section 2.17(c), 2.18 or 2.19 or otherwise as
if it were a prepayment; and (3) in the event such Terminated Lender is a
Non-Consenting Lender, each Replacement Lender shall consent, at the time of
such assignment, to each matter in respect of which such Terminated Lender was a
Non-Consenting Lender. Upon the prepayment of all amounts owing to any
Terminated Lender and termination of such Terminated Lender's Tranche B Term
Loan Commitment, such Terminated Lender shall no longer constitute a "Lender"
for purposes hereof; provided, any rights of such Terminated Lender to
indemnification hereunder shall survive as to such Terminated Lender.
SECTION 3. CONDITIONS PRECEDENT
3.1 Conditions to Effectiveness. This Agreement shall become
effective upon satisfaction of the following conditions:
(a) Credit Documents. Administrative Agent and Syndication
----------------
Agent shall have received sufficient copies of each Credit Document originally
executed and delivered by each applicable Credit Party for each Lender and
Requisite Lenders and with respect to the Term Loans and Delayed Draw Term
Loans, Requisite Class Lenders shall have executed this Agreement; provided that
--------
for purposes of this Section 3.1(a) "Requisite Lenders" and "Requisite Class
Lenders" shall have the meanings assigned to those terms in the Existing Credit
Agreement.
(b) Organizational Documents; Incumbency. Administrative Agent
------------------------------------
and Syndication Agent shall have received (i) sufficient copies of each
Organizational Document executed (original in the case of Bylaws) and delivered
by each Credit Party, as applicable, and, to the extent applicable, certified as
of a recent date by the appropriate governmental official, for each Lender and
its counsel, each dated the Effective Date or a recent date prior thereto; (ii)
signature and incumbency certificates of the officers of such Person executing
the Credit Documents to which it is a party; (iii) resolutions of the Board of
Directors or similar governing
51
body of each Credit Party approving and authorizing the execution, delivery and
performance of this Agreement and the other Credit Documents to which it is a
party or by which it or its assets may be bound as of the Effective Date,
certified as of the Effective Date by its secretary or an assistant secretary as
being in full force and effect without modification or amendment; (iv) a good
standing certificate from the applicable Governmental Authority of each Credit
Party's jurisdiction of incorporation, organization or formation and in each
jurisdiction in which it is qualified as a foreign corporation or other entity
to do business, each dated a recent date prior to the Effective Date (other than
with respect to Virginia); and (v) such other documents as Administrative Agent,
Syndication Agent or Collateral Agent may reasonably request.
(c) Organizational and Capital Structure. The organizational
------------------------------------
structure and capital structure of Company and its Subsidiaries shall be as set
forth on Schedule 4.2.
(d) Governmental Authorizations and Consents. Each Credit
----------------------------------------
Party shall have obtained all Governmental Authorizations and all consents of
other Persons, in each case that are necessary or advisable in connection with
the transactions contemplated by the Credit Documents and each of the foregoing
shall be in full force and effect and in form and substance reasonably
satisfactory to Syndication Agent and Administrative Agent. All applicable
waiting periods shall have expired without any action being taken or threatened
by any competent authority which would restrain, prevent or otherwise impose
adverse conditions on the transactions contemplated by the Credit Documents and
no action, request for stay, petition for review or rehearing, reconsideration,
or appeal with respect to any of the foregoing shall be pending, and the time
for any applicable agency to take action to set aside its consent on its own
motion shall have expired.
(e) Real Estate Assets. (A) In order to create in favor of
------------------
Collateral Agent, for the benefit of Secured Parties, a valid and, subject to
any filing and/or recording referred to herein, perfected First Priority
security interest in each Existing Mortgaged Property, Collateral Agent shall
have received from Company and each applicable Guarantor on the Effective Date,
or to the extent Company is not able to satisfy such requirements on the
Effective Date, in accordance with Schedule 5.15:
(i) a fully executed and notarized Effective Date
Mortgage Modification in proper form for recording in all appropriate
places in all applicable jurisdictions, with respect to the Existing
Mortgage encumbering each Real Estate Asset listed in Schedule
3.1(e)(A) (each, an "Existing Mortgaged Property");
(ii) (1) endorsements to the existing ALTA mortgagee
title insurance policies or unconditional commitments therefor issued
by a title company with respect to each Existing Mortgaged Property in
form and substance reasonably satisfactory to Collateral Agent and
Syndication Agent and (2) evidence satisfactory to Collateral Agent and
Syndication Agent that such Credit Party has paid to the title company
or to the appropriate governmental authorities all expenses and
premiums of the title company and all other sums required in connection
with the issuance of such endorsement and all recording and stamp taxes
(including mortgage recording and intangible taxes) payable in
connection with recording the Effective Date Mortgage Modifications in
the appropriate real estate records;
52
(B) In order to create in favor of Collateral Agent, for the
benefit of Secured Parties, a valid and, subject to any filing and/or recording
referred to herein, perfected First Priority security interest in each Effective
Date Mortgaged Property, Collateral Agent shall have received from Company and
each applicable Guarantor on the Effective Date, or to the extent Company is not
able to satisfy such requirements on the Effective Date, in accordance with
Schedule 5.15:
(i) a fully executed and notarized Effective Date
Mortgage in proper form for recording in all appropriate places in all
applicable jurisdictions, encumbering each Real Estate Asset listed in
Schedule 3.1(e)(B) (each, an "Effective Date Mortgaged Property");
(ii) an opinion of counsel (which counsel shall be
reasonably satisfactory to Collateral Agent) in each state in which an
Effective Date Mortgaged Property is located with respect to the
enforceability of the form(s) of Mortgages to be recorded in such state
and such other matters as Collateral Agent may reasonably request, in
each case in form and substance reasonably satisfactory to Collateral
Agent;
(iii) in the case of each Leasehold Property that is an
Effective Date Mortgaged Property, a Landlord Agreement, and evidence
that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (a) ALTA mortgagee title insurance policies or
unconditional commitments therefor issued by (a) a title company with
respect to each Effective Date Mortgaged Property, in amounts not less
than the fair market value of each Effective Date Mortgaged Property,
together with a title report issued by a title company with respect
thereto, dated not more than thirty (30) days prior to the Effective
Date and copies of all recorded documents listed as exceptions to title
or otherwise referred to therein, each in form and substance reasonably
satisfactory to Collateral Agent and Syndication Agent and (B) evidence
satisfactory to Collateral Agent and Syndication Agent that such Credit
Party has paid to the title company or to the appropriate governmental
authorities all expenses and premiums of the title company and all
other sums required in connection with the issuance of such title
policy and all recording and stamp taxes (including mortgage recording
and intangible taxes) payable in connection with recording the
Mortgages for each Effective Date Mortgaged Property in the appropriate
real estate records;
(v) evidence of flood insurance with respect to each
Flood Hazard Property that is located in a community that participates
in the National Flood Insurance Program, in each case in compliance
with any applicable regulations of the Board of Governors of the
Federal Reserve System, in form and substance reasonably satisfactory
to Collateral Agent and Syndication Agent; and
(vi) ALTA surveys of all Effective Date Mortgaged
Properties (other than Leasehold Properties) certified to Collateral
Agent and dated not more than thirty (30) days prior to the Effective
Date.
53
(f) Confirmation of Existing Collateral. Credit Parties shall
-----------------------------------
take such actions as Collateral Agent may reasonably request to confirm the
existence of a First Priority Perfected Security interest in the Collateral.
(g) Financial Statements; Effective Date Financial Plan.
---------------------------------------------------
Lenders shall have received from Company (i) the Effective Date Financial
Statements, (ii) copies of all management reports and management letters
prepared for Company and its Subsidiaries by independent public accountants; and
(iii) a financial forecast for Company and its Restricted Subsidiaries, for the
period from Fiscal Year 2001 through and including Fiscal Year 2005 (detailed by
Fiscal Quarters for each such Fiscal Year).
(h) Opinions of Counsel to Credit Parties. Lenders and their
-------------------------------------
respective counsel shall have received originally executed copies of the
favorable written opinions of ▇▇▇▇, ▇▇▇▇, ▇▇▇▇ & Freidenrich LLP, counsel for
Credit Parties, in the form of Exhibit D and as to such other matters as
Administrative Agent or Syndication Agent may reasonably request, and otherwise
in form and substance reasonably satisfactory to each of Administrative Agent,
Syndication Agent and Collateral Agent and their counsel, dated the Effective
Date (and each Credit Party hereby instructs such counsel to deliver such
opinions to Agents and Lenders).
(i) Opinions of Counsel to Syndication Agent. Lenders shall
----------------------------------------
have received originally executed copies of one or more favorable written
opinions of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to Syndication
Agent, Administrative Agent and Collateral Agent and addressed to the Agents and
the Lenders dated as of the Effective Date, in form and substance reasonably
satisfactory to Syndication Agent.
(j) Amendment and Restatement Fee. Company shall have paid to
-----------------------------
Administrative Agent to be distributed to each Lender executing this Agreement a
fee equal to 0.25% of the sum of such Lender's Tranche A Term Loan and Tranche B
Term Loan Commitment.
(k) Borrowing Base Certificate and Effective Date Certificate.
---------------------------------------------------------
Company shall have delivered to Syndication Agent and Administrative Agent an
originally executed Borrowing Base Certificate and Effective Date Certificate,
together with all attachments thereto.
(l) Material Contracts. Company and its Subsidiaries shall
------------------
have made available to Syndication Agent and Administrative Agent, or their
counsel copies of all Material Contracts in effect on the Effective Date.
(m) Material Contract Consents. Company shall have used
--------------------------
reasonable best efforts to obtain a consent to the collateral assignment to
Administrative Agent, Syndication Agent and Lenders of rights existing under all
Material Contracts listed on Schedule 4.17(a), such consent in form and
substance reasonably satisfactory to Administrative Agent and Syndication Agent.
(n) No Litigation. Syndication Agent and Administrative Agent
-------------
shall have received a certificate on behalf of Company from an Authorized
Officer of Company, in
54
form and substance reasonably satisfactory to Syndication Agent and
Administrative Agent, certifying that there are no actions, suits,
investigations, litigations or proceedings or other legal or regulatory
developments, pending or threatened in any court or before any arbitrator or
Governmental Authority that, singly or in the aggregate, materially impairs any
of the transactions contemplated by the Credit Documents, or that could have a
Material Adverse Effect.
(o) Amendments to San ▇▇▇▇ Ground Lease. Company shall have
-----------------------------------
delivered to Lenders copies of the modification to the San ▇▇▇▇ Ground Lease
providing for reductions of not less than $10,000,000 with respect to the
maximum potential liability with respect to letters of credit otherwise required
thereby and Agents shall be reasonably satisfied with the terms of such
amendment.
(p) Transfer of Certain Cash and Cash Equivalents. All Cash
---------------------------------------------
and Cash Equivalents (except for approximately _2,000 left in the Company's UK
Subsidiary's bank account to cover local currency bank fees) owned, held, or
maintained by Unrestricted Subsidiaries as of the Effective Date shall be
transferred to Company or OpCo and deposited in accounts that satisfy the
requirements of the Pledge and Security Agreement.
(q) Prepayments of Existing Loans. Company and OpCo shall have
-----------------------------
made prepayments of the Existing Loans outstanding as of the Effective Date in
an aggregate principal amount of $50,000,000 and such prepayments shall have
been applied pro rata to prepay such Existing Loans.
(r) Other transactions. Agents shall be satisfied with the
------------------
status of the Unrestricted Subsidiaries' assets and operations.
(s) Payment of Accrued Fees and Expenses. Company and OpCo
------------------------------------
shall have paid all fees and expenses accrued pursuant to the Existing Credit
Agreement through the Effective Date.
(t) Completion of Proceedings. All partnership, corporate and
-------------------------
other proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent or Syndication Agent and its counsel shall be
satisfactory in form and substance to Administrative Agent and Syndication Agent
and such counsel, and Administrative Agent, Syndication Agent and such counsel
shall have received all such counterpart originals or certified copies of such
documents as Administrative Agent or Syndication Agent may reasonably request.
Each Lender, by delivering its signature page to this Agreement as of the
Effective Date, shall be deemed to have acknowledged receipt of, and consented
to and approved, each Credit Document and each other document required to be
approved by any Agent, Requisite Lenders or Lenders, as applicable, on or prior
to the Effective Date.
55
3.2 Conditions to Each Credit Extension.
(a) Conditions Precedent. The obligation of each Lender to
--------------------
make a Tranche B Term Loan, on any Credit Date, is subject to the satisfaction,
or waiver in accordance with Section 10.5, of the following conditions
precedent:
(i) Administrative Agent shall have received a fully
executed and delivered Funding Notice and a Borrowing Base Certificate;
(ii) after making any Tranche B Term Loans requested on
such Credit Date, the outstanding Tranche B Term Loans shall not exceed
the Tranche B Term Loan Commitments then in effect and the Total
Utilization Exposure shall not exceed the Borrowing Base as set forth
in the Borrowing Base Certificate delivered in connection with the
making of such Tranche B Term Loans;
(iii) no injunction or other restraining order shall have
been issued and no hearing to cause an injunction or other restraining
order to be issued shall be pending or noticed with respect to any
action, suit or proceeding seeking to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result
of, the transactions contemplated hereby or the making of any Loan;
(iv) as of such Credit Date, the representations and
warranties contained herein and in the other Credit Documents shall be
true and correct in all material respects on and as of that Credit Date
to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties shall
have been true and correct in all material respects on and as of such
earlier date; and
(v) as of such Credit Date, no event shall have occurred
and be continuing or would result from the consummation of the
applicable Credit Extension that would constitute an Event of Default
or a Default.
(b) Notices. Any Notice shall be executed by an Authorized
-------
Officer in a writing delivered to Administrative Agent. In lieu of delivering a
Notice, the Borrower may give Administrative Agent telephonic notice by the
required time of any proposed borrowing, or conversion/continuation, as the case
may be; provided each such notice shall be promptly confirmed in writing by
--------
delivery of the applicable Notice to Administrative Agent on or before the
applicable date of borrowing, or continuation/conversion. Neither Administrative
Agent, nor any Lender shall incur any liability to any Credit Party in acting
upon any telephonic notice referred to above that Administrative Agent believes
in good faith to have been given by a duly authorized officer or other person
authorized on behalf of the Borrower or for otherwise acting in good faith.
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders and Agents to enter into this Agreement
and to make each Credit Extension to be made thereby, each Credit Party
represents and warrants to each
56
Lender and Agents, on the Effective Date and on each Credit Date, that the
following statements are true and correct:
4.1 Organization; Requisite Power and Authority; Qualification. Each
of the Credit Parties (a) is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization as identified in
Schedule 4.1, (b) has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into the Credit Documents to which it is a party and to
carry out the transactions contemplated thereby, and (c) is qualified to do
business and in good standing in every jurisdiction where its assets are located
and wherever necessary to carry out its business and operations, except in
jurisdictions where the failure to be so qualified or in good standing has not
had, and could not be reasonably expected to have, a Material Adverse Effect.
4.2 Capital Stock and Ownership. The Capital Stock of each of the
Credit Parties has been duly authorized and validly issued and is fully paid and
non-assessable. Except as set forth on Schedule 4.2, as of the date hereof,
there is no existing option, warrant, call, right, commitment or other agreement
to which any of the Credit Parties, other than Company, is a party requiring,
and there is no membership interest or other Capital Stock of any of the Credit
Parties, other than Company, outstanding which upon conversion or exchange would
require, the issuance by any of the Credit Parties, other than Company, of any
additional membership interests or other Capital Stock of any of the Credit
Parties, other than Company, or other Securities convertible into, exchangeable
for or evidencing the right to subscribe for or purchase, a membership interest
or other Capital Stock of any of the Credit Parties, other than Company.
Schedule 4.2 correctly sets forth the ownership interest of the Credit Parties
in their respective Subsidiaries as of the Effective Date.
4.3 Due Authorization. The execution, delivery and performance of
the Credit Documents have been duly authorized by all necessary action on the
part of each Credit Party that is a party thereto.
4.4 No Conflict. The execution, delivery and performance by the
Credit Parties of the Credit Documents to which they are parties and the
consummation of the transactions contemplated by the Credit Documents do not and
will not violate any provision of any law or any governmental rule or regulation
applicable to any of the Credit Parties, any of the Organizational Documents of
any of the Credit Parties, or any order, judgment or decree of any court or
other agency of government binding on any of the Credit Parties; conflict with,
result in a breach of or constitute (with due notice or lapse of time or both) a
default under any Contractual Obligation of any of the Credit Parties; result in
or require the creation or imposition of any Lien upon any of the properties or
assets of any of the Credit Parties (other than any Liens created under any of
the Credit Documents in favor of Collateral Agent, on behalf of Secured
Parties); or require any approval of stockholders, members or partners or any
approval or consent of any Person under any Contractual Obligation of any of the
Credit Parties, except for such approvals or consents which will be obtained on
or before the Closing Date and disclosed in writing to Lenders.
4.5 Governmental Consents. The execution, delivery and performance
by Credit Parties of the Credit Documents to which they are parties and the
consummation of the
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transactions contemplated by the Credit Documents do not and will not require
any registration with, consent or approval of, or notice to, or other action to,
with or by, any Governmental Authority except as otherwise set forth on Schedule
4.5, and except for filings and recordings with respect to the Collateral to be
made, or otherwise delivered to Collateral Agent for filing and/or recordation,
on or before the Effective Date.
4.6 Binding Obligation. Each Credit Document has been duly executed
and delivered by each Credit Party that is a party thereto and is the legally
valid and binding obligation of such Credit Party, enforceable against such
Credit Party in accordance with its respective terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles relating
to enforceability.
4.7 Effective Date Financial Statements. The Effective Date
Financial Statements were prepared in conformity with GAAP and fairly present,
in all material respects, the financial position, on a consolidated basis, of
the Persons described in such financial statements as at the respective dates
thereof and the results of operations and cash flows, on a consolidated basis,
of the entities described therein for each of the periods then ended, subject,
in the case of any such unaudited financial statements, to changes resulting
from audit and normal year-end adjustments. As of the Effective Date, neither
Company nor any of its Subsidiaries has any contingent liability or liability
for taxes, long-term lease or unusual forward or long-term commitment that is
not reflected in the Effective Date Financial Statements or the notes thereto
and which in any such case is material in relation to the business, operations,
properties, assets, condition (financial or otherwise) or prospects of Company
and any of its Subsidiaries taken as a whole.
4.8 Projections. On and as of the Effective Date, the financial
forecast of Company and its Restricted Subsidiaries delivered pursuant to
Section 3.1(g) (the "Effective Date Financial Plan") is based on good faith
estimates and assumptions made by the management of Company; provided, the
--------
Effective Date Financial Plan is not to be viewed as representing facts and that
actual results during the period or periods covered by the Effective Date
Financial Plan may differ from Effective Date Financial Plan and that the
differences may be material; provided further, as of the Effective Date,
----------------
management of Company believed that the Effective Date Financial Plan were
reasonable and attainable.
4.9 No Material Adverse Change. Since December 31, 2000, no event
or change has occurred that has caused or evidences, either in any case or in
the aggregate, a Material Adverse Effect.
4.10 No Restricted Junior Payments. Since December 31, 2000, none of
the Credit Parties has directly or indirectly declared, ordered, paid or made,
or set apart any sum or property for, any Restricted Junior Payment or agreed to
do so except as permitted pursuant to Section 6.4.
4.11 Adverse Proceedings, etc. There are no Adverse Proceedings,
individually or in the aggregate, that could reasonably be expected to have a
Material Adverse Effect. None of the Credit Parties is in violation of any
applicable laws (including
58
Environmental Laws) that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, or is subject to or in default with
respect to any final judgments, writs, injunctions, decrees, rules or
regulations of any court or any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, that, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
4.12 Payment of Taxes. Except as otherwise permitted under Section
5.3, all tax returns and reports of Company and its Subsidiaries required to be
filed by any of them have been timely filed, and all taxes shown on such tax
returns to be due and payable and all assessments, fees and other governmental
charges upon Company and its Subsidiaries and upon their respective properties,
assets, income, businesses and franchises which are due and payable have been
paid when due and payable. Company knows of no proposed tax assessment against
Company or any of its Subsidiaries which is not being actively contested by
Company or such Subsidiary in good faith and by appropriate proceedings;
provided, such reserves or other appropriate provisions, if any, as shall be
--------
required in conformity with GAAP shall have been made or provided therefor.
4.13 Properties.
(a) Title. Each Credit Party has (i) good, sufficient and
-----
legal title to (in the case of fee interests in real property), (ii) valid
leasehold interests in (in the case of leasehold interests in real or personal
property), and (iii) good title to (in the case of all other personal property),
all of their respective properties and assets reflected in their respective
Effective Date Financial Statements referred to in Section 4.7 and in the most
recent financial statements delivered pursuant to Section 5.1, in each case
except for assets disposed of since the date of such financial statements in the
ordinary course of business or as otherwise permitted under Section 6.9. Except
as permitted by this Agreement, all such properties and assets are free and
clear of Liens.
(b) Real Estate. As of the Effective Date, Schedule 4.13
-----------
contains a true, accurate and complete list of (i) all Real Estate Assets, (ii)
all leases, subleases or assignments of leases (together with all amendments,
modifications, supplements, renewals or extensions of any thereof) affecting
each Real Estate Asset of any Credit Party, regardless of whether such Credit
Party is the landlord or tenant (whether directly or as an assignee or successor
in interest) under such lease, sublease or assignment and (iii) all basic rental
lease payment obligations of the Company and its Subsidiaries with respect to
their domestic IBX Facilities. Except as specified in Schedule 4.13, each
agreement listed in clause (ii) of the immediately preceding sentence is in full
force and effect and Company does not have knowledge of any default that has
occurred and is continuing thereunder, and each such agreement constitutes the
legally valid and binding obligation of each applicable Credit Party,
enforceable against such Credit Party in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or by
equitable principles.
59
4.14 Collateral.
(a) Attachment and Perfection. The execution and delivery of
-------------------------
the Collateral Documents by Credit Parties, together with the actions taken on
or prior to the date hereof , are effective to create in favor of Collateral
Agent, on behalf of Secured Parties, as security for their respective
Obligations, a valid and perfected First Priority Lien on all of the Collateral,
and all filings and other actions necessary or desirable to perfect and maintain
the perfection and First Priority status of such Liens have been duly made or
taken and remain in full force and effect, other than (i) the actions required
under federal law to register and record interests in intellectual property and
(ii) the periodic filing of UCC continuation statements in respect of UCC
financing statements filed by or on behalf of Collateral Agent.
(b) Governmental Approvals, Etc. No authorization, approval or
---------------------------
other action by, and no notice to or filing with, any Governmental Authority or
regulatory body is required for either (i) the pledge or grant by any Credit
Party of the Liens purported to be created in favor of Collateral Agent pursuant
to any of the Collateral Documents or (ii) the exercise by Collateral Agent of
any rights or remedies in respect of any Collateral (whether specifically
granted or created pursuant to any of the Collateral Documents or created or
provided for by applicable law), except for filings or recordings as may be
required in connection with the disposition of any Investment Related Property,
or by laws generally affecting the offering and sale of Securities.
(c) Filings. Except with respect to any Permitted Lien and
-------
such as may have been filed in favor of Collateral Agent, no effective UCC
financing statement, fixture filing or other instrument similar in effect
covering all or any part of the Collateral is on file in any filing or recording
office.
(d) Disclosure. All information supplied to Collateral Agent
----------
by or on behalf of any Credit Party with respect to any of the Collateral (in
each case taken as a whole with respect to any particular Collateral) is
accurate and complete in all material respects.
(e) Cash and Cash Equivalents. Without limiting the generality
-------------------------
to the foregoing, representation and warranties, each Credit Party represents
and warrants that all of its Cash and Cash Equivalents shall be maintained in
accounts in existence as of the Effective Date in which the Collateral Agent has
a First Priority perfected security interest or such other accounts as may be
pre- approved by the Collateral Agent, and in which Collateral Agent has a First
Priority perfected security interest.
4.15 Environmental Matters. Neither any of the Credit Parties nor
any of their respective Facilities or operations are subject to any outstanding
written order, consent decree or settlement agreement with any Person relating
to any Environmental Law, any Environmental Claim, or any Hazardous Materials
Activity that, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect. None of the Credit Parties has received any
letter or request for information under Section 104 of the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. (S) 9604) or
any comparable state law. There are and, to each of the Credit Parties'
knowledge, have been, no conditions, occurrences, or Hazardous Materials
Activities which could reasonably be expected
60
to form the basis of an Environmental Claim against any of the Credit Parties
that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Neither any of the Credit Parties nor, to any Credit
Party's knowledge, any predecessor of any of the Credit Parties has filed any
notice under any Environmental Law indicating past or present treatment of
Hazardous Materials at any Facility, and none of the Credit Parties' operations
involves the generation, transportation, treatment, storage or disposal of
hazardous waste, as defined under 40 C.F.R. Parts 260-270 or any state
equivalent. Compliance with all current or reasonably foreseeable future
requirements pursuant to or under Environmental Laws could not be reasonably
expected to have, individually or in the aggregate, a Material Adverse Effect.
No event or condition has occurred or is occurring with respect to any of the
Credit Parties or their respective Facilities relating to any Environmental Law,
any Release of Hazardous Materials, or any Hazardous Materials Activity which
individually or in the aggregate has had, or could reasonably be expected to
have, a Material Adverse Effect.
4.16 No Defaults. None of the Credit Parties is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any of its Contractual Obligations, and no condition
exists which, with the giving of notice or the lapse of time or both, could
constitute such a default, except where the consequences, direct or indirect, of
such default or defaults, if any, could not reasonably be expected to have a
Material Adverse Effect.
4.17 Material Contracts. (a) Schedule 4.17(a) contains a true,
correct and complete list of all the Material Contracts in effect on the
Effective Date, and except as described thereon, all such Material Contracts are
in full force and effect and no material defaults currently exist thereunder or
under any lease governing Leasehold Property.
(b) Each Credit Party owns or possesses all the patents,
trademarks, service marks, trade names, copyrights and licenses, and all rights
with respect to the foregoing, necessary for the conduct of its business as
presently conducted without any known conflict with the rights of others.
Schedule 4.17(b) accurately and completely lists all Intellectual Property owned
or possessed by or licensed to such Credit Party.
4.18 Governmental Regulation. None of the Credit Parties is subject
to regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act or the Investment Company Act of 1940 or under any other federal or
state statute or regulation which may limit its ability to incur Indebtedness or
which may otherwise render all or any portion of the Obligations unenforceable.
None of the Credit Parties is a "registered investment company" or a company
"controlled" by a "registered investment company" or a "principal underwriter"
of a "registered investment company" as such terms are defined in the Investment
Company Act of 1940.
4.19 Margin Stock. None of the Credit Parties is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. No part of
the proceeds of the Loans made to such Credit Party will be used to purchase or
carry any such margin stock or to extend credit to others for the purpose of
purchasing or carrying any such margin stock or for any purpose that violates,
or is
61
inconsistent with, the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
4.20 Employee Matters. None of the Credit Parties is engaged in any
unfair labor practice that could reasonably be expected to have a Material
Adverse Effect. There is (a) no unfair labor practice complaint pending against
any of the Credit Parties, or to the best knowledge of the Credit Parties,
threatened against any of them before the National Labor Relations Board and no
grievance or arbitration proceeding arising out of or under any collective
bargaining agreement that is so pending against any of the Credit Parties or to
the best knowledge of the Credit Parties, threatened against any of them, (b) no
strike or work stoppage in existence or threatened involving any of the Credit
Parties that could reasonably be expected to have a Material Adverse Effect, and
(c) to the best knowledge of the Credit Parties, no union representation
question existing with respect to the employees of any of the Credit Parties
and, to the best knowledge of the Credit Parties, no union organization activity
that is taking place, except (with respect to any matter specified in clause
(a), (b) or (c) above, either individually or in the aggregate) such as is not
reasonably likely to have a Material Adverse Effect.
4.21 Employee Benefit Plans. Each of the Credit Parties and each of
their respective ERISA Affiliates are in compliance with all applicable
provisions and requirements of ERISA and the Internal Revenue Code and the
regulations and published interpretations thereunder with respect to each
Employee Benefit Plan, and have performed all their obligations under each
Employee Benefit Plan. Each Employee Benefit Plan which is intended to qualify
under Section 401(a) of the Internal Revenue Code is so qualified. No material
liability to the PBGC (other than required premium payments), the Internal
Revenue Service, any Employee Benefit Plan or any Trust established under Title
IV of ERISA has been or is expected to be incurred by any of the Credit Parties
or any of their ERISA Affiliates. No ERISA Event has occurred or is reasonably
expected to occur. Except to the extent required under Section 4980B of the
Internal Revenue Code or similar state laws, no Employee Benefit Plan provides
health or welfare benefits (through the purchase of insurance or otherwise) for
any retired or former employee of any of the Credit Parties or any of their
respective ERISA Affiliates. As of the most recent valuation date for any
Pension Plan, the amount of unfunded benefit liabilities (as defined in Section
4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans
(excluding for purposes of such computation any Pension Plans with respect to
which assets exceed benefit liabilities), does not exceed $500,000. As of the
most recent valuation date for each Multiemployer Plan for which the actuarial
report is available, the potential liability of the Credit Parties and their
respective ERISA Affiliates for a complete withdrawal from such Multiemployer
Plan (within the meaning of Section 4203 of ERISA), when aggregated with such
potential liability for a complete withdrawal from all Multiemployer Plans,
based on information available pursuant to Section 4221(e) of ERISA, does not
exceed $1,500,000. Each of the Credit Parties and each of their ERISA Affiliates
have complied with the requirements of Section 515 of ERISA with respect to each
Multiemployer Plan and are not in material "default" (as defined in Section
4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan.
4.22 Solvency. Each Credit Party is and, upon the incurrence of any
Obligation by such Credit Party on any date on which this representation and
warranty is made, will be, Solvent.
62
4.23 Compliance with Statutes, etc. Each of the Credit Parties is in
compliance with all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all Governmental Authorities, in respect of
the conduct of its business and the ownership of its property (including
compliance with all applicable Environmental Laws with respect to any Real
Estate Asset or governing its business and the requirements of any permits
issued under such Environmental Laws with respect to any such Real Estate Asset
or the operations of Company or any of its Subsidiaries), except such
non-compliance that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
4.24 Disclosure. No representation or warranty of any Credit Party
contained in any Credit Document or, except as set forth on Schedule 4.24, in
any other documents, certificates or written statements furnished to Lenders by
or on behalf of any Credit Party for use in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to
state a material fact (known to each Credit Party, in the case of any document
not furnished by any of them) necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in
which the same were made. Any projections and pro forma financial information
contained in such materials are based upon good faith estimates and assumptions
believed by each Credit Party to be reasonable at the time made, it being
recognized by Lenders that such projections as to future events are not to be
viewed as facts and that actual results during the period or periods covered by
any such projections may differ from the projected results. There are no facts
known (or which should upon the reasonable exercise of diligence be known) to
any Credit Party (other than matters of a general economic nature) that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect and that have not been disclosed herein or in such other
documents, certificates and statements furnished to Lenders for use in
connection with the transactions contemplated hereby.
SECTION 5. AFFIRMATIVE COVENANTS
Each Credit Party covenants and agrees that so long as any Tranche B
Term Loan Commitment is in effect and until payment in full of all Obligations
each Credit Party shall perform, and shall cause each of its Restricted
Subsidiaries to perform, all covenants in this Section 5.
5.1 Financial Statements and Other Reports. Company will deliver
to Administrative Agent and Lenders:
(a) Monthly Reports. As soon as available, and in any event
---------------
within thirty (30) days after the end of each month ending after the Closing
Date, (i) the consolidated balance sheet of Company and its Restricted
Subsidiaries as at the end of such month, (ii) the related consolidated
statements of income and cash flows of Company and its Restricted Subsidiaries
and (iii) a statement setting forth the location and amount of all Cash and Cash
Equivalents of Company and its Restricted Subsidiaries, setting forth in each
case under clauses (i), (ii) and (iii) in comparative form reasonably acceptable
to the Agents and Joint Lead Arrangers the corresponding figures for the
corresponding periods of the previous Fiscal Year and the corresponding figures
from the Financial Plan for the current Fiscal Year, all in reasonable detail,
together with a Financial Officer Certification with respect thereto;
63
(b) Quarterly Financial Statements. As soon as available, and
------------------------------
in any event within thirty (30) days after the end of the first three Fiscal
Quarters of each Fiscal Year and within sixty (60) days after the end of the
last Fiscal Quarter of each Fiscal Year, the consolidated and consolidating
balance sheet of Company and its Restricted Subsidiaries as at the end of such
Fiscal Quarter and the related consolidated (and with respect to statements of
income, consolidating) statements of income and cash flows of Company and its
Restricted Subsidiaries for such Fiscal Quarter, setting forth in each case in
comparative form reasonably acceptable to the Joint Lead Arrangers the
corresponding figures for the corresponding periods of the previous Fiscal Year
and the corresponding figures from the Financial Plan for the current Fiscal
Year and the Closing Financial Plan, together with (1) a Financial Officer
Certification, (2) a supplement, reasonably acceptable to the Joint Lead
Arrangers, to the publicly filed Narrative Report discussing additional material
information pertaining specifically to the financial statements listed above as
distinguished from the analogous publicly filed financial statements of Company
and its Subsidiaries and (3) revised Schedules 4.1 and 4.2 (if necessary)
reflecting all changes in the organizational structure and capital structure of
Company and its Restricted Subsidiaries since the delivery of the last quarterly
financial information, which revised Schedules 4.1 and 4.2 will be deemed to
amend the then-existing Schedules 4.1 and 4.2 for all purposes under this
Agreement;
(c) Annual Financial Statements. As soon as available, and in
---------------------------
any event within sixty (60) days after the end of each Fiscal Year, (i) the
consolidated and consolidating balance sheet of Company and its Restricted
Subsidiaries as at the end of such Fiscal Year and the related consolidated (and
with respect to statements of income, consolidating) statements of income,
stockholders' equity and cash flows of Company and its Restricted Subsidiaries
for such Fiscal Year, setting forth in each case in comparative form the
corresponding figures for the previous Fiscal Year and the corresponding figures
from the Financial Plan for the Fiscal Year covered by such financial statements
and the Closing Financial Plan, in reasonable detail, together with a Financial
Officer Certification and a Narrative Report with respect thereto; (ii) with
respect to each consolidated financial statements a report thereon of
PricewaterhouseCoopers LLP or other independent certified public accountants of
recognized national standing selected by Company, and reasonably satisfactory to
Administrative Agent (which report shall be unqualified as to going concern and
scope of audit, and shall state that such consolidated financial statements
fairly present, in all material respects, the consolidated financial position of
Company and its Restricted Subsidiaries, as at the dates indicated and the
results of their operations and their cash flows for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years (except as
otherwise disclosed in such financial statements) and that the examination by
such accountants in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards) together
with a written statement by such independent certified public accountants
stating that their audit examination has included a review of the terms of
Sections 6.6 and 6.7 the Credit Documents, whether, in connection therewith, any
condition or event that constitutes a Default or an Event of Default under
Section 6.6 or 6.7 has come to their attention and, if such a condition or event
has come to their attention, specifying the nature and period of existence
thereof, and that nothing has come to their attention that causes them to
believe that the information contained in any Compliance Certificate is not
correct or that the matters set forth in such Compliance Certificate are not
stated in accordance with the terms hereof and (iii) revised Schedules 4.1 and
4.2 (if necessary) reflecting all changes in the organizational structure and
64
capital structure of Company and its Restricted Subsidiaries since the delivery
of the last quarterly financial information, which revised Schedules 4.1 and 4.2
will be deemed to amend the then-existing Schedules 4.1 and 4.2 for all purposes
under this Agreement; provided, that Company and its Restricted Subsidiaries
shall not change their organizational structure or state of organization,
without the prior written consent of the Requisite Lenders.
(d) Compliance Certificate. Together with each delivery of
----------------------
financial statements of Company and its Restricted Subsidiaries pursuant to
Sections 5.1(a), 5.1(b) and 5.1(c) and, with respect to compliance with Section
6.6(a) for the month of April 2002, by May 15, 2002, a completed Compliance
Certificate duly executed by an Authorized Officer;
(e) Borrowing Base Certificate. (i) On the Effective Date,
--------------------------
(ii) within thirty (30) days after the end of each Fiscal Quarter, (iii)
concurrently with each Notice of Borrowing and (iv) concurrently with any
prepayment pursuant to Section 2.12(d), a duly executed and completed
certificate of an Authorized Officer ("Borrowing Base Certificate") in
substantially the form of Exhibit L setting forth the Borrowing Base as of the
Effective Date, the last day of each Fiscal Quarter, the date of such Notice of
Borrowing, or other date as may be reasonably requested by Administrative Agent,
Syndication Agent or Collateral Agent, each such Certificate to be certified as
complete and correct on behalf of Company by an Authorized Officer of Company,
together with such supporting documentation and additional reports with respect
to the Borrowing Base as Administrative Agent shall reasonably request;
(f) Statements of Reconciliation after Change in Accounting
-------------------------------------------------------
Principles. If, as a result of any change in accounting principles and policies
----------
from those used in the preparation of the Effective Date Financial Statements,
the consolidated financial statements of Company and its Restricted Subsidiaries
delivered pursuant to Section 5.1(b) or 5.1(c) will differ in any material
respect from the consolidated financial statements that would have been
delivered pursuant to such subdivisions had no such change in accounting
principles and policies been made, then, together with the first delivery of
such financial statements after such change, one or more a statements of
reconciliation for all such prior financial statements in form and substance
satisfactory to Administrative Agent;
(g) SEC Reports. Promptly upon their becoming available,
-----------
copies of (i) all financial statements, reports, notices and proxy statements
sent or made available generally by Company to its security holders acting in
such capacity or by any Subsidiary of Company to its security holders other than
Company or another Subsidiary of Company, (ii) all regular and periodic reports
(but not including, unless requested by Administrative Agent, routine reports
regularly filed with the FCC and state commissions with jurisdiction over
telecommunications matters) and all registration statements (other than on Form
S-8 or a similar form) and prospectuses, if any, filed by Company or any of its
Restricted Subsidiaries with any securities exchange or with the Securities and
Exchange Commission or any governmental or private regulatory authority, and
(iii) all press releases and other statements made available generally by
Company or any of its Restricted Subsidiaries to the public concerning material
developments in the business of Company or any of its Restricted Subsidiaries;
(h) Notice of Default. Promptly upon any officer of Company
-----------------
obtaining knowledge (i) of any condition or event that constitutes a Default or
an Event of
65
Default or that notice has been given to Company with respect thereto; (ii) that
any Person has given any notice to Company or any of its Subsidiaries or taken
any other action with respect to any event or condition set forth in Section
8.1(b); (iii) of any condition or event of a type required to be disclosed in a
current report on Form 8-K of the Securities and Exchange Commission; or (iv) of
the occurrence of any event or change that has caused or evidences, either in
any case or in the aggregate, a Material Adverse Effect, a certificate of its
Authorized Officers specifying the nature and period of existence of such
condition, event or change, or specifying the notice given and action taken by
any such Person and the nature of such claimed Event of Default, Default,
default, event or condition, and what action Company has taken, is taking and
proposes to take with respect thereto;
(i) Notice of Litigation. Promptly upon any officer of Company
--------------------
obtaining knowledge of the institution of, or non-frivolous threat of, any
Adverse Proceeding not previously disclosed in writing by Company to Lenders, or
any material development in any Adverse Proceeding that, in the case of either
(i) or (ii) if adversely determined, could be reasonably expected to have a
Material Adverse Effect, or seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result of, the
transactions contemplated hereby or any of the other Credit Documents, written
notice thereof together with such other information as may be reasonably
available to Company to enable Lenders and their counsel to evaluate such
matters;
(j) ERISA. Promptly upon becoming aware of the occurrence of
-----
or forthcoming occurrence of any ERISA Event, a written notice specifying the
nature thereof, what action Company, any of its Restricted Subsidiaries or any
of their respective ERISA Affiliates has taken, is taking or proposes to take
with respect thereto and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor or the PBGC with respect
thereto; and with reasonable promptness, copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed by Company, any of
its Restricted Subsidiaries or any of their respective ERISA Affiliates with the
Internal Revenue Service with respect to each Pension Plan; all notices received
by Company, any of its Restricted Subsidiaries or any of their respective ERISA
Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event; and
copies of such other documents or governmental reports or filings relating to
any Employee Benefit Plan as Administrative Agent shall reasonably request;
(k) Financial Plan. As soon as available and in any event no
--------------
later than sixty (60) days following the beginning of each Fiscal Year, a
consolidated plan and financial forecast for such Fiscal Year and the lesser of
the next three (3) succeeding Fiscal Years and the period remaining through
December 15, 2005 (a "Financial Plan"), including a forecasted consolidated
balance sheet and forecasted consolidated statements of income and cash flows of
Company and its Restricted Subsidiaries for each such Fiscal Year, together with
pro forma Compliance Certificates for each such Fiscal Year and an explanation
of the assumptions on which such forecasts are based and forecasted consolidated
statements of income and cash flows of Company and its Restricted Subsidiaries
for each month of each such Fiscal Year, together with an explanation of the
assumptions on which such forecasts are based;
(l) Insurance Report. As soon as practicable and in any event
----------------
by the last day of each Fiscal Year, commencing on December 31, 2001, a report
in form and substance
66
satisfactory to Administrative Agent and Collateral Agent outlining all material
insurance coverage maintained as of the date of such report by Company and its
Restricted Subsidiaries and all material insurance coverage planned to be
maintained by Company and its Restricted Subsidiaries in the immediately
succeeding Fiscal Year;
(m) Notice of Change in Board of Directors. With reasonable
--------------------------------------
promptness, written notice of any change in the board of directors (or similar
governing body) of Company or OpCo;
(n) Annual UCC Questionnaire. By the last day of each Fiscal
------------------------
Year, commencing on December 31, 2001, a completed UCC Questionnaire in form and
substance satisfactory to Collateral Agent;
(o) Notice Regarding Material Contracts. Promptly, and in any
-----------------------------------
event within ten (10) Business Days (i) after any Material Contract of Company
or any of its Restricted Subsidiaries is terminated prior to its scheduled term
or amended in a manner that is materially adverse to Company or such Restricted
Subsidiary, as the case may be, or (ii) any new Material Contract is entered
into, a written statement describing such event, with copies of such material
amendments or new contracts, delivered to Administrative Agent (to the extent
(1) such information is not disclosed or incorporated by reference in any filing
with the Securities and Exchange Commission, and (2) such delivery is permitted
by the terms of any such Material Contract, provided, no such prohibition on
delivery shall be effective if it were bargained for by Company or its
applicable Restricted Subsidiary with the intent of avoiding compliance with
this Section 5.1(o)), and an explanation of any actions being taken with respect
thereto;
(p) Environmental Reports and Audits. As soon as practicable
--------------------------------
following receipt thereof, copies of all environmental audits and reports with
respect to environmental matters at any Facility or which relate to any
environmental liabilities of Company or its Restricted Subsidiaries which, in
any such case, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect;
(q) Additional Reporting Requirements. Within thirty (30) days
---------------------------------
after the last day of each month, such information described on Schedule 5.1 for
the month most recently ended.
(r) Notice of Certain Payments; Cash Balances. On the date any
-----------------------------------------
Credit Party makes a payment or series of related payments or reimbursements or
series of related reimbursements to any Person or related group of Persons
(other than to landlords under leases existing on the Effective Date or to a
Credit Party or the Lenders pursuant to the terms of this Agreement) or
otherwise transfers Cash or Cash Equivalents, in any such case, in an aggregate
amount equal to or greater than $10,000,000 per transfer or in a series of
related transfers, Company shall give notice thereof to Lenders. Upon the
request of any Agent at any time, Company shall provide detailed information
regarding Company's and its Restricted Subsidiaries's Cash and Cash Equivalents,
including, without limitation amounts and locations of such Cash and Cash
Equivalents.
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(s) Other Information. With reasonable promptness, such other
-----------------
information and data with respect to Company or any of its Subsidiaries as from
time to time may be reasonably requested by Administrative Agent, Syndication
Agent, Collateral Agent or any Lender.
5.2 Existence. Except as otherwise permitted under Section 6.9, each
Credit Party will, and will cause each of its Restricted Subsidiaries to, at all
times preserve and keep in full force and effect its existence and all rights
and franchises, licenses and permits material to its business; provided, no
--------
Credit Party or any of its Restricted Subsidiaries shall be required to preserve
any such existence, right or franchise, licenses and permits if such Person's
board of directors (or similar governing body) shall determine in good faith
that the preservation thereof is no longer desirable in the conduct of the
business of such Person, and that the loss thereof is not disadvantageous in any
material respect to such Person or to Lenders.
5.3 Payment of Taxes and Claims. Each Credit Party will, and will
cause each of its Subsidiaries to, pay all Taxes imposed upon it or any of its
properties or assets or in respect of any of its income, businesses or
franchises before any penalty or fine accrues thereon, and all claims (including
claims for labor, services, materials and supplies) for sums that have become
due and payable and that by law have or may become a Lien upon any of its
properties or assets, prior to the time when any penalty or fine shall be
incurred with respect thereto; provided, no such Tax or claim need be paid if it
--------
is being contested in good faith by appropriate proceedings promptly instituted
and diligently conducted, so long as adequate reserve or other appropriate
provision, as shall be required in conformity with GAAP shall have been made
therefor, and in the case of a charge or claim which has or may become a Lien
against any of the Collateral, such contest proceedings conclusively operate to
stay the sale of any portion of the Collateral to satisfy such Tax or claim. No
Credit Party will, nor will it permit any of its Subsidiaries to, file or
consent to the filing of any consolidated income Tax return with any Person
(other than Company or any of its Subsidiaries).
5.4 Maintenance of Properties. Each Credit Party will, and will
cause each of its Subsidiaries to, maintain or cause to be maintained in good
repair, working order and condition, ordinary wear and tear excepted, all
material properties used or useful in the business of any Credit Party and from
time to time will make or cause to be made all appropriate repairs, renewals and
replacements thereof, and each Credit Party shall defend any Collateral against
all Persons at any time claiming an interest therein.
5.5 Insurance. Company will maintain or cause to be maintained, with
financially sound and reputable insurers, such comprehensive general liability
insurance, third party property damage insurance, business interruption
insurance, workers' compensation and employer's liability insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of Company and its Restricted Subsidiaries as
may be satisfactory to the Collateral Agent, but in any event not less than as
shown on Schedule 5.5 hereto and made a part hereof, and in each case in such
amounts (giving effect to self-insurance in amounts acceptable to the Collateral
Agent), with such deductibles and limits, covering such risks and otherwise on
such terms and conditions as shall be acceptable to the Collateral Agent.
Without limiting the generality of the foregoing, Company will maintain or cause
to be maintained: (a) flood insurance with respect to each Flood Hazard Property
that is
68
located in a community that participates in the National Flood Insurance
Program, in each case in compliance with any applicable regulations of the Board
of Governors of the Federal Reserve System, (b) insurance with respect to
property owned by third parties and maintained at IBX Facilities with such
insurance companies, in such amounts, with such deductibles, and covering such
risks as are acceptable to the Collateral Agent, Administrative Agent and
Syndication Agent and (c) replacement value casualty insurance on an all-risks
basis on the Collateral under such policies of insurance, with such insurance
companies, in such amounts, with such deductibles, and covering such risks and
otherwise on such terms and conditions as are acceptable to the Collateral
Agent; (d) with respect to each policy of insurance, a waiver of subrogation in
favor of the Collateral Agent and the Lenders; and (e) policies of insurance
that (i) insure the interests of the Collateral Agent and the Lenders and their
respective Affiliates regardless of any breach of or violation by any Credit
Party of any warranties, declarations or conditions contained therein, (ii)
contain cross liability clauses, (iii) provide that the insurance shall be
primary and without right of contribution from any other insurance which may be
available to any of the Collateral Agent or Lenders, (iv) provide that the
Collateral Agent and the Lenders have no responsibility, obligation or liability
for premiums, commissions, assessments or calls in connection with such
insurance. Each such policy of liability insurance shall name each of the
Collateral Agent and the Lenders and their respective Affiliates, as additional
insureds thereunder and in the case of each business interruption and casualty
insurance policy, contain a standard lender's loss payable clause or
endorsement, satisfactory in form and substance to Collateral Agent, that names
Collateral Agent, on behalf of Lenders, as the loss payee thereunder for any
covered loss in excess of $500,000. Each such policy of insurance shall provide
for at least thirty (30) days' prior written notice to Collateral Agent of any
reduction of coverage or cancellation of such policy. On the Closing Date and
within thirty (30) days prior to each anniversary of the policies of insurance
required to be maintained pursuant to this Section 5.5, the Borrower shall
deliver or cause to be delivered to the Collateral Agent (which shall promptly
furnish a copy thereof to each of the Lenders) an insurance broker's opinion
letter from the Borrower's independent insurance agent confirming that the
insurance premiums with respect to the policies of insurance required to be
maintained pursuant to this Section 5.5 have been paid, that such policies are
in full force and effect, and that such policies meet the insurance requirements
set forth in this Section 5.5. The Borrower shall also furnish or cause to be
furnished to the Collateral Agent (which shall promptly furnish a copy or copies
thereof to each of the Lenders) a certificate or certificates of insurance (i)
evidencing that all the coverages required to be maintained pursuant to this
Section 5.5 have been renewed and continue to be in full force and effect for
such period as shall be then stipulated, (ii) specifying the insurers with whom
the insurances are carried and (iii) containing such other certifications and
undertakings as are customarily provided to Lenders, as reasonably requested by
the Collateral Agent or any Lender.
5.6 Books and Records; Inspections; Lenders Meetings. (a) Each
Credit Party will, and will cause each of its Restricted Subsidiaries and the
San ▇▇▇▇ Subsidiary to, keep proper books of record and account in which full,
true and correct entries are made of all dealings and transactions in relation
to its business and activities. Each Credit Party will, and will cause each of
its Subsidiaries to, permit any authorized representatives, including, without
limitation, third party industry consultants designated or engaged by any Lender
or the Collateral Agent (or, after the occurrence and during the continuance of
any Event of Default, any Lender) to visit and inspect any of the facilities of
any Credit Party and any of its respective Subsidiaries, to inspect, copy and
take extracts from its and their financial and accounting records, to audit
69
their assets and equipment and to discuss its and their affairs, finances and
accounts with its and their officers and independent public accountants, all
upon reasonable notice and at such reasonable times during normal business hours
and as often as may reasonably be requested. Company will either pay such
authorized representative's or consultant's reasonable fees and expenses or
reimburse such Lender or Collateral Agent with respect to such authorized
representative's or consultant's reasonable costs and expenses. Company will,
upon the request of Administrative Agent or Requisite Lenders, participate in a
meeting of Agents and Lenders once during each Fiscal Year to be held at
Company's corporate offices (or at such other location as may be agreed to by
Company and Administrative Agent) at such time as may be agreed to by Company
and Administrative Agent.
(b) Credit Parties agree to cooperate with third party
industry consultants engaged by Lenders or their representatives to analyze
Company's business plan and at the election of Agents, either pay such
consultant's reasonable fees and expenses or reimburse Lenders or such
representative with respect to such consultant's reasonable costs and expenses.
5.7 Compliance with Laws. Each Credit Party will comply, and shall
cause each of its Subsidiaries and all other Persons, if any, on or occupying
any Facility to comply, with the requirements of all applicable laws, rules,
regulations and orders of any Governmental Authority (including all
Environmental Laws), noncompliance with which could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
5.8 Environmental.
(a) Environmental Disclosure. Company will deliver to
------------------------
Administrative Agent and Lenders:
(i) as soon as practicable following receipt thereof,
copies of all environmental audits, investigations, analyses and
reports of any kind or character, whether prepared by personnel of
Company or any of its Subsidiaries or any Unrestricted Subsidiaries or
by independent consultants, Governmental Authorities or any other
Persons, with respect to significant environmental matters at any
Facility or with respect to any Environmental Claims;
(ii) promptly upon the occurrence thereof, written notice
describing in reasonable detail (A) any Release required to be reported
to any federal, state or local governmental or regulatory agency under
any applicable Environmental Laws and any remedial action taken by
Company or any other Person in response thereto, (B) any Hazardous
Materials Activities the existence of which has a reasonable
possibility of resulting in one or more Environmental Claims having,
individually or in the aggregate, a Material Adverse Effect, (C) any
Environmental Claims that, individually or in the aggregate, have a
reasonable possibility of resulting in a Material Adverse Effect, and
(D) Company's discovery of any occurrence or condition on any real
property adjoining or in the vicinity of any Facility that could cause
such Facility or any part thereof to be subject to any material
restrictions on the ownership, occupancy, transferability or use
thereof under any Environmental Laws;
70
(iii) as soon as practicable following the sending or
receipt thereof by Company or any of its Subsidiaries or any
Unrestricted Subsidiaries, a copy of any and all written communications
with respect to (A) any Environmental Claims that, individually or in
the aggregate, have a reasonable possibility of giving rise to a
Material Adverse Effect, (B) any Release required to be reported to any
federal, state or local governmental or regulatory agency, and (C) any
request for information from any governmental agency that suggests such
agency is investigating whether Company or any of its Subsidiaries or
any Unrestricted Subsidiaries may be potentially responsible for any
Hazardous Materials Activity;
(iv) prompt written notice describing in reasonable
detail (A) any proposed acquisition of stock, assets, or property by
Company or any of its Subsidiaries or any Unrestricted Subsidiaries
that could reasonably be expected to (i) expose Company or any of its
Subsidiaries to, or result in, Environmental Claims that could
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect or (ii) affect the ability of Company or any of
its Subsidiaries or any Unrestricted Subsidiaries to maintain in full
force and effect all material Governmental Authorizations required
under any Environmental Laws for their respective operations and (B)
any proposed action to be taken by Company or any of its Subsidiaries
or any Unrestricted Subsidiaries to modify current operations in a
manner that could reasonably be expected to subject Company or any of
its Subsidiaries or any Unrestricted Subsidiaries to any additional
material obligations or requirements under any Environmental Laws; and
(v) with reasonable promptness, such other documents and
information as from time to time may be reasonably requested by
Administrative Agent or Collateral Agent in relation to any matters
disclosed pursuant to this Section 5.8(a).
(b) Hazardous Materials Activities, Etc. Each Credit Party
-----------------------------------
shall promptly take, and shall cause each of its Subsidiaries or any
Unrestricted Subsidiaries promptly to take, any and all actions necessary to
cure any violation of applicable Environmental Laws by such Credit Party or its
Subsidiaries or any Unrestricted Subsidiaries that could reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect, and make
an appropriate response to any Environmental Claim against such Credit Party or
any of its Subsidiaries or any Unrestricted Subsidiaries and discharge any
obligations it may have to any Person thereunder where failure to do so could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
5.9 Subsidiaries. In the event that, after the Effective Date, any
Person becomes a Restricted Subsidiary of Company or a first tier Foreign
Subsidiary, Company shall promptly (i) deliver, or cause to be delivered to
Collateral Agent certificates (accompanied by irrevocable undated stock powers,
duly endorsed in blank and otherwise satisfactory in form and substance to
Collateral Agent) representing the Capital Stock of such Subsidiary, which shall
be pledged pursuant to the Pledge and Security Agreement and deliver, or cause
to be delivered, to Collateral Agent such other additional agreements or
instruments, each in form and substance, as may be necessary or desirable to
create in favor of Collateral Agent, for the benefit of the Secured Parties, a
valid and perfected First Priority security interest in all of the Capital Stock
of
71
such Subsidiary (65% in the case of a Foreign Subsidiary), (ii) cause each such
Domestic Subsidiary to become a Guarantor hereunder and a Grantor under the
Pledge and Security Agreement by executing and delivering to Administrative
Agent and Collateral Agent a Counterpart Agreement duly executed by an
Authorized Officer of such Domestic Subsidiary, and (iii) take all such actions
and execute and deliver, or cause to be executed and delivered, all such
documents, instruments, agreements, and certificates as may be reasonably
requested by any Agent. With respect to each such Subsidiary, Company shall
promptly send to Administrative Agent and Collateral Agent written notice
setting forth with respect to such Person (i) the date on which such Person
became a Subsidiary of Company, and (ii) all of the data required to be set
forth in Schedule 4.1 with respect to all Subsidiaries of Company, and such
written notice shall be deemed to supplement Schedule 4.1 for all purposes
hereof.
5.10 Post Closing Covenants With Respect to Real Estate Assets. (a)
Other than in respect to the San ▇▇▇▇ Ground Lease, in the event that any Credit
Party acquires a Material Real Estate Asset or a Real Estate Asset owned on the
Closing Date becomes a Material Real Estate Asset and such interest has not
otherwise been made subject to the Lien of the Collateral Documents in favor of
Collateral Agent, for the benefit of Secured Parties, then such Credit Party,
contemporaneously with acquiring such Material Real Estate Asset or (other than
San ▇▇▇▇ Ground Lease) with such real estate asset becoming a Material Real
Estate Asset, shall take all such actions and execute and deliver, or cause to
be executed and delivered, all such mortgages, documents, instruments,
agreements, opinions and certificates with respect to each such Material Real
Estate Asset that Collateral Agent shall reasonably request to create in favor
of Collateral Agent, for the benefit of Secured Parties, a valid and, subject to
any filing and/or recording referred to herein, perfected First Priority
security interest in such Material Real Estate Assets and the personal property
located thereon. Notwithstanding any of the foregoing to the contrary, if a
Credit Party acquires a Material Real Estate Asset pursuant to a Permitted
Acquisition, such Credit Party shall take all such actions to comply with this
Section 5.10 within thirty (30) days after such Credit Party has acquired such
Material Real Estate Asset pursuant to a Permitted Acquisition.
(b) Company and its Subsidiaries shall at all times with
respect to Leasehold Properties which are not Material Real Estate Assets, use
reasonable commercial efforts to comply with Section 5.10 as though such
Leasehold Properties were Material Real Estate Assets.
(c) In addition to the foregoing, Company and its Restricted
Subsidiaries shall, at the request of Requisite Lenders, deliver, from time to
time, to Administrative Agent such appraisals as are required by law or
regulation of Real Estate Assets with respect to which Collateral Agent has been
granted a Lien, such best efforts to include, where possible, best efforts to
obtain a Landlord Agreement with the exception of paragraphs 4, 5 and 7 of
Exhibit K where a landlord refuses to consent to a leasehold mortgage.
5.11 Interest Rate Protection. Company shall maintain, or caused to
be maintained, in effect one or more Interest Rate Agreements for a term of not
less than three years and otherwise in form and substance reasonably
satisfactory to Administrative Agent and Syndication Agent, which Interest Rate
Agreements shall at all times effectively limit the amount of Indebtedness of
Company and its Restricted Subsidiaries bearing interest at a floating rate to
72
no more than 50% of the aggregate principal amount of Consolidated Total Debt
outstanding as of any date of determination.
5.12 Post Closing Covenants With Respect to Permitted Equipment
Financing Collateral. Upon termination of all outstanding obligations of Company
under any Permitted Equipment Financing, Company, contemporaneously with the
repayment of such outstanding obligations, shall (i) terminate any and all Liens
granted in connection with such Permitted Equipment Financing, (ii) be deemed to
have granted to Collateral Agent, for the benefit of Secured Parties, a valid
security interest and continuing lien on all of Company's right, title and
interest in, to and under such Collateral, (iii) grant to the Collateral Agent,
for the benefit of Secured Parties, a security interest and continuing lien on
all of Company's right, title and interest in, to and under such Collateral, by
executing and delivering to the Collateral Agent a Confirmation of Grant,
substantially in the form of Exhibit M attached hereto, and (iv) deliver to
Collateral Agent duly executed UCC financing statements and all other
instruments, notices, releases or certificates as Collateral Agent may
reasonably request from time to time.
5.13 Further Assurances. At any time or from time to time upon the
request of Administrative Agent, each Credit Party will, at its expense,
promptly execute, acknowledge and deliver such further documents and do such
other acts and things as Administrative Agent, Syndication Agent or Collateral
Agent may reasonably request in order to effect fully the purposes of the Credit
Documents. In furtherance and not in limitation of the foregoing, each Credit
Party shall take such actions as Administrative Agent, Syndication Agent or
Collateral Agent may reasonably request from time to time (including, without
limitation, the execution and delivery of guaranties, security agreements,
pledge agreements, mortgages, deeds of trust, landlord's consents and estoppels,
control agreements, stock powers, financing statements and other documents, the
filing or recording of any of the foregoing, title insurance with respect to any
of the foregoing that relates to any Real Estate Asset, and the delivery of
stock certificates and other collateral with respect to which perfection is
obtained by possession) to ensure that the Obligations are guarantied by the
Guarantors and are secured by substantially all of the assets of Company, and
its Restricted Subsidiaries and all of the outstanding Capital Stock of
Company's Subsidiaries (subject to limitations contained in the Credit Documents
with respect to Foreign Subsidiaries).
5.14 Notice of Default Under Lease. Upon receipt of any notice of
default under any lease for domestic Leasehold Property, Company shall
immediately notify Collateral Agent thereof.
5.15 Certain Post Effective Date Obligations. Credit Parties shall
promptly satisfy the requirements set forth on Schedule 5.15 (but in any event
within the time frames set forth on Schedule 5.15).
SECTION 6. NEGATIVE COVENANTS
Each Credit Party covenants and agrees that, so long as any Tranche
B Term Loan Commitment is in effect and until payment in full of all Obligations
such Credit Party shall perform, and shall cause each of its Restricted
Subsidiaries to perform, all covenants in this Section 6.
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6.1 Indebtedness. No Credit Party shall, directly or indirectly,
create, incur, assume or guaranty, or otherwise become or remain directly or
indirectly liable with respect to any Indebtedness, except:
------
(a) the Obligations, including any Indebtedness under any
Hedge Agreement with any Lender Counterparty;
(b) (x) Indebtedness (i) of OpCo or any Restricted Subsidiary
to Company or to OpCo or any other Restricted Subsidiary of Company that is a
Domestic Subsidiary, or (ii) for so long as no Event of Default has occurred and
is continuing under Section 8.1(a) of this Agreement, of Company to OpCo or any
Restricted Subsidiary; provided that, to the extent that any proceeds used to
provide such Indebtedness to Company is subject to a Lien granted pursuant to
the Collateral Documents, such proceeds are applied to either ordinary course
operating expenses of Company or to service Indebtedness of Company to the
extent funds for such purposes are not otherwise available to Company; provided,
--------
that all such Indebtedness shall be evidenced by promissory notes and all such
notes shall be subject to a First Priority Lien pursuant to the Pledge and
Security Agreement, all such Indebtedness shall be unsecured and subordinated in
right of payment to the payment in full of the Obligations pursuant to the terms
of the applicable promissory notes or an intercompany subordination agreement
that in any such case, is reasonably satisfactory to Administrative Agent and
the Collateral Agent, and any payment by any such Guarantor Subsidiary under any
guaranty of the Obligations shall result in a pro tanto reduction of the amount
of any Indebtedness owed by such Restricted Subsidiary to Company or to any of
its Restricted Subsidiaries for whose benefit such payment is made; provided
--------
further that the foregoing restrictions shall not apply to the extent not
-------
permitted under the Senior Note Indenture and (y) Indebtedness of any Subsidiary
of Company which is not a Guarantor Subsidiary to any other Subsidiary of
Company that is not a Guarantor Subsidiary;
(c) Permitted Unsecured Company Debt in an aggregate amount
not to exceed $5,000,000 issued by Company in connection with Permitted
Acquisitions as set forth in Section 6.9(d); provided, (i) immediately prior to,
--------
and after giving effect to the incurrence of such Permitted Unsecured Company
Debt, no Default or Event of Default shall have occurred and be continuing or
would result from such incurrence; and (ii) Company and its Restricted
Subsidiaries shall be in compliance with, immediately prior to and after giving
pro forma effect to the incurrence of such Indebtedness as if such Indebtedness
had been incurred at the beginning of the measurement period for the most
recently completed Fiscal Quarter, Section 6.6, 6.7, and 6.8, as applicable;
(d) Indebtedness incurred by Company or any of its Restricted
Subsidiaries arising from agreements providing for indemnification, adjustment
of purchase price or similar obligations (other than for borrowed money), or
from guaranties or letters of credit, surety bonds or performance bonds securing
the performance of Company or any such Restricted Subsidiary pursuant to such
agreements, in connection with Permitted Acquisitions or permitted dispositions
of any business, assets or Restricted Subsidiary of Company;
74
(e) Indebtedness which may be deemed to exist pursuant to any
guaranties, performance, surety, statutory, appeal or similar obligations
incurred in the ordinary course of business of Company and its Restricted
Subsidiaries;
(f) Indebtedness in respect of netting services, overdraft
protections and otherwise in connection with Deposit Accounts;
(g) guaranties in the ordinary course of business of the
obligations of suppliers, customers, franchisees and licensees of Company and
its Restricted Subsidiaries;
(h) Indebtedness described in Schedule 6.1 (including
reimbursement obligations with respect to letters of credit listed in Schedule
6.1) and refinancings and extensions of any such Indebtedness if the average
life to maturity thereof is greater than or equal to that of the Indebtedness
being refinanced or extended; provided, such Indebtedness refinanced or extended
(A) does not include Indebtedness of an obligor that was not an obligor with
respect to the Indebtedness being extended or refinanced, (B) does not exceed in
principal amount the Indebtedness being extended or refinanced (except it may be
increased by an amount to cover the fees and expenses, including consent fees,
placement fees and prepayment premiums, relating to such refinancing) and (C)
may not be incurred, created or assumed if any Default or Event of Default has
occurred and is continuing or would result therefrom;
(i) Permitted Equipment Financings (exclusive of those
Permitted Equipment Financings listed on Schedule 6.1);
(j) the Senior Notes; and
(k) Indebtedness of Company with respect to (x) the retention
of liability with respect to the San ▇▇▇▇ Ground Lease and (y) Basic Upkeep,
provided that Company shall use its continuing reasonable best efforts to obtain
--------
the release of any such guarantees.
6.2 Liens. No Credit Party shall, directly or indirectly, create,
incur, assume or permit to exist any Lien on or with respect to any property or
asset of any kind (including any document or instrument in respect of goods or
accounts receivable) of Company or any of its Restricted Subsidiaries, whether
now owned or hereafter acquired, or any income or profits therefrom, or file or
permit the filing of, or permit to remain in effect, any financing statement or
other similar notice of any Lien with respect to any such property, asset,
income or profits under the UCC of any State or under any similar recording or
notice statute, except:
------
(a) Liens in favor of Collateral Agent for the benefit of
Secured Parties granted pursuant to any Credit Document;
(b) Liens for Taxes not yet due or that are being contested in
good faith by appropriate proceedings; provided adequate reserves with respect
thereto are maintained on the books of the Credit Party as may be required with
GAAP;
(c) statutory Liens of landlords, banks (and rights of
set-off), of carriers, warehousemen, mechanics, repairmen, workmen and
materialmen, and other Liens
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imposed by law (other than any such Lien imposed pursuant to Section 401 (a)(29)
or 412(n) of the Internal Revenue Code or by ERISA), in each case incurred in
the ordinary course of business for amounts not yet overdue or for amounts that
are overdue and that (in the case of any such amounts overdue for a period in
excess of five days) are being contested in good faith by appropriate
proceedings, so long as such reserves or other appropriate provisions, if any,
as shall be required by GAAP shall have been made for any such contested
amounts;
(d) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, deposits made in the ordinary course of business
with utility companies, and Liens incurred or deposits made in the ordinary
course of business to secure the performance of tenders, statutory or regulatory
obligations, surety and appeal bonds, bids, leases, government contracts, trade
contracts, performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money or other
Indebtedness), so long as no foreclosure, sale or similar proceedings have been
commenced with respect to any portion of the Collateral on account thereof;
(e) easements, rights-of-way, restrictions, encroachments, and
other minor defects or irregularities in title, in each case which do not and
will not interfere in any material respect with the ordinary conduct of the
business of Company or any of its Subsidiaries;
(f) any interest or title of a lessor or sublessor under any
lease of real estate permitted hereunder;
(g) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by
Company or any of its Restricted Subsidiaries in connection with any letter of
intent or purchase agreement permitted hereunder entered into by it;
(h) Purported Liens evidenced by the filing of precautionary
UCC financing statements relating solely to operating leases of personal
property entered into in the ordinary course of business;
(i) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection with the
importation of goods;
(j) any zoning or similar law or right reserved to or vested
in any governmental office or agency to control or regulate the use of any real
property;
(k) licenses of patents, trademarks and other intellectual
property rights granted by Company or any of its Subsidiaries in the ordinary
course of business and not interfering in any respect with the ordinary conduct
of the business of Company or such Subsidiary;
(l) Liens described in Schedule 6.2 or on a title report
delivered to Agents on or prior to the Effective Date pursuant to 3.1(f)(v) of
the Existing Credit Agreement and agreed to by the Lenders;
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(m) Liens in favor of the trustee under the Senior Notes
Indenture and/or the trustee or other representative of holders of Permitted
Unsecured Company Debt with respect to Cash and/or Cash Equivalents funded
solely from the proceeds received by Company from the sale of the Senior Notes
or Permitted Unsecured Company Debt, as the case may be;
(n) Liens consisting of judgment or judicial attachment Liens
with respect to judgments that do not constitute an Event of Default;
(o) Liens securing Permitted Equipment Financings; provided,
any such Lien shall encumber only the assets financed with the proceeds of such
Permitted Equipment Financings as contemplated by the definition of Permitted
Equipment Financing;
(p) Liens incurred in connection with the purchase of shipping
of goods or assets on the related assets and proceeds thereof in favor of the
seller or shipper of such goods or assets; and
(q) Liens on escrowed Cash representing a portion of the
proceeds of permitted sales of assets by Company or a Restricted Subsidiary
established to satisfy contingent post-closing obligations that it owes
(including earn-outs, indemnities and working capital adjustments).
6.3 No Further Negative Pledges. Except with respect to (i) specific
property encumbered to secure payment of particular Indebtedness or to be sold
pursuant to an executed agreement with respect to a permitted Asset Sale, and
(ii) restrictions by reason of customary provisions restricting assignments,
subletting or other transfers contained in leases, licenses and similar
agreements entered into in the ordinary course of business (provided that such
restrictions are limited to the property or assets secured by such Liens or the
property or assets subject to such leases, licenses or similar agreements, as
the case may be) and (iii) restrictions on transfer with respect to Capital
Stock of a second tier Unrestricted Subsidiary that a Credit Party owns, no
Credit Party shall enter into any agreement prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether now owned
or hereafter acquired.
6.4 Restricted Junior Payments; Restrictions on Investments in
Unrestricted Subsidiaries; Restricted Rental and Upkeep Payments. (a) No Credit
Party shall, directly or indirectly, declare, order, pay, make or set apart any
sum for any Restricted Junior Payment except that (i) Company may make payments
in an aggregate maximum amount of $1,000,000 to retire, or to obtain the
surrender of, shares of its common equity issued to its employees, directors or
consultants or any outstanding warrants, options or other rights to acquire
shares of its common equity issued to any such Persons and Company may acquire
fractional shares of its common equity at fair market value thereof for not in
excess of $250,000 in the aggregate, (ii) Company may make regularly scheduled
payments of principal and interest (but not voluntary prepayments other than a
voluntary prepayment made pursuant to a refinancing permitted under Section 6.1)
in respect of the Senior Notes, any Permitted Unsecured Company Debt and
Permitted Equipment Financings in accordance with the terms of, and only to the
extent required by, the indenture or other agreement pursuant to which such
Indebtedness was issued and (iii) so long as no Event of Default under Section
8.01(a) has occurred and is
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continuing OpCo may make distributions to Company; provided that, in no event
shall OpCo distribute to Company any assets subject to a Lien established under
the Collateral Documents.
(b) Neither Company nor any Restricted Subsidiary shall,
directly or indirectly, make any guaranty on behalf of, declare, order, pay,
make, transfer or set apart any sum or assets of, for or constituting any
contribution of capital or assets to, or payment to or on behalf of any
Unrestricted Subsidiary; except that, (i) Company or any Restricted Subsidiary
------
may make payments of rent, property tax, power and maintenance commitments
provided for in the Effective Date Financial Plan and similar expenses related
to the basic upkeep (all such expenses listed in this clause (i) collectively,
"Basic Upkeep") of the rental property set forth on Schedule 6.4(b)(i) for so
long as, (A) with respect to each lease, no expenditures of any nature have been
made by Company or any of its Restricted Subsidiaries for the use or development
of the leased site (it being understood that expenditures for Basic Upkeep shall
not be deemed expenditures for such use or development) and (B) after the
occurrence and during the continuance of an Event of Default, Company or any
Restricted Subsidiaries is contractually or legally required to make such
expenditures; (ii) Company and Restricted Subsidiaries may contribute to Foreign
Subsidiaries leases with respect to foreign operations in existence on the
Effective Date and (iii) Company or any Restricted Subsidiary may make
Investments permitted pursuant to Section 6.5(g).
6.5 Investments. Except as provided in Section 6.4(b), neither
Company nor any Restricted Subsidiary shall, directly or indirectly, make or own
any Investment in any Person, including without limitation any Joint Venture,
except:
------
(a) Cash Equivalents;
(b) equity Investments owned as of the Closing Date in any
Subsidiary and equity investments made in Restricted Subsidiaries after the
Closing Date;
(c) Investments (i) in accounts receivable arising and trade
credit granted in the ordinary course of business and in any Securities received
in satisfaction or partial satisfaction thereof from financially troubled
account debtors and (ii) deposits, prepayments and other credits to suppliers
made in the ordinary course of business consistent with the past practices of
Company and its Restricted Subsidiaries;
(d) intercompany loans to the extent permitted under Section
6.1(b);
(e) Consolidated Capital Expenditures permitted by Section
6.8;
(f) Investments made in connection with Permitted Acquisitions
permitted pursuant to Section 6.9 and Investments in Unrestricted Subsidiaries
pursuant to Section 6.4(b);
(g) So long as no Event of Default has occurred and is
continuing, Investments by Company or a Restricted Subsidiary in other Persons;
provided that after giving effect to any such Investment, together with any
--------
other Investments and any Permitted Acquisition consummated after the Effective
Date, the aggregate cash consideration paid by Company and its Restricted
Subsidiaries in connection with all such Investments and Permitted
78
Acquisitions shall not exceed $5,000,000 in the aggregate (exclusive of any cash
consideration to the extent funded solely with the proceeds of Qualifying Equity
issued substantially contemporaneously with the consummation of such
Investment); provided further that, with respect to any such Investments made
-------- -------
prior to satisfaction of the EBITDA Requirement with respect to which the
aggregate cash consideration paid by Company and its Restricted Subsidiaries
(excluding cash consideration representing the proceeds of Qualifying Equity)
together with the aggregate cash consideration paid with respect to all other
Investments and Permitted Acquisitions made prior to satisfaction of the EBITDA
Requirement, exceeds $2,000,000, such Investment may only be made to the extent
that the Cash and Cash Equivalents of Company and its Restricted Subsidiaries
exceeds the Cash and Cash Equivalent set forth in the Effective Date Financial
Plan as of the date of such Investment by an amount not less than 200% of such
cash consideration paid in excess of $2,000,000 and an amount equal to such cash
consideration paid in excess of $2,000,000 is deposited in a Restricted Account;
and
(h) loans made or committed before the Effective Date as set
forth on Schedule 6.5(i) and loans to employees of Company in an aggregate
amount not to exceed $1,000,000 for the purchase of real estate; provided that,
--------
except as set forth on Schedule 6.5(i) to the contrary, each such loan shall be
secured by a first mortgage on the real estate so purchased and such notes and
mortgages shall be pledged and delivered to the Collateral Agent.
6.6 Stage 1 Financial Covenants. During Stage 1:
(a) Minimum Annualized Revenues. Company shall not permit
---------------------------
Annualized Consolidated Revenues for any Fiscal Quarter during Stage 1 or Net
Revenues for the month of April 2002, to be less than the correlative amount
indicated as set forth on Schedule 6.6(a).
(b) Maximum Consolidated EBITDA Losses/Minimum Consolidated
-------------------------------------------------------
EBITDA. Company shall not permit Consolidated EBITDA losses or Consolidated
------
EBITDA, as applicable, for any Fiscal Quarter during Stage 1, to be greater than
or less than, as applicable, the correlative amount indicated as set forth on
Schedule 6.6(b).
(c) Consolidated Senior Secured Debt to Consolidated Total
------------------------------------------------------
Capitalization. Company shall not permit the ratio of Consolidated Senior
--------------
Secured Debt to Consolidated Total Capitalization at any time during Stage 1 to
exceed 0.20:1.00.
(d) Consolidated Total Debt to Consolidated Total
---------------------------------------------
Capitalization. Company shall not permit the ratio of Consolidated Total Debt to
--------------
Consolidated Total Capitalization at any time during Stage 1 to exceed
0.50:1.00.
(e) Minimum Cash and Cash Equivalents. Company shall not
---------------------------------
permit aggregate Cash and Cash Equivalents of Company and its Restricted
Subsidiaries as of the last day of each calendar month during Stage 1 to be less
than the correlative amounts set forth on Schedule 6.6(e).
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6.7 Stage 2 Financial Covenants. During Stage 2:
(a) Senior Leverage Ratio. Company shall not permit the Senior
---------------------
Leverage Ratio as of the last day of any Fiscal quarter during Stage 2 to exceed
the correlative ratio indicated as set forth on Schedule 6.7(a).
(b) Total Leverage Ratio. Company shall not permit the Total
--------------------
Leverage Ratio as of the last day of any Fiscal Quarter during Stage 2 to exceed
the correlative ratio indicated as set forth on Schedule 6.7(b).
(c) Interest Coverage Ratio. Company shall not permit the
-----------------------
Interest Coverage Ratio as of the last day of any Fiscal Quarter during Stage 2
to be less than the correlative ratio indicated as set forth on Schedule 6.7(c).
(d) Pro Forma Debt Service Coverage Ratio. Company shall not
-------------------------------------
at any time during the periods set forth on Schedule 6.7(d) permit the ratio of
(i) Annualized Consolidated EBITDA (excluding restricted cash) to (ii) required
consolidated pro forma amortization and principal payments and consolidated cash
interest expense for the next four consecutive quarters to be less than the
correlative ratios set forth on Schedule 6.7(d).
(e) Minimum Cash and Cash Equivalents. Company shall not
---------------------------------
permit aggregate Cash and Cash Equivalents of Company and its Restricted
Subsidiaries as of the last day of each calendar month during Stage 2 to be less
than the correlative amounts set forth on Schedule 6.7(e).
In the event a Permitted Acquisition or an Investment pursuant to Section 6.5(g)
is made after the Effective Date, the following provisions shall apply for
purposes of calculating compliance with the financial covenants set forth in
Sections 6.6 and 6.7:
(i) the Net Revenues and the positive portion of
Consolidated EBITDA, if any, attributable to such Investment or
Permitted Acquisition shall only be included for purposes of
calculating such financial covenants commencing on the first day of the
second full Fiscal Quarter occurring after consummation of such
Investment or Permitted Acquisition;
(ii) the minimum Annualized Consolidated Revenue amounts
set forth on Schedule 6.6(a) shall be increased for each period
occurring after completion of the first full Fiscal Quarter following
the date of consummation of such Investment or Permitted Acquisition by
an amount equal to 87.5% of Net Revenues attributable to such
Investment or Permitted Acquisition with respect to such first Fiscal
Quarter (or in the case of a monthly measurement, by 87.5% of the Net
Revenues attributable to such Investment or Permitted Acquisition for
the first month of such first Fiscal Quarter); and
(iii) the maximum Consolidated EBITDA loss amounts set
forth on Schedule 6.6(b) shall be reduced and the minimum Consolidated
EBITDA amounts increased, for each period occurring after completion of
the first full Fiscal Quarter following the date of consummation of
each such Investment and Permitted Acquisition in an amount equal to
the positive portion, if any, of Consolidated EBITDA attributable
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to such Investment or Permitted Acquisition with respect to such first
Fiscal Quarter (such portion of Consolidated EBITDA to be calculated
based upon 87.5% of the revenues attributable to such Investment or
Permitted Acquisition during such Fiscal Quarter).
For purposes of determining compliance with the minimum Cash and Cash
Equivalents requirements of Section 6.6(e) and 6.7(e) (x) the amount of Cash and
Cash Equivalents on deposit in any Restricted Account shall be excluded,(y) an
amount equal to outstanding Tranche B Term Loans in excess of $5,000,000 shall
be deducted from Company and its Subsidiaries outstanding Cash and Cash
Equivalents and (z) the amount of the net proceeds of any Qualifying Equity
issued after the Effective Date not used to pay a portion of the cash
consideration in connection with a Permitted Acquisition shall be added to each
of the amounts set forth on Schedules 6.6(e) and 6.7(e) as of the date such net
proceeds are received and for each period thereafter.
6.8 Maximum Consolidated Capital Expenditures. During Stage 1 and
Stage 2, Company shall not and shall not permit its Restricted Subsidiaries to
make or incur Consolidated Capital Expenditures, in any Fiscal Year indicated on
Schedule 6.8, in an aggregate amount for Company and its Restricted Subsidiaries
in excess of the corresponding amount set forth on Schedule 6.8; provided that,
--------
any amount set forth in the Effective Date Financial Plan representing a payment
scheduled to be paid in Fiscal Year 2001 by Company and its Restricted
Subsidiaries to ▇▇▇▇▇▇▇ Corporation with respect to the IBX Facility located in
Secaucus, New Jersey, but not paid in cash in Fiscal Year 2001 may be carried
forward and paid to ▇▇▇▇▇▇▇ Corporation in Fiscal Year 2002.
6.9 Fundamental Changes; Disposition of Assets; Acquisitions.
Neither Company nor any Restricted Subsidiary shall, enter into any transaction
of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer
any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor
or sublessor), transfer or otherwise dispose of, in one transaction or a series
of transactions, all or any part of its business, assets or property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible,
whether now owned or hereafter acquired, or acquire by purchase or otherwise
(other than purchases or other acquisitions of inventory, materials and
equipment in the ordinary course of business) the business, property or fixed
assets of, or stock or other evidence of beneficial ownership of, any Person or
any division or line of business or other business unit of any Person, except:
------
(a) any Restricted Subsidiary of Company may be merged with or
into any other Restricted Subsidiary, or be liquidated, wound up or dissolved,
or all or any part of its business, property or assets may be conveyed, sold,
leased, transferred or otherwise disposed of, in one transaction or a series of
transactions, to any Restricted Subsidiary; provided, in the case of such a
--------
merger, a Restricted Subsidiary shall be the continuing or surviving Person;
(b) sales or other dispositions of assets which do not
constitute Asset Sales;
(c) Asset Sales, the proceeds of which (valued at the
principal amount thereof in the case of non-Cash proceeds consisting of notes or
other debt Securities and valued
81
at fair market value in the case of other non-Cash proceeds) (i) are less than
$250,000 with respect to any single Asset Sale or series of related Asset Sales
and (ii) when aggregated with the proceeds of all other Asset Sales made within
the same Fiscal Year, are less than $1,000,000; provided (1) the consideration
--------
received for such assets shall be in an amount at least equal to the fair market
value thereof (determined in good faith by the board of directors of Company (or
similar governing body)), (2) no less than 85% thereof shall be paid in Cash,
and (3) the Net Asset Sale Proceeds thereof shall be applied as required by
Section 2.12(a);
(d) Permitted Acquisitions; provided, the cash consideration
--------
paid by Company and its Restricted Subsidiaries in connection with all such
Permitted Acquisitions, together with the cash consideration paid by Company and
its Restricted Subsidiaries in connection with Investments made pursuant to
Section 6.5(g) shall not exceed $5,000,000 in the aggregate (exclusive of any
cash consideration to the extent funded solely with the proceeds of Qualifying
Equity issued substantially contemporaneously with the consummation of such
Permitted Acquisition), provided, further that, with respect to any such
-------- -------
Permitted Acquisitions and Investments made prior to satisfaction of the EBITDA
Requirement with respect to which the aggregate cash consideration paid
(excluding cash consideration representing the proceeds of Qualifying Equity),
together with the aggregate cash consideration for all Permitted Acquisitions
and Investments made prior to satisfaction of the EBITDA Requirement, exceeds
$2,000,000, such Permitted Acquisition may only be made to the extent that the
Cash and Cash Equivalents of Company and its Restricted Subsidiaries exceeds the
Cash and Cash Equivalents set forth in the Effective Date Financial Plan as of
the date of such Permitted Acquisitions by an amount not less than 200% of such
Cash consideration in excess of $2,000,000 paid and an amount equal to such cash
consideration paid in excess of $2,000,000 is deposited in a Restricted Account;
and
(e) Investments made in accordance with Section 6.5.
6.10 Disposal of Subsidiary Interests. Except for any sale of 100%
of the Capital Stock of any of its Subsidiaries made in compliance with the
provisions of Section 6.9, no Credit Party shall directly or indirectly sell,
assign, pledge or otherwise encumber or dispose of any Capital Stock of any of
its Restricted Subsidiaries, except to qualify directors if required by
applicable law; or permit any of its Restricted Subsidiaries directly or
indirectly to sell, assign, pledge or otherwise encumber or dispose of any
Capital Stock of any of its Restricted Subsidiaries or first tier Unrestricted
Subsidiaries, except to Company or a wholly-owned Guarantor Subsidiary of
Company (subject to the restrictions on such disposition otherwise imposed
hereunder), or to qualify directors if required by applicable law.
6.11 Sales and Lease-Backs. Except as set forth on Schedule 6.11 or
in connection with a Permitted Equipment Financing, no Credit Party shall,
directly or indirectly, become or remain liable as lessee or as a guarantor or
other surety with respect to any lease of any property (whether real, personal
or mixed), whether now owned or hereafter acquired, which such Credit Party has
sold or transferred or is to sell or to transfer to any other Person (other than
Company or any of its Restricted Subsidiaries), or intends to use for
substantially the same purpose as any other property which has been or is to be
sold or transferred by such Credit Party to any Person (other than Company or
any of its Restricted Subsidiaries) in connection with such lease.
82
6.12 Sale and Discount of Receivables. No Credit Party shall, nor
shall it permit any of its Subsidiaries to, directly or indirectly, sell with
recourse, or discount or otherwise sell for less than the face value thereof,
any of its notes or accounts receivable (it being understood that the
restriction contained in this Section 6.12 shall not apply to any write-off of
bad debt in the ordinary course of business consistent with prior practice).
6.13 Transactions with Shareholders and Affiliates. (a) No Credit
Party shall, directly or indirectly, enter into or permit to exist any
transaction (including the purchase, sale, lease or exchange of any property or
the rendering of any service) with any holder of 10% or more of any class of
Capital Stock of Company or any of its Subsidiaries or with any Affiliate of
Company or of any such holder, on terms that are less favorable to Company or
that Subsidiary, as the case may be, than those that might be obtained at the
time from a Person who is not such a holder or Affiliate; provided, the
--------
foregoing restriction shall not apply to (a) any transaction between Company and
any Restricted Subsidiary or between any of the Guarantor Subsidiaries; (b)
reasonable and customary fees paid to members of the board of directors (or
similar governing body) of Company and its Subsidiaries; (c) compensation
arrangements entered into in the ordinary course of business for officers and
other employees of Company and its Subsidiaries; and (d) transactions described
in Schedule 6.13.
(b) Each Credit Party will (i) maintain entity records and
books of account separate from those of any other entity which is an Affiliate
of such Credit Party; (ii) not commingle its funds or assets with those of any
other entity which is an Affiliate of such Credit Party, and (iii) provide that
its board of directors or other analogous governing body will hold all
appropriate meetings to authorize and approve such Person's entity actions,
which meetings will be separate from those of other Credit Parties.
6.14 Conduct of Business. From and after the Closing Date, no Credit
Party shall, nor shall it permit any of its Subsidiaries to, engage in any
business other than (i) the businesses engaged in by such Credit Party on the
Closing Date and Complementary Businesses and (ii) such other lines of business
as may be consented to by Requisite Lenders.
6.15 Permitted IBX Facilities. Except for the making of payments
relating to Basic Upkeep as provided under Section 6.4(b), Company shall not,
nor shall it permit any of its Restricted Subsidiaries to, build out, commence
the construction of, operate or acquire a IBX Facility whether independently or
by joint venture) other than Permitted IBX Facilities.
6.16 Amendments or Waivers of Certain Documents.
No Credit Party shall, amend or otherwise change the terms of the
Senior Notes, any Permitted Unsecured Company Debt or any Permitted Equipment
Financing, or make any payment consistent with an amendment thereof or change
thereto, if the effect of such amendment or change is to increase the interest
rate on such Indebtedness, change (to earlier dates) any dates upon which
payments of principal or interest are due thereon, change any event of default
or condition to an event of default with respect thereto (other than to
eliminate any such event of default or increase any grace period related
thereto), change the redemption, prepayment or defeasance provisions thereof,
change the subordination provisions of such Indebtedness (or of any guaranty
thereof), or if the effect of such amendment or change, together
83
with all other amendments or changes made, is to increase materially the
obligations of the obligor thereunder or to confer any additional rights on the
holders of such Indebtedness (or a trustee or other representative on their
behalf) which would be adverse to any Credit Party or Lenders. In addition, no
Credit Party shall amend or otherwise change the terms of any lease with respect
to any IBX Facilities and the San ▇▇▇▇ Ground Lease, if the effect of such
amendment or change is to increase the financial obligations with respect to
such lease in an aggregate amount in excess of $50,000 over the term of such
lease.
6.17 Fiscal Year. No Credit Party shall change its Fiscal Year-end
from December 31.
6.18 Unrestricted Subsidiaries.
(a) Company may not create, acquire or otherwise designate an
Unrestricted Subsidiary other than those Subsidiaries listed on Schedule 1.1(b).
(b) Neither Company nor any Restricted Subsidiary shall at any
time (x) provide any guaranty of any Indebtedness of any Unrestricted Subsidiary
(y) be directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary or (z) be directly or indirectly liable for any other Indebtedness
which provides that the holder thereof may (upon notice, lapse of time or both)
declare a default thereon (or cause such Indebtedness or the payment thereof to
be accelerated, payable or subject to repurchase prior to its final scheduled
maturity) upon the occurrence of a default with respect to any other
Indebtedness that is Indebtedness of an Unrestricted Subsidiary.
(c) Company shall not create or suffer to exist any Foreign
Subsidiary that is not an Unrestricted Subsidiary.
6.19 Acquisition and Ownership of Assets by Company. Except to the
extent contemplated under Section 6.4(a), Company shall not acquire or own any
operating assets other than (i) assets owned or acquired prior to the Effective
Date, (ii) replacement assets, (iii) assets acquired with the proceeds of
Permitted Equipment Financing and (iv) assets from a Restricted Subsidiary so
long as such asset is not subject to a Lien under the Collateral Documents.
6.20 Company Subsidiaries. The Company shall not after the Closing
Date (i) create any new direct Restricted Subsidiary other than International
Holdings or (ii) acquire any equity interest in any other entity unless all such
equity interests are subject to a First Priority Lien in favor of the Collateral
Agent for the benefit of Lenders.
SECTION 7. GUARANTY
7.1 Guaranty of the Obligations. Subject to the provisions of
Section 7.2, Guarantors jointly and severally hereby irrevocably and
unconditionally guaranty to Administrative Agent for the ratable benefit of the
Beneficiaries the due and punctual payment in full of all Obligations when the
same shall become due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including amounts that would
84
become due but for the operation of the automatic stay under Section 362(a) of
the Bankruptcy Code, 11 U.S.C. (S) 362(a)) (collectively, the "Guaranteed
Obligations").
7.2 Contribution by Guarantors. Each Guarantor desires to allocate
among themselves (collectively, the "Contributing Guarantors"), in a fair and
equitable manner, their obligations arising under this Guaranty. Accordingly, in
the event any payment or distribution is made on any date by a Guarantor (a
"Funding Guarantor") under this Guaranty that exceeds its Fair Share as of such
date, such Funding Guarantor shall be entitled to a contribution from each of
the other Contributing Guarantors in the amount of such other Contributing
Guarantor's Fair Share Shortfall as of such date, with the result that all such
contributions will cause each Contributing Guarantor's Aggregate Payments to
equal its Fair Share as of such date. "Fair Share" means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to the
ratio of the Fair Share Contribution Amount with respect to such Contributing
Guarantor to the aggregate of the Fair Share Contribution Amounts with respect
to all Contributing Guarantors multiplied by the aggregate amount paid or
distributed on or before such date by all Funding Guarantors under this Guaranty
in respect of the obligations Guaranteed. "Fair Share Shortfall" means, with
respect to a Contributing Guarantor as of any date of determination, the excess,
if any, of the Fair Share of such Contributing Guarantor over the Aggregate
Payments of such Contributing Guarantor. "Fair Share Contribution Amount" means,
with respect to a Contributing Guarantor as of any date of determination, the
maximum aggregate amount of the obligations of such Contributing Guarantor under
this Guaranty that would not render its obligations hereunder or thereunder
subject to avoidance as a fraudulent transfer or conveyance under Section 548 of
Title 11 of the United States Code or any comparable applicable provisions of
state law; provided, solely for purposes of calculating the "Fair Share
--------
Contribution Amount" with respect to any Contributing Guarantor for purposes of
this Section 7.2, any assets or liabilities of such Contributing Guarantor
arising by virtue of any rights to subrogation, reimbursement or indemnification
or any rights to or obligations of contribution hereunder shall not be
considered as assets or liabilities of such Contributing Guarantor. "Aggregate
Payments" means, with respect to a Contributing Guarantor as of any date of
determination, an amount equal to the aggregate amount of all payments and
distributions made on or before such date by such Contributing Guarantor in
respect of this Guaranty (including, without limitation, in respect of this
Section 7.2), minus the aggregate amount of all payments received on or before
such date by such Contributing Guarantor from the other Contributing Guarantors
as contributions under this Section 7.2. The amounts payable as contributions
hereunder shall be determined as of the date on which the related payment or
distribution is made by the applicable Funding Guarantor. The allocation among
Contributing Guarantors of their obligations as set forth in this Section 7.2
shall not be construed in any way to limit the liability of any Contributing
Guarantor hereunder. Each Guarantor is a third party beneficiary to the
contribution agreement set forth in this Section 7.2.
7.3 Payment by Guarantors. Subject to Section 7.2, Guarantors
hereby jointly and severally agree, in furtherance of the foregoing and not in
limitation of any other right which any Beneficiary may have at law or in equity
against any Guarantor by virtue hereof, that upon the failure of the Borrower to
pay any of the Guaranteed Obligations when and as the same shall become due,
whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise (including amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11
U.S.C. (S) 362(a)), Guarantors
85
will upon demand pay, or cause to be paid, in Cash, to Administrative Agent for
the ratable benefit of Beneficiaries, an amount equal to the sum of the unpaid
principal amount of all Guaranteed Obligations then due as aforesaid, accrued
and unpaid interest on such Guaranteed Obligations (including interest which,
but for the Borrower's becoming the subject of a case under the Bankruptcy code,
would have accrued on such Guaranteed Obligations, whether or not a claim is
allowed against the Borrower for such interest in the related bankruptcy case)
and all other Guaranteed Obligations then owed to Beneficiaries as aforesaid.
7.4 Liability of Guarantors Absolute. Each Guarantor agrees that its
obligations hereunder are irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than payment in full of the
Guaranteed Obligations in Cash. In furtherance of the foregoing and without
limiting the generality thereof, each Guarantor agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of
collectability. This Guaranty is a primary obligation of each Guarantor and not
merely a contract of surety;
(b) Administrative Agent may enforce this Guaranty upon the
occurrence of an Event of Default notwithstanding the existence of any dispute
between the Borrower and any Beneficiary with respect to the existence of such
Event of Default;
(c) the obligations of each Guarantor hereunder are
independent of the obligations of the Borrower and the obligations of any other
guarantor (including any other Guarantor) of the obligations of the Borrower,
and a separate action or actions may be brought and prosecuted against such
Guarantor whether or not any action is brought against the Borrower or any of
such other guarantors and whether or not the Borrower is joined in any such
action or actions;
(d) payment by any Guarantor of a portion, but not all, of the
Guaranteed Obligations shall in no way limit, affect, modify or abridge any
Guarantor's liability for any portion of the Guaranteed Obligations which has
not been paid. Without limiting the generality of the foregoing, if
Administrative Agent is awarded a judgment in any suit brought to enforce any
Guarantor's covenant to pay a portion of the Guaranteed Obligations, such
judgment shall not be deemed to release such Guarantor from its covenant to pay
the portion of the Guaranteed Obligations that is not the subject of such suit,
and such judgment shall not, except to the extent satisfied by such Guarantor in
Cash, limit, affect, modify or abridge any other Guarantor's liability hereunder
in respect of the Guaranteed Obligations;
(e) any Beneficiary, upon such terms as it deems appropriate,
without notice or demand and without affecting the validity or enforceability
hereof or giving rise to any reduction, limitation, impairment, discharge or
termination of any Guarantor's liability hereunder, from time to time may (i)
renew, extend, accelerate, increase the rate of interest on, or otherwise change
the time, place, manner or terms of payment of the Guaranteed Obligations; (ii)
settle, compromise, release or discharge, or accept or refuse any offer of
performance with respect to, or substitutions for, the Guaranteed Obligations or
any agreement relating thereto and/or subordinate the payment of the same to the
payment of any other obligations; (iii) request
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and accept other guaranties of the Guaranteed Obligations and take and hold
security for the payment hereof or the Guaranteed Obligations; (iv) release,
surrender, exchange, substitute, compromise, settle, rescind, waive, alter,
subordinate or modify, with or without consideration, any security for payment
of the Guaranteed Obligations, any other guaranties of the Guaranteed
Obligations, or any other obligation of any Person (including any other
Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any
security now or hereafter held by or for the benefit of such Beneficiary in
respect hereof or the Guaranteed Obligations and direct the order or manner of
sale thereof, or exercise any other right or remedy that such Beneficiary may
have against any such security, in each case as such Beneficiary in its
discretion may determine consistent herewith or the applicable Hedge Agreement
and any applicable security agreement, including foreclosure on any such
security pursuant to one or more judicial or nonjudicial sales, whether or not
every aspect of any such sale is commercially reasonable, and even though such
action operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of any Guarantor against the Borrower or
any security for the Guaranteed Obligations; and (vi) exercise any other rights
available to it under the Credit Documents or the Hedge Agreements; and
(f) this Guaranty and the obligations of Guarantors hereunder
shall be valid and enforceable and shall not be subject to any reduction,
limitation, impairment, discharge or termination for any reason (other than the
indefeasible payment in full of the Guaranteed Obligations in Cash), including
the occurrence of any of the following, whether or not any Guarantor shall have
had notice or knowledge of any of them: (i) any failure or omission to assert or
enforce or agreement or election not to assert or enforce, or the stay or
enjoining, by order of court, by operation of law or otherwise, of the exercise
or enforcement of, any claim or demand or any right, power or remedy (whether
arising under the Credit Documents or the Hedge Agreements, at law, in equity or
otherwise) with respect to the Guaranteed Obligations or any agreement relating
thereto, or with respect to any other guaranty of or security for the payment of
the Guaranteed Obligations; (ii) any rescission, waiver, amendment or
modification of, or any consent to departure from, any of the terms or
provisions (including provisions relating to events of default) hereof, any of
the other Credit Documents, any of the Hedge Agreements or any agreement or
instrument executed pursuant thereto, or of any other guaranty or security for
the Guaranteed Obligations, in each case whether or not in accordance with the
terms hereof or such Credit Document, such Hedge Agreement or any agreement
relating to such other guaranty or security; (iii) the Guaranteed Obligations,
or any agreement relating thereto, at any time being found to be illegal,
invalid or unenforceable in any respect; (iv) the application of payments
received from any source (other than payments received pursuant to the other
Credit Documents or any of the Hedge Agreements or from the proceeds of any
security for the Guaranteed Obligations, except to the extent such security also
serves as collateral for indebtedness other than the Guaranteed Obligations) to
the payment of indebtedness other than the Guaranteed Obligations, even though
any Beneficiary might have elected to apply such payment to any part or all of
the Guaranteed Obligations; (v) any Beneficiary's consent to the change,
reorganization or termination of the corporate structure or existence of Company
or any of its Subsidiaries and to any corresponding restructuring of the
Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a
security interest in any collateral which secures any of the Guaranteed
Obligations; (vii) any defenses, set-offs or counterclaims which the Borrower or
any Guarantor may allege or assert against any Beneficiary in respect of the
Guaranteed Obligations, including failure of consideration, breach of warranty,
payment, statute of frauds, statute of limitations,
87
accord and satisfaction and usury; and (viii) any other act or thing or
omission, or delay to do any other act or thing, which may or might in any
manner or to any extent vary the risk of any Guarantor as an obligor in respect
of the Guaranteed Obligations.
7.5 Waivers by Guarantors. Each Guarantor hereby waives, for the
benefit of Beneficiaries: any right to require any Beneficiary, as a condition
of payment or performance by such Guarantor, to proceed against the Borrower,
any other guarantor (including any other Guarantor) of the Guaranteed
Obligations or any other Person, proceed against or exhaust any security held
from the Borrower, any such other guarantor or any other Person, proceed against
or have resort to any balance of any Deposit Account or credit on the books of
any Beneficiary in favor of the Borrower or any other Person, or (iv) pursue any
other remedy in the power of any Beneficiary whatsoever; any defense arising by
reason of the incapacity, lack of authority or any disability or other defense
of the Borrower or any other Guarantor including any defense based on or arising
out of the lack of validity or the unenforceability of the Guaranteed
Obligations or any agreement or instrument relating thereto or by reason of the
cessation of the liability of the Borrower or any other Guarantor from any cause
other than payment in full of the Guaranteed Obligations in Cash; any defense
based upon any statute or rule of law which provides that the obligation of a
surety must be neither larger in amount nor in other respects more burdensome
than that of the principal; any defense based upon any Beneficiary's errors or
omissions in the administration of the Guaranteed Obligations, except behavior
which amounts to bad faith; any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms hereof and any legal
or equitable discharge of such Guarantor's obligations hereunder, the benefit of
any statute of limitations affecting such Guarantor's liability hereunder or the
enforcement hereof, any rights to set-offs, recoupments and counterclaims, and
promptness, diligence and any requirement that any Beneficiary protect, secure,
perfect or insure any security interest or lien or any property subject thereto;
notices, demands, presentments, protests, notices of protest, notices of
dishonor and notices of any action or inaction, including acceptance hereof,
notices of default hereunder, under the Hedge Agreements or under any agreement
or instrument related thereto, notices of any renewal, extension or modification
of the Guaranteed Obligations or any agreement related thereto, notices of any
extension of credit to the Borrower and notices of any of the matters referred
to in Section 7.4 and any right to consent to any thereof; and any defenses or
benefits that may be derived from or afforded by law which limit the liability
of or exonerate guarantors or sureties, or which may conflict with the terms
hereof.
7.6 Guarantors' Rights of Subrogation, Contribution, etc. Until the
Guaranteed Obligations shall have been indefeasibly paid in full and all
Commitments shall have terminated, each Guarantor hereby waives any claim, right
or remedy, direct or indirect, that such Guarantor now has or may hereafter have
against the Borrower or any other Guarantor or any of its assets in connection
with this Guaranty or the performance by such Guarantor of its obligations
hereunder, in each case whether such claim, right or remedy arises in equity,
under contract, by statute, under common law or otherwise and including without
limitation any right of subrogation, reimbursement or indemnification that such
Guarantor now has or may hereafter have against the Borrower with respect to the
Guaranteed Obligations, any right to enforce, or to participate in, any claim,
right or remedy that any Beneficiary now has or may hereafter have against the
Borrower, and any benefit of, and any right to participate in, any collateral or
security now or hereafter held by any Beneficiary. In addition, until the
Guaranteed Obligations shall have been indefeasibly paid in full in Cash and the
Tranche B Term Loan Commitments
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shall have terminated and all Letters of Credit shall have expired or been
cancelled, each Guarantor shall withhold exercise of any right of contribution
such Guarantor may have against any other guarantor (including any other
Guarantor) of the Guaranteed Obligations, including, without limitation, any
such right of contribution as contemplated by Section 7.2. Each Guarantor
further agrees that, to the extent the waiver or agreement to withhold the
exercise of its rights of subrogation, reimbursement, indemnification and
contribution as set forth herein is found by a court of competent jurisdiction
to be void or voidable for any reason, any rights of subrogation, reimbursement
or indemnification such Guarantor may have against the Borrower or against any
collateral or security, and any rights of contribution such Guarantor may have
against any such other guarantor, shall be junior and subordinate to any rights
any Beneficiary may have against the , to all right, title and interest any
Beneficiary may have in any such collateral or security, and to any right any
Beneficiary may have against such other guarantor. If any amount shall be paid
to any Guarantor on account of any such subrogation, reimbursement,
indemnification or contribution rights at any time when all Guaranteed
Obligations shall not have been finally and indefeasibly paid in full in Cash,
such amount shall be held in trust for Administrative Agent on behalf of
Beneficiaries and shall forthwith be paid over to Administrative Agent for the
benefit of Beneficiaries to be credited and applied against the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms hereof.
7.7 Subordination of Other Obligations. Any Indebtedness of any
Borrower or any Guarantor now or hereafter held by any Guarantor (the "Obligee
Guarantor") is hereby subordinated in right of payment to the Guaranteed
Obligations, and any such indebtedness collected or received by the Obligee
Guarantor after an Event of Default has occurred and is continuing shall be held
in trust for Administrative Agent on behalf of Beneficiaries and shall forthwith
be paid over to Administrative Agent for the benefit of Beneficiaries to be
credited and applied against the Guaranteed Obligations but without affecting,
impairing or limiting in any manner the liability of the Obligee Guarantor under
any other provision hereof.
7.8 Continuing Guaranty. This Guaranty is a continuing guaranty and
shall remain in effect until all of the Guaranteed Obligations shall have been
finally and indefeasibly paid in full in Cash and the Tranche B Term Loan
Commitments shall have terminated. Each Guarantor hereby irrevocably waives any
right to revoke this Guaranty as to future transactions giving rise to any
Guaranteed Obligations.
7.9 Authority of Guarantors or Borrower. It is not necessary for any
Beneficiary to inquire into the capacity or powers of any Guarantor or the
Borrower or the officers, directors or any agents acting or purporting to act on
behalf of any of them.
7.10 Financial Condition of Borrower. Any Credit Extension may be
made to the Borrower or continued from time to time, and any Hedge Agreements
may be entered into from time to time, in each case without notice to or
authorization from any Guarantor regardless of the financial or other condition
of Company at the time of any such grant or continuation or at the time such
Hedge Agreement is entered into, as the case may be. No Beneficiary shall have
any obligation to disclose or discuss with any Guarantor its assessment, or any
Guarantor's assessment, of the financial condition of the Borrower. Each
Guarantor has adequate means to obtain information from the Borrower on a
continuing basis concerning the financial condition of
89
the Borrower and its ability to perform its obligations under the Credit
Documents and the Hedge Agreements, and each Guarantor assumes the
responsibility for being and keeping informed of the financial condition of the
Borrower and of all circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations. Each Guarantor hereby waives and relinquishes any duty
on the part of any Beneficiary to disclose any matter, fact or thing relating to
the business, operations or conditions of the Borrower now known or hereafter
known by any Beneficiary.
7.11 Bankruptcy, etc. So long as any Guaranteed Obligations remain
outstanding, no Guarantor shall, without the prior written consent of
Administrative Agent acting pursuant to the instructions of Requisite Lenders,
commence or join with any other Person in commencing any bankruptcy,
reorganization or insolvency case or proceeding of or against the Borrower or
any other Guarantor. The obligations of Guarantors hereunder shall not be
reduced, limited, impaired, discharged, deferred, suspended or terminated by any
case or proceeding, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, liquidation or arrangement of the
Borrower or any other Guarantor or by any defense which the Borrower or any
other Guarantor may have by reason of the order, decree or decision of any court
or administrative body resulting from any such proceeding.
(a) Each Guarantor acknowledges and agrees that any interest
on any portion of the Guaranteed Obligations which accrues after the
commencement of any case or proceeding referred to in clause (a) above (or, if
interest on any portion of the Guaranteed Obligations ceases to accrue by
operation of law by reason of the commencement of such case or proceeding, such
interest as would have accrued on such portion of the Guaranteed Obligations if
such case or proceeding had not been commenced) shall be included in the
Guaranteed Obligations because it is the intention of Guarantors and
Beneficiaries that the Guaranteed Obligations which are guaranteed by Guarantors
pursuant hereto should be determined without regard to any rule of law or order
which may relieve the Borrower of any portion of such Guaranteed Obligations.
Guarantors will permit any trustee in bankruptcy, receiver, debtor in
possession, assignee for the benefit of creditors or similar person to pay
Administrative Agent, or allow the claim of Administrative Agent in respect of,
any such interest accruing after the date on which such case or proceeding is
commenced.
(b) In the event that all or any portion of the Guaranteed
Obligations are paid by the Borrower, the obligations of Guarantors hereunder
shall continue and remain in full force and effect or be reinstated, as the case
may be, in the event that all or any part of such payment(s) are rescinded or
recovered directly or indirectly from any Beneficiary as a preference,
fraudulent transfer or otherwise (whether by demand, settlement, litigation or
otherwise), and any such payments which are so rescinded or recovered shall
constitute Guaranteed Obligations for all purposes hereunder.
7.12 Notice of Events. As soon as any Guarantor obtains knowledge
thereof, such Guarantor shall give Administrative Agent written notice of any
condition or event which has resulted in a material adverse change in the
financial conditions of any Guarantor or the Borrower or a breach of or
noncompliance with any term, condition or covenant contained herein, any other
Credit Document, any Hedge Agreement or any other document delivered pursuant
hereto or thereto.
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7.13 Discharge of Guaranty Upon Sale of Guarantor. If all of the
Capital Stock of any Guarantor that is a Subsidiary of Company or any of its
successors in interest hereunder shall be sold or otherwise disposed of
(including by merger or consolidation) in accordance with the terms and
conditions hereof, the Guaranty of such Guarantor or such successor in interest,
as the case may be, hereunder shall automatically be discharged and released
without any further action by any Beneficiary or any other Person effective as
of the time of such Asset Sale; provided, as a condition precedent to such
--------
discharge and release, Administrative Agent shall have received evidence
satisfactory to it that arrangements satisfactory to it have been made for
delivery to Administrative Agent of the applicable Net Asset Sale Proceeds of
such disposition pursuant to Section 2.12(a).
SECTION 8. EVENTS OF DEFAULT
8.1 Events of Default. If any one or more of the following
conditions or events (each, an Event of Default) shall occur:
(a) Failure to Make Payments When Due. Failure by the Borrower
---------------------------------
to pay (i) when due any installment of principal of any Loan, whether at stated
maturity, by acceleration, by notice of voluntary prepayment, by mandatory
prepayment or otherwise; or (ii) any interest on any Loan or any fee or any
other amount due hereunder or under any of the other Credit Documents within
five (5) days after the date due; or
(b) Default in Other Agreements. Failure of any Credit Party
---------------------------
to pay when due any principal of or interest on or any other amount payable in
respect of one or more items of Indebtedness (other than Indebtedness referred
to in Section 8.1(a)) in an individual principal amount of $250,000 or more or
with an aggregate principal amount of $1,000,000 or more, in each case beyond
the grace period, if any, provided therefor; or (ii) breach or default by any
Credit Party with respect to any other material term of one or more items of
Indebtedness in the individual or aggregate principal amounts referred to in
clause (i) above or any loan agreement, mortgage, indenture or other agreement
relating to such item(s) of Indebtedness; or (iii) breach or default by any
Credit Party with respect to any other term of Permitted Equipment Financing or
Permitted Unsecured Debt, in each case beyond the grace period, if any, provided
therefor, if the effect of such breach or default is to cause, or to permit the
holder or holders of that Indebtedness (or a trustee on behalf of such holder or
holders), to cause, that Indebtedness to become or be declared due and payable
(or redeemable) prior to its stated maturity or the stated maturity of any
underlying obligation, as the case may be; or
(c) Breach of Certain Covenants. Failure of any Credit Party
---------------------------
to perform or comply with any term or condition contained in Section 2.4,
Section 5.1(h), Section 5.2 or Section 6; or failure to comply with any material
term or condition governing insurance of Company required pursuant to Section
5.5 for a period of 15 days from the time of receipt of notice under the
applicable insurance agreement;
(d) Breach of Representations, etc. Any representation,
------------------------------
warranty, certification or other statement made or deemed made by any Credit
Party in any Credit Document or in any statement or certificate at any time
given by any Credit Party or any of its
91
Subsidiaries in writing pursuant hereto or thereto or in connection herewith or
therewith shall be false in any material respect as of the date made or deemed
made; or
(e) Other Defaults Under Credit Documents. Any Credit Party
-------------------------------------
shall default in the performance of or compliance with any term contained herein
or any of the other Credit Documents, other than any such term referred to in
any other Section of this Section 8.1, and such default shall not have been
remedied or waived within thirty (30) days after the earlier of (i) an officer
of such Credit Party becoming aware of such default or (ii) receipt by the
Borrower of notice from Administrative Agent or any Lender of such default; or
(f) Involuntary Bankruptcy; Appointment of Receiver, etc. (i)
----------------------------------------------------
A court of competent jurisdiction shall enter a decree or order for relief in
respect of Company or any of its Restricted Subsidiaries in an involuntary case
under the Bankruptcy Code or under any other applicable bankruptcy, insolvency
or similar law now or hereafter in effect, which decree or order is not stayed;
or any other similar relief shall be granted under any applicable federal or
state law; or (ii) an involuntary case shall be commenced against Company or any
of its Restricted Subsidiaries under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect; or
a decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or other
officer having similar powers over Company or any of its Restricted
Subsidiaries, or over all or a substantial part of its property, shall have been
entered; or there shall have occurred the involuntary appointment of an interim
receiver, trustee or other custodian of Company or any of its Restricted
Subsidiaries for all or a substantial part of its property; or a warrant of
attachment, execution or similar process shall have been issued against any
substantial part of the property of Company or any of its Restricted
Subsidiaries, and any such event described in this clause (ii) shall continue
for sixty (60) days without having been dismissed, bonded or discharged; or
(g) Voluntary Bankruptcy; Appointment of Receiver, etc.. (i)
---------------------------------------------------
Company or any of its Restricted Subsidiaries shall have an order for relief
entered with respect to it or shall commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or shall consent to the appointment of or
taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; or Company or any of its Restricted
Subsidiaries shall make any assignment for the benefit of creditors; or (ii)
Company or any of its Restricted Subsidiaries shall be unable, or shall fail
generally, or shall admit in writing its inability, to pay its debts as such
debts become due; or the board of directors (or similar governing body) of
Company or any of its Restricted Subsidiaries (or any committee thereof) shall
adopt any resolution or otherwise authorize any action to approve any of the
actions referred to herein or in Section 8.1(f); or
(h) Judgments and Attachments. Any money judgment, writ or
-------------------------
warrant of attachment or similar process involving (i) in any individual case an
amount in excess of $250,000 or (ii) in the aggregate at any time an amount in
excess of $1,000,000 (in either case to the extent not adequately covered by
insurance as to which a solvent and unaffiliated insurance Company has
acknowledged coverage) shall be entered or filed against Company or
92
any of its Restricted Subsidiaries or any of their respective assets and shall
remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60)
days (or in any event later than five days prior to the date of any proposed
sale thereunder); or
(i) Dissolution. Any order, judgment or decree shall be
-----------
entered against any Credit Party decreeing the dissolution or split up of such
Credit Party and such order shall remain undischarged or unstayed for a period
in excess of thirty (30) days; or
(j) Employee Benefit Plans. There shall occur one or more
----------------------
ERISA Events which individually or in the aggregate results in or might
reasonably be expected to result in liability of Company, any of its Restricted
Subsidiaries or any of their respective ERISA Affiliates in excess of $1,500,000
during the term hereof; or there shall exist an amount of unfunded benefit
liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the
aggregate for all Pension Plans (excluding for purposes of such computation any
Pension Plans with respect to which assets exceed benefit liabilities), which
exceeds $500,000; or
(k) Change of Control. A Change of Control shall occur;
-----------------
(l) Guaranties, Collateral Documents and other Credit
-------------------------------------------------
Documents. At any time after the execution and delivery thereof, (i) the
---------
Guaranty for any reason, other than the satisfaction in full of all Obligations
in Cash, shall cease to be in full force and effect (other than in accordance
with its terms) or shall be declared to be null and void or any Guarantor shall
repudiate its obligations thereunder, (ii) this Agreement or any Collateral
Document ceases to be in full force and effect (other than by reason of a
release of Collateral in accordance with the terms hereof or thereof or the
satisfaction in full of the Obligations in Cash in accordance with the terms
hereof) or shall be declared null and void, or Collateral Agent shall not have
or shall cease to have a valid and perfected Lien in any Collateral (other than
by reason of a release of Collateral in accordance with the terms hereof or
thereof or willful misconduct or the part of the Collateral Agent) purported to
be covered by the Collateral Documents with the priority required by the
relevant Collateral Document, or (iii) any Credit Party shall contest the
validity or enforceability of any Credit Document in writing or deny in writing
that it has any further liability, including with respect to future advances by
Lenders, under any Credit Document to which it is a party; or
(m) The Company or any Restricted Subsidiary is in default on
any obligation to make base rental payments under at least one lease with
respect to either (i) each of any three Leasehold Properties which are Permitted
IBX Facilities or (ii) any Leasehold Properties which are designated as "San
▇▇▇▇ IBX" and "Secaucus IBX", respectively, on Schedule 1.1(a).
THEN, (1) upon the occurrence of any Event of Default described in Section
8.1(f) or 8.1(g), automatically, and (2) upon the occurrence of any other Event
of Default, at the request of (or with the consent of) Requisite Lenders, upon
notice to Company by Administrative Agent, (A) the Tranche B Term Loan
Commitments of each Lender having such Tranche B Term Loan Commitments shall
immediately terminate; (B) each of the following shall immediately become due
and payable, in each case without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by each
Credit Party: (i) the unpaid principal
93
amount of and accrued interest on the Loans, and (ii) all other Obligations; (C)
the Administrative Agent may cause the Collateral Agent to enforce any and all
Liens and security interests created pursuant to the Collateral Documents; and
(C) the Lenders and Agents may exercise all other remedies available under
Applicable Law (or under the Credit Documents).
SECTION 9. AGENTS
9.1 Appointment of Agents. GSCP is hereby appointed a Joint Lead
Arranger, a Joint Book Runner and Syndication Agent hereunder, and each Lender
hereby authorizes Joint Lead Arranger, Joint Book Runner and Syndication Agent
to act as its agents in accordance with the terms hereof and the other Credit
Documents. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. is hereby appointed a Joint Lead Arranger
and a Joint Book Runner. Citicorp USA, Inc. is hereby appointed Administrative
Agent (for purposes of this Section 9, the terms "Administrative Agent" and
"Agent" shall also include CIT Lending Services Corporation in its capacity as
Collateral Agent pursuant to the Collateral Documents) hereunder and under the
other Credit Documents and each Lender hereby authorizes Administrative Agent to
act as its agent in accordance with the terms hereof and the other Credit
Documents. Each Agent hereby agrees to act upon the express conditions contained
herein and the other Credit Documents, as applicable. The provisions of this
Section 9 are solely for the benefit of Agents and Lenders and no Credit Party
shall have any rights as a third party beneficiary of any of the provisions
thereof. In performing its functions and duties hereunder, each Agent shall act
solely as an agent of Lenders and does not assume and shall not be deemed to
have assumed any obligation towards or relationship of agency or trust with or
for Company or any of its Subsidiaries. Each of Joint Lead Arrangers, Joint Book
Runners, Syndication Agent and Documentation Agent, without consent of or notice
to any party hereto, may assign any and all of its rights or obligations
hereunder to any of its Affiliates. As of the Closing Date, all the respective
obligations of GSCP and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., in their respective
capacities as Joint Lead Arranger and Joint Book Runner and GSCP in its capacity
as Syndication Agent, shall terminate (except as otherwise expressly set forth
herein). CIT Lending Services Corporation is hereby appointed as the Collateral
Agent under the Pledge and Security Agreement and the other Collateral Documents
and each Agent and each Lender hereby authorizes CIT Lending Services
Corporation to act as Collateral Agent for its benefit and for the benefit of
the other Secured Parties hereunder and under the other Credit Documents and
each Agent and each Lender hereby authorizes Collateral Agent to act as its
agent in accordance with the terms hereof and the other Credit Documents. Each
Lender further authorizes the Administrative Agent to be the agent in connection
with the Guaranty.
9.2 Powers and Duties. Each Lender irrevocably authorizes each Agent
to take such action on such Lender's behalf and to exercise such powers, rights
and remedies hereunder and under the other Credit Documents as are specifically
delegated or granted to such Agent by the terms hereof and thereof, together
with such powers, rights and remedies as are reasonably incidental thereto. Each
Agent shall have only those duties and responsibilities that are expressly
specified herein and the other Credit Documents. Each Agent may exercise such
powers, rights and remedies and perform such duties by or through its agents or
employees. No Agent shall have, by reason hereof or any of the other Credit
Documents, a fiduciary relationship in respect of any Lender; and nothing herein
or any of the other Credit Documents, expressed or implied, is intended to or
shall be so construed as to impose upon any Agent any obligations in
94
respect hereof or any of the other Credit Documents except as expressly set
forth herein or therein.
9.3 General Immunity.
(a) No Responsibility for Certain Matters. No Agent shall be
-------------------------------------
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectability or sufficiency hereof or any other
Credit Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statements or in any
financial or other statements, instruments, reports or certificates or any other
documents furnished or made by any of Agent to Lenders or by or on behalf of any
Credit Party to any Agent or any Lender in connection with the Credit Documents
and the transactions contemplated thereby or for the financial condition or
business affairs of any Credit Party or any other Person liable for the payment
of any Obligations, nor shall any Agent be required to ascertain or inquire as
to the performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained in any of the Credit Documents or as to the
use of the proceeds of the Loans or as to the existence or possible existence of
any Event of Default or Default. Anything contained herein to the contrary
notwithstanding, Administrative Agent shall not have any liability arising from
confirmations of the amount of outstanding Loans or the component amounts
thereof.
(b) Exculpatory Provisions. No Agent nor any of its officers,
----------------------
partners, directors, employees or agents shall be liable to Lenders for any
action taken or omitted by any Agent under or in connection with any of the
Credit Documents except to the extent caused by such Agent's gross negligence or
willful misconduct. Each Agent shall be entitled to refrain from any act or the
taking of any action (including the failure to take an action) in connection
herewith or any of the other Credit Documents or from the exercise of any power,
discretion or authority vested in it hereunder or thereunder unless and until
such Agent shall have received instructions in respect thereof from Requisite
Lenders (or such other Lenders as may be required to give such instructions
under Section 10.5) and, upon receipt of such instructions from Requisite
Lenders (or such other Lenders, as the case may be), such Agent shall be
entitled to act or (where so instructed) refrain from acting, or to exercise
such power, discretion or authority, in accordance with such instructions.
Without prejudice to the generality of the foregoing, (i) each Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
communication, instrument or document believed by it to be genuine and correct
and to have been signed or sent by the proper Person or Persons, and shall be
entitled to rely and shall be protected in relying on opinions and judgments of
attorneys (who may be in-house or attorneys for Company and its Subsidiaries),
accountants, experts and other professional advisors selected by it; and (ii) no
Lender shall have any right of action whatsoever against any Agent as a result
of such Agent acting or (where so instructed) refraining from acting hereunder
or any of the other Credit Documents in accordance with the instructions of
Requisite Lenders (or such other Lenders as may be required to give such
instructions under Section 10.5).
9.4 Agents Entitled to Act as Lender. The agency hereby created
shall in no way impair or affect any of the rights and powers of, or impose any
duties or obligations upon, any Agent in its individual capacity as a Lender
hereunder. With respect to its participation in the Loans and the Letters of
Credit, each Agent, in its individual capacity, shall have the same
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rights and powers hereunder as any other Lender and may exercise the same as if
it were not performing the duties and functions delegated to it hereunder, and
the term "Lender" shall, unless the context clearly otherwise indicates, include
each Agent in its individual capacity. Any Agent, in its individual capacity,
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of banking, trust, financial advisory or other business with either
Borrower or any of its Affiliates as if it were not performing the duties
specified herein, and may accept fees and other consideration from either
Borrower for services in connection herewith and otherwise without having to
account for the same to Lenders.
9.5 Lenders' Representations, Warranties and Acknowledgment. Each
Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of Company and its
Subsidiaries in connection with Credit Extensions hereunder and that it has made
and shall continue to make its own appraisal of the creditworthiness of Company
and its Subsidiaries. No Agent shall have any duty or responsibility, either
initially or on a continuing basis, to make any such investigation or any such
appraisal on behalf of Lenders or to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter, and no Agent shall have
any responsibility with respect to the accuracy of or the completeness of any
information provided to Lenders.
9.6 Right to Indemnity. Each Lender, in proportion to its Pro Rata
Share, severally agrees to indemnify each Agent, to the extent that such Agent
shall not have been reimbursed by any Credit Party, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including reasonable counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against such Agent in exercising its powers, rights and remedies
or performing its duties hereunder or under the other Credit Documents or
otherwise in its capacity as such Agent in any way relating to or arising out
hereof or the other Credit Documents; provided, no Lender shall be liable for
--------
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such
Agent's gross negligence or willful misconduct. If any indemnity furnished to
any Agent for any purpose shall, in the opinion of such Agent, be insufficient
or become impaired, such Agent may call for additional indemnity and cease, or
not commence, to do the acts indemnified against until such additional indemnity
is furnished; provided, in no event shall this sentence require any Lender to
--------
indemnify any Agent against any liability, obligation, loss, damage, penalty,
action, judgment, suit, cost, expense or disbursement in excess of such Lender's
Pro Rata Share thereof; and provided further, this sentence shall not be deemed
-------- -------
to require any Lender to indemnify any Agent against any liability, obligation,
loss, damage, penalty, action, judgment, suit, cost, expense or disbursement
described in the proviso in the immediately preceding sentence.
9.7 Successor Administrative Agent and Collateral Agent.
(a) Successor Administrative Agent. Administrative Agent may
-------------------------------
resign at any time by giving thirty (30) days' prior written notice thereof to
Lenders and the Borrower, and Administrative Agent may be removed at any time
with or without cause by an instrument or concurrent instruments in writing
delivered to the Borrower and Administrative
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Agent and signed by Requisite Lenders. Upon any such notice of resignation or
any such removal, Requisite Lenders shall have the right, with the Borrower's
consent (which shall not be unreasonably withheld or delayed and which shall not
be required while a Default or Event of Default exists), to appoint a successor
Administrative Agent. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, that successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring or removed Administrative
Agent and the retiring or removed Administrative Agent shall promptly (i)
transfer to such successor Administrative Agent all records and other documents
necessary or appropriate in connection with the performance of the duties of the
successor Administrative Agent under the Credit Documents, and (ii) take such
other actions, as may be necessary or appropriate in connection with the
assignment to such successor Administrative Agent, whereupon such retiring or
removed Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Credit Documents.
(b) Successor Collateral Agent. Collateral Agent may resign at
--------------------------
any time by giving thirty (30) days' prior written notice thereof to
Administrative Agent, Lenders and the Borrower, and Collateral Agent may be
removed at any time with or without cause by an instrument or concurrent
instruments in writing delivered to the Borrower, Collateral Agent and
Administrative Agent and signed by Requisite Lenders. Upon any such notice of
resignation or any such removal, Requisite Lenders shall have the right, upon
five (5) Business Days' notice to the Administrative Agent, following receipt of
the Borrower's consent (which shall not be unreasonable withheld or delayed and
which shall not be required while an Event of Default exists), to appoint a
successor Collateral Agent. Upon the acceptance of any appointment as Collateral
Agent hereunder by a successor Collateral Agent, that successor Collateral Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Collateral Agent and the
retiring or removed Collateral Agent shall promptly (i) transfer to such
successor Collateral Agent all sums, Securities and other items of Collateral
held under the Collateral Documents, together with all records and other
documents necessary or appropriate in connection with the performance of the
duties of the successor Collateral Agent under the Credit Documents, and (ii)
execute and deliver to such successor Collateral Agent such amendments to
financing statements, and take such other actions, as may be necessary or
appropriate in connection with the assignment to such successor Collateral Agent
of the security interests created under the Collateral Documents, whereupon such
retiring or removed Collateral Agent shall be discharged from its duties and
obligations hereunder and under the other Credit Documents.
9.8 Collateral Documents and Guaranty.
(a) Agents under Collateral Documents and Guaranty. Each
----------------------------------------------
Lender hereby further authorizes Administrative Agent or Collateral Agent, as
applicable, on behalf of and for the benefit of Lenders, to be the agent for and
representative of Lenders with respect to the Guaranty, the Collateral and the
Collateral Documents. Subject to Section 10.5, without further written consent
or authorization from Lenders, each of Administrative Agent and Collateral
Agent, as applicable may execute any documents or instruments necessary to
release any Lien encumbering any item of Collateral (i) that is the subject of
(A) a sale or other disposition of assets (B) a Lien securing a Permitted
Equipment Financing or (ii) to which
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Requisite Lenders (or such other Lenders as may be required to give such consent
under Section 10.5) have otherwise consented or release any Guarantor from the
Guaranty pursuant to Section 7.13 or with respect to which Requisite Lenders (or
such other Lenders as may be required to give such consent under Section 10.5)
have otherwise consented; provided that in the case of clause (i)(B) above, such
release of Lien shall only be effectuated by the delivery of a release,
substantially in the form of Exhibit N attached hereto (with such additions and
deletions thereto in form and substance satisfactory to the Collateral Agent),
together with any other documents or instruments deemed reasonably necessary by
the Collateral Agent, by the Collateral Agent to Company. No UCC filings may be
made by Company with respect to the foregoing without the written consent of
Collateral Agent.
(b) Right to Realize on Collateral and Enforce Guaranty.
---------------------------------------------------
Anything contained in any of the Credit Documents to the contrary
notwithstanding, each Credit Party, each Agent and each Lender hereby agree that
no Lender shall have any right individually to realize upon any of the
Collateral or to enforce the Guaranty, it being understood and agreed that all
powers, rights and remedies hereunder may be exercised solely by Administrative
Agent for the benefit of Secured Parties, in accordance with the terms hereof
and all powers, rights and remedies under the Collateral Documents may be
exercised solely by Collateral Agent, and in the event of a foreclosure by
Collateral Agent on any of the Collateral pursuant to a public or private sale,
Collateral Agent or any Lender may be the purchaser of any or all of such
Collateral at any such sale and Collateral Agent, as agent for and
representative of Secured Parties (but not any Lender or Lenders in its or their
respective individual capacities unless Requisite Lenders shall otherwise agree
in writing) shall be entitled, for the purpose of bidding and making settlement
or payment of the purchase price for all or any portion of the Collateral sold
at any such public sale, to use and apply any of the Obligations as a credit on
account of the purchase price for any collateral payable by Collateral Agent at
such sale.
SECTION 10. MISCELLANEOUS
10.1 Notices. Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given to a
Credit Party, Joint Lead Arrangers, Joint Book Runners, Syndication Agent,
Collateral Agent, Administrative Agent, or Documentation Agent, shall be sent to
such Person's address as set forth on Appendix B or in the other relevant Credit
Document, and in the case of any Lender, the address as indicated on Appendix B
or otherwise indicated to Administrative Agent in writing. Each notice hereunder
shall be in writing and may be personally served, telexed or sent by
telefacsimile or United States mail or courier service and shall be deemed to
have been given when delivered in person or by courier service and signed for
against receipt thereof, upon receipt of telefacsimile or telex, or three (3)
Business Days after depositing it in the United States mail with postage prepaid
and properly addressed; provided, no notice to any Agent shall be effective
--------
until received by such Agent.
10.2 Expenses. Whether or not the transactions contemplated hereby
shall be consummated, Company agrees to pay promptly all the actual and
reasonable costs and expenses of Agents and Lenders associated with the expenses
of preparation of the Credit Documents and any consents, amendments, waivers or
other modifications thereto; all the costs of furnishing all opinions by counsel
for any Credit Party; the reasonable fees, expenses and
98
disbursements of counsel to Agents (in each case including allocated costs of
internal counsel) in connection with the negotiation, preparation, execution and
administration of the Credit Documents and any consents, amendments, waivers or
other modifications thereto and any other documents or matters requested by any
Credit Party; all the actual costs and reasonable expenses of creating,
perfecting, maintaining and terminating Liens in favor of Collateral Agent, for
the benefit of Secured Parties pursuant hereto, including filing and recording
fees, expenses and taxes, stamp or documentary taxes, search fees, title
insurance premiums and reasonable fees, expenses and disbursements of counsel to
each Agent and of counsel providing any opinions that any Agent or Requisite
Lenders may request in respect of the Collateral or the Liens created pursuant
to the Collateral Documents; all the actual costs and reasonable fees, expenses
and disbursements of any auditors, accountants, consultants or appraisers; all
the actual costs and reasonable expenses (including the reasonable fees,
expenses and disbursements of any appraisers, consultants, advisors and agents
employed or retained by Administrative Agent or Collateral Agent and their
respective counsel) in connection with the custody or preservation of any of the
Collateral of the perfection of the Liens thereon; all other actual and
reasonable costs and expenses incurred by each Agent in connection with the
negotiation, preparation and execution of the Credit Documents and any consents,
amendments, waivers or other modifications thereto and the transactions
contemplated thereby; and after the occurrence of a Default or an Event of
Default, all costs and expenses, including reasonable attorneys' fees (including
allocated costs of internal counsel) and costs of settlement, incurred by any
Agent and Lenders in enforcing any Obligations of or in collecting any payments
due from any Credit Party hereunder or under the other Credit Documents by
reason of such Default or Event of Default (including in connection with the
sale of, collection from, or other realization upon any of the Collateral or the
enforcement of the Guaranty) or in connection with any refinancing or
restructuring of the credit arrangements provided hereunder in the nature of a
"work-out" or pursuant to any insolvency or bankruptcy cases or proceedings.
10.3 Indemnity. In addition to the payment of expenses pursuant to
Section 10.2, whether or not the transactions contemplated hereby shall be
consummated, each Credit Party agrees to defend (subject to Indemnitees'
selection of counsel), indemnify, pay and hold harmless, each Agent and Lender
and their respective Affiliates and each of their and their respective
Affiliates' officers, partners, directors, trustees, employees and agents (each,
an "Indemnitee"), from and against any and all Indemnified Liabilities;
provided, no Credit Party shall have any obligation to any Indemnitee hereunder
--------
with respect to any Indemnified Liabilities to the extent such Indemnified
Liabilities arise from the gross negligence or willful misconduct of that
Indemnitee, as determined by a court of competent jurisdiction in a final,
non-appealable judgment order or decree. To the extent that the undertakings to
defend, indemnify, pay and hold harmless set forth in this Section 10.3 may be
unenforceable in whole or in part because they are violative of any law or
public policy, the applicable Credit Party shall contribute the maximum portion
that it is permitted to pay and satisfy under applicable law to the payment and
satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of
them.
10.4 Set-Off. In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Lender is hereby authorized by each
Credit Party at any time or from time to time subject to the consent of
Administrative Agent (such consent not to be unreasonably withheld or delayed),
without notice to any Credit Party or to any other Person (other than
99
Administrative Agent), any such notice being hereby expressly waived, to set off
and to appropriate and to apply any and all deposits (general or special,
including Indebtedness evidenced by certificates of deposit, whether matured or
unmatured, but not including trust accounts) and any other Indebtedness at any
time held or owing by such Lender to or for the credit or the account of any
Credit Party against and on account of the obligations and liabilities of any
Credit Party to such Lender hereunder, the Letters of Credit and participations
therein and under the other Credit Documents, including all claims of any nature
or description arising out of or connected hereto, the Letters of Credit and
participations therein or with any other Credit Document, irrespective of
whether or not such Lender shall have made any demand hereunder or the principal
of or the interest on the Loans or any amounts in respect of the Letters of
Credit or any other amounts due hereunder or under any other Credit Documents
shall have become due and payable pursuant to Section 2 and although such
obligations and liabilities, or any of them, may be contingent or unmatured.
Each Credit Party hereby further grants to Administrative Agent and each Lender
a security interest in all Deposit Accounts maintained with Administrative Agent
or such Lender as security for the Obligations.
10.5 Amendments and Waivers.
(a) Requisite Lenders' Consent. Subject to Sections 10.5(b)
--------------------------
and 10.5(c), no amendment, modification, termination or waiver of any provision
of the Credit Documents, or consent to any departure by any Credit Party
therefrom, shall in any event be effective without the written concurrence of
the Requisite Lenders.
(b) Affected Lenders' Consent. Without the written consent of
-------------------------
each Lender (other than a Defaulting Lender) that would be affected thereby, no
amendment, modification, termination, or consent shall be effective if the
effect thereof would:
(i) extend the scheduled final maturity of any Loan or
Note;
(ii) waive, reduce or postpone any scheduled repayment
(but not prepayment), or waive or postpone the Tranche B Term Loan
Commitment Termination Date;
(iii) reduce the rate of interest on any Loan (other than
any waiver of any increase in the interest rate applicable to any Loan
pursuant to Section 2.10) or any fee payable hereunder;
(iv) extend the time for payment of any such interest or
fees;
(v) reduce the principal amount of any Loan;
(vi) amend, modify, terminate or waive any provision of
this Section 10.5(b) or Section 10.5(c) or Section 10.6(a);
(vii) amend the definition of "Requisite Lenders" or "Pro
Rata Share"; provided, with the consent of Requisite Lenders,
--------
additional extensions of credit pursuant hereto may be included in the
determination of "Requisite Lenders" or "Pro Rata Share" on
substantially the same basis as the Tranche A Term Loans, the
▇▇▇
▇▇▇▇▇▇▇ ▇ Term Loan Commitments and the Tranche B Term Loans, are
included on the Closing Date;
(viii) release or otherwise subordinate all or
substantially all of the Collateral or all or substantially all of the
Guarantors (or Company alone) from the Guaranty except as expressly
provided in the Credit Documents; or
(ix) consent to the assignment or transfer by any Credit
Party of any of its rights and obligations under any Credit Document.
(c) Other Consents. No amendment, modification, termination or
--------------
waiver of any provision of the Credit Documents, or consent to any departure by
any Credit Party therefrom, shall:
(i) increase any Tranche B Term Loan Commitment of any
Lender over the amount thereof then in effect without the consent of
such Lender; provided, no amendment, modification or waiver of any
--------
condition precedent, covenant, Default or Event of Default shall
constitute an increase in any Tranche B Term Loan Commitment of any
Lender;
(ii) amend the definition of "Requisite Class Lenders"
without the consent of Requisite Class Lenders of each Class affected
by such amendment; provided, with the consent of the Requisite Lenders,
--------
additional extensions of credit pursuant hereto may be included in the
determination of such "Requisite Class Lenders" on substantially the
same basis as the Tranche A Term Loans, the Tranche B Term Loan
Commitments, and the Tranche B Term Loans, are included on the Closing
Date;
(iii) alter the required application of any repayments or
prepayments as between Classes pursuant to Section 2.13 without the
consent of Requisite Class Lenders of each Class which is being
allocated a lesser repayment or prepayment as a result thereof;
provided, Requisite Lenders may waive, in whole or in part, any
--------
prepayment so long as the application, as between Classes, of any
portion of such prepayment which is still required to be made is not
altered;
(iv) amend, modify, terminate or waive any conditions to
or limitations with respect to borrowing Tranche B Term Loans set forth
in Section 3.2 (including, for such purposes of this clause (iv), any
amendment, waiver or termination of a condition or covenant referenced
in Section 3.2), Section 2.2(a) or any other provisions of this
Agreement without the consent of the holders of 66-2/3% of the Tranche
B Term Loan Commitments; and
(v) amend, modify, terminate or waive any provision of
Section 9 or Section 10 as the same applies to any Agent, or any other
provision hereof as the same applies to the rights or obligations of
any Agent, in each case without the consent of such Agent.
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(d) Execution of Amendments, etc. Administrative Agent may,
----------------------------
but shall have no obligation to, with the concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of such Lender. Any
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it was given. No notice to or demand on any Credit
Party in any case shall entitle any Credit Party to any other or further notice
or demand in similar or other circumstances. Any amendment, modification,
termination, waiver or consent effected in accordance with this Section 10.5
shall be binding upon each Lender at the time outstanding, each future Lender
and, if signed by a Credit Party, on such Credit Party.
10.6 Successors and Assigns; Participations.
(a) Generally. This Agreement shall be binding upon the
---------
parties hereto and their respective successors and assigns and shall inure to
the benefit of the parties hereto and the successors and assigns of Lenders. No
Credit Party's rights or obligations hereunder nor any interest therein may be
assigned or delegated by any Credit Party without the prior written consent of
all Lenders.
(b) Register. The Borrower, Administrative Agent and Lenders
--------
shall deem and treat the Persons listed as Lenders in the Register as the
holders and owners of the corresponding Tranche B Term Loan Commitments and
Loans listed therein for all purposes hereof, and no assignment or transfer of
any such Tranche B Term Loan Commitment or Loan shall be effective, in each
case, unless and until an Assignment Agreement effecting the assignment or
transfer thereof shall have been delivered to and accepted by Administrative
Agent and recorded in the Register as provided in Section 10.6(e). Prior to such
recordation, all amounts owed with respect to the applicable Tranche B Term Loan
Commitment or Loan shall be owed to the Lender listed in the Register as the
owner thereof, and any request, authority or consent of any Person who, at the
time of making such request or giving such authority or consent, is listed in
the Register as a Lender shall be conclusive and binding on any subsequent
holder, assignee or transferee of the corresponding Commitments or Loans.
(c) Right to Assign. Each Lender shall have the right at any
---------------
time to sell, assign or transfer all or a portion of its rights and obligations
under this Agreement, including, without limitation, all or a portion of its
Tranche B Term Loan Commitment or Loans owing to it, Note or Notes held by it,
or other Obligation (provided, however, that each such assignment shall be of a
--------- -------
uniform, and not varying, percentage of all rights and obligations under and in
respect of any Tranche B Term Loan and any related Tranche B Term Loan
Commitments):
(i) to any Person meeting the criteria of clause (i) of
the definition of the term of "Eligible Assignee" upon the giving of
notice to Borrower and Administrative Agent; and
(ii) to any Person meeting the criteria of clause (ii) of
the definition of the term of "Eligible Assignee" and, in the case of
assignments of Loans or Tranche B Term Loan Commitments to any such
Person (except in the case of assignments made by or to GSCP or to
another Lender), consented to by Borrower and
102
Administrative Agent (such consent not to be (x) unreasonably withheld
or delayed or, (y) in the case of Borrower, required at any time an
Event of Default shall have occurred and then be continuing; provided
--------
that, in any event, notice of such assignment shall be given promptly
to Borrower if its consent is not otherwise required); provided,
--------
further each such assignment pursuant to this Section 10.6(c)(ii) shall
be in an aggregate amount of not less than $1,000,000 (or such lesser
amount as may be agreed to by Borrower and Administrative Agent or as
shall constitute the aggregate amount of the Tranche B Term Loan
Commitments and other Obligations of the assigning Lender).
(d) Mechanics. The assigning Lender and the assignee thereof
---------
shall execute and deliver to Administrative Agent an Assignment Agreement,
together with (i) a processing and recordation fee of $2,000 in the case of all
assignments (except that only one fee shall be payable in the case of
contemporaneous assignments to Related Funds), and (ii) such forms, certificates
or other evidence, if any, with respect to United States federal income tax
withholding matters as the assignee under such Assignment Agreement may be
required to deliver to Administrative Agent pursuant to Section 2.19(c).
(e) Notice of Assignment. Upon its receipt of a duly executed
--------------------
and completed Assignment Agreement, together with the processing and recordation
fee referred to in Section 10.6(d) (and any forms, certificates or other
evidence required by this Agreement in connection therewith), Administrative
Agent shall record the information contained in such Assignment Agreement in the
Register, shall give prompt notice thereof to Borrower and shall maintain a copy
of such Assignment Agreement.
(f) Representations and Warranties of Assignee. Each Lender,
------------------------------------------
upon execution and delivery hereof or upon executing and delivering an
Assignment Agreement, as the case may be, represents and warrants as of the
Closing Date or as of the applicable Effective Date (as defined in the
applicable Assignment Agreement) that it is an Eligible Assignee; it has
experience and expertise in the making of or investing in commitments or loans
such as the applicable Tranche B Term Loan Commitments or Loans, as the case may
be; and it will make or invest in, as the case may be, its Tranche B Term Loan
Commitments or Loans for its own account in the ordinary course of its business
and without a present view to distribution of such Tranche B Term Loan
Commitments or Loans within the meaning of the Securities Act or the Exchange
Act or other federal securities laws (it being understood that, subject to the
provisions of this Section 10.6, the disposition of such Tranche B Term Loan
Commitments or Loans or any interests therein shall at all times remain within
its exclusive control).
(g) Effect of Assignment. Subject to the terms and conditions
--------------------
of this Section 10.6, as of the "Effective Date" specified in the applicable
Assignment Agreement: the assignee thereunder shall have the rights and
obligations of a "Lender" hereunder to the extent such rights and obligations
hereunder have been assigned to it pursuant to such Assignment Agreement and
shall thereafter be a party hereto and a "Lender" for all purposes hereof; the
assigning Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned thereby pursuant to such Assignment Agreement,
relinquish its rights (other than any rights which survive the termination
hereof under Section 10.8) and be released from its obligations hereunder (and,
in the case of an Assignment Agreement covering all or the remaining portion of
an assigning Lender's rights and obligations hereunder, such Lender shall
103
cease to be a party hereto; provided, anything contained in any of the Credit
--------
Documents to the contrary notwithstanding, (i) such assigning Lender shall
continue to be entitled to the benefit of all indemnities hereunder as specified
herein with respect to matters arising out of the prior involvement of such
assigning Lender as a Lender hereunder; (ii) the Tranche B Term Loan Commitments
shall be modified to reflect the Tranche B Term Loan Commitment of such assignee
and any remaining Tranche B Term Loan Commitment of such assigning Lender, if
any; and (iii) if any such assignment occurs after the issuance of any Note
hereunder, the assigning Lender shall, upon the effectiveness of such assignment
or as promptly thereafter as practicable, surrender its applicable Notes to
Administrative Agent for cancellation, and thereupon Borrower shall issue and
deliver new Notes, if so requested by the assignee and/or assigning Lender, to
such assignee and/or to such assigning Lender, with appropriate insertions, to
reflect the new Commitments and/or outstanding Loans of the assignee and/or the
assigning Lender.
(h) Participations. Each Lender shall have the right at any
--------------
time to sell one or more participations to any Person (other than Company, any
of its Subsidiaries or any of its Affiliates) in all or any part of its Tranche
B Term Loan Commitment, Loans or in any other Obligation. The holder of any such
participation, other than an Affiliate of the Lender granting such
participation, shall not be entitled to require such Lender to take or omit to
take any action hereunder except with respect to any amendment modification or
waiver that would (i) extend the final scheduled maturity of any Loan or Note in
which such participant is participating, or reduce the rate or extend the time
of payment of interest or fees thereon (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the participant's
participation over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of a mandatory reduction in the
Commitment shall not constitute a change in the terms of such participation, and
that an increase in any Commitment or Loan shall be permitted without the
consent of any participant if the participant's participation is not increased
as a result thereof), (ii) consent to the assignment or transfer by any Credit
Party of any of its rights and obligations under this Agreement or (iii) release
or subordinate all or substantially all of the Collateral under the Collateral
Documents or the Guarantors (except as expressly provided in the Credit
Documents) supporting the Loans hereunder in which such participant is
participating. All amounts payable by any Credit Party hereunder, including
amounts payable to such Lender pursuant to Section 2.17(c), 2.18 or 2.19, shall
be determined as if such Lender had not sold such participation. Each Credit
Party and each Lender hereby acknowledge and agree that, solely for purposes of
Sections 2.16 and 10.4, any participation will give rise to a direct obligation
of each Credit Party to the participant and the participant shall be considered
to be a "Lender."
(i) Certain Other Assignments. In addition to any other
-------------------------
assignment permitted pursuant to this Section 10.6, (i) any Lender may assign
and pledge all or any portion of its Loans, the other Obligations owed to such
Lender, and its Notes, if any, to secure obligations of such Lender, including,
without limitation, any pledge or assignment to secure obligations to any
Federal Reserve Bank or as collateral security for any loan or other financing
transaction as in or in connection with any securitization or similar
transaction, and this Section 10.6 shall not apply to any such pledge or
assignment of a security interest or other transaction described herein;
provided, (x) no Lender, as between Borrower and such Lender, shall be relieved
--------
of any of its obligations hereunder as a result of any such assignment and
pledge, and
104
provided further, (y) in no event shall the applicable Federal Reserve Bank or
-------- -------
trustee or other financing party be considered to be a "Lender" or be entitled
to require the assigning Lender to take or omit to take any action hereunder and
(z) any transfer of the rights and obligations of a "Lender" hereunder to any
Person upon the foreclosure of any pledge or security interest referred to in
this Section 10.6(i) may only be made pursuant to the provisions of Sections
10.6(c) through (e) governing assignments of interests in the Loans.
10.7 Independence of Covenants. All covenants hereunder shall be
given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or would otherwise be within the limitations of, another covenant
shall not avoid the occurrence of a Default or an Event of Default if such
action is taken or condition exists.
10.8 Survival of Representations, Warranties and Agreements. All
representations, warranties and agreements made herein shall survive the
execution and delivery hereof and the making of any Credit Extension.
Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections 2.17(c), 2.18, 2.19, 10.2,
10.3 and 10.4 and the agreements of Lenders set forth in Sections 2.16 and 9.6
shall survive the payment of the Loans.
10.9 No Waiver; Remedies Cumulative. No failure or delay on the part
of any Agent or any Lender in the exercise of any power, right or privilege
hereunder or under any other Credit Document shall impair such power, right or
privilege or be construed to be a waiver of any default or acquiescence therein,
nor shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other power, right or
privilege. The rights, powers and remedies given to each Agent and each Lender
hereby are cumulative and shall be in addition to and independent of all rights,
powers and remedies existing by virtue of any statute or rule of law or in any
of the other Credit Documents or any of the Hedge Agreements. Any forbearance or
failure to exercise, and any delay in exercising, any right, power or remedy
hereunder shall not impair any such right, power or remedy or be construed to be
a waiver thereof, nor shall it preclude the further exercise of any such right,
power or remedy.
10.10 Marshalling; Payments Set Aside. Neither any Agent nor any
Lender shall be under any obligation to marshal any assets in favor of any
Credit Party or any other Person or against or in payment of any or all of the
Obligations. To the extent that any Credit Party makes a payment or payments to
Administrative Agent or Lenders (or to Administrative Agent, on behalf of
Lenders), or Collateral Agent, Administrative Agent or Lenders enforce any
security interests or exercise their rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause (whether by demand, settlement, litigation or otherwise), then, to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied, and all Liens, rights and remedies therefor or related thereto,
shall be revived and continued in full force and effect as if such payment or
payments had not been made or such enforcement or setoff had not occurred.
105
10.11 Severability. In case any provision in or obligation hereunder
or any Note shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
10.12 Entire Agreement. This Agreement (together with the Exhibits
hereto, the Schedules hereto and the other agreements, documents and instruments
delivered in connection herewith) and the Credit Documents constitute the entire
agreement among the parties with respect to the subject matter hereof and
thereof and supersede all other prior agreements and understandings, both
written and verbal, among the parties or any of them with respect to the subject
matter hereof.
10.13 Obligations Several; Independent Nature of Lenders' Rights.
The obligations of Lenders hereunder are several and no Lender shall be
responsible for the obligations or Tranche B Term Loan Commitment of any other
Lender hereunder. Nothing contained herein or in any other Credit Document, and
no action taken by Lenders pursuant hereto or thereto, shall be deemed to
constitute Lenders as a partnership, an association, a joint venture or any
other kind of entity. The amounts payable at any time hereunder to each Lender
shall be a separate and independent debt, and each Lender shall be entitled to
protect and enforce its rights arising hereunder and it shall not be necessary
for any other Lender to be joined as an additional party in any proceeding for
such purpose.
10.14 Headings. Section headings herein are included herein for
convenience of reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
10.15 APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401, SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK) WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
10.16 CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST ANY CREDIT PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT
DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇. BY
EXECUTING AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY ACCEPTS GENERALLY AND
UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; WAIVES
ANY DEFENSE OF FORUM NON CONVENIENS; AGREES THAT SERVICE OF ALL PROCESS IN ANY
SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED
IN ACCORDANCE WITH SECTION 10.1; AGREES THAT SERVICE AS PROVIDED IN CLAUSE (c)
ABOVE IS
106
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN
ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHER WISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT; AND AGREES AGENTS AND LENDERS RETAIN THE RIGHT
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS
AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION.
10.17 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES
TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR
ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN
TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS
TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND
ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT
THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATION SHIP,
THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND
THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS.
EACH PARTY HERETO FURTHER WAR RANTS AND REPRESENTS THAT IT HAS REVIEWED THIS
WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING
(OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION
10.17 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR
ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
10.18 Confidentiality. Each Lender shall hold all non-public
information obtained pursuant to the requirements hereof and sufficiently
identified to such Lender as being non-public which has been identified as
confidential by Borrower in accordance with such Lender's customary procedures
for handling confidential information of this nature and in accordance with
prudent lending or investing practices, it being understood and agreed by each
Borrower that in any event a Lender may make disclosures to Affiliates of such
Lender (and to other persons authorized by a Lender or Agent to organize,
present or disseminate such information in connection with disclosures otherwise
made in accordance with this Section 10.18), disclosures reasonably required by
any bona fide or potential assignee, transferee or participant in connection
with the contemplated assignment, transfer or participation by such Lender of
any Loans, Tranche B Term Loan Commitments and other Obligations or any
107
participations therein or by any direct or indirect contractual counterparties
(or the professional advisors thereto) in Hedge Agreements (provided, such
counterparties and advisors are advised of and agree to be bound by the
provisions of this Section 10.18) or disclosures required or requested by any
governmental agency or representative thereof or by the NAIC or pursuant to
legal process; provided, unless specifically prohibited by applicable law or
--------
court order, each Lender shall make reasonable efforts to notify Borrower of any
request by any governmental agency or representative thereof (other than any
such request in connection with any examination of the financial condition or
other routine examination of such Lender by such governmental agency) for
disclosure of any such non-public information prior to disclosure of such
information; provided, further, that in no event shall any Lender be obligated
-------- -------
or required to return any materials furnished by Company or any of its
Subsidiaries; and provided, further, that notwithstanding the foregoing, each
-------- -------
Lender and its Affiliates shall have the right to (i) list the name and logo of
Borrower and the Guarantors, as provided by Borrower and the Guarantors from
time to time, and describe the transaction that is the subject of this Agreement
in their marketing materials and (ii) post such information, including, without
limitation, a customary "tombstone", on its web site.
10.19 Usury Savings Clause. Notwithstanding any other provision
herein, the aggregate interest rate charged with respect to any of the
Obligations, including all charges or fees in connection therewith deemed in the
nature of interest under applicable law shall not exceed the Highest Lawful
Rate. If the rate of interest (determined without regard to the preceding
sentence) under this Agreement (which for the avoidance of doubt shall include
any rate of interest under the Existing Credit Agreement) at any time exceeds
the Highest Lawful Rate, the outstanding amount of the Loans made hereunder
shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect. In addition, if when the Loans made hereunder are repaid
in full the total interest due hereunder (taking into account the increase
provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement
had at all times been in effect, then to the extent permitted by law, Borrower
shall pay to Administrative Agent, for the account of the Lenders, an amount
equal to the difference between the amount of interest paid and the amount of
interest which would have been paid if the Highest Lawful Rate had at all times
been in effect. Notwithstanding the foregoing, it is the intention of Lenders
and each Borrower to conform strictly to any applicable usury laws. Accordingly,
if any Lender contracts for, charges, or receives any consideration which
constitutes interest in excess of the Highest Lawful Rate, then any such excess
shall be cancelled automatically and, if previously paid, shall at such Lender's
option be applied to the outstanding amount of the Loans made hereunder or be
refunded to Borrower.
10.20 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
10.21 Effectiveness. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto and receipt by
Company and Administrative Agent of written or telephonic notification of such
execution and authorization of delivery thereof.
108
10.22 General Release. In consideration of the Agent's and Lenders'
execution of this Agreement, each Credit Party unconditionally and irrevocably
acquits and fully and forever releases and discharges each Lender, and Agent and
all their respective affiliates, partners, subsidiaries, officers, employees,
agents, attorneys, principals, directors and shareholders of such Persons, and
their respective heirs, legal representatives, successors and assigns
(collectively, the "Releasees") from any and all claims, demands, causes of
action, obligations, remedies, suits, damages and liabilities of any nature
whatsoever, whether now known, suspected or claimed, whether arising under
common law, in equity or under statute, which such Credit Party ever had or now
has against any of the Releasees and which may have arisen at any time prior to
the date hereof and which were in any manner related to the Existing Credit
Agreement, this Agreement, any other Credit Document now or hereafter in
existence or related documents, instruments or agreements or the enforcement or
attempted or threatened enforcement by any of the Releasees of any of their
respective rights, remedies or recourse related thereto (collectively, the
"Released Claims"). Each Credit Party covenants and agrees never to commence,
voluntarily aid in any way, prosecute or cause to be commenced or prosecuted
against any of the Releasees any action or other proceeding based upon any of
the Released Claims.
10.23 Amendment and Restatement. This Agreement is an amendment and
restatement of the Existing Credit Agreement, and, as such, all terms and
provisions supersede in their entirety the Existing Credit Agreement. All other
Collateral Documents previously delivered shall continue to secure the
Obligations as herein defined, and shall be in full force and effect as amended
and restated by this Agreement and the other Credit Documents. The Credit
Parties by executing this Agreement hereby reaffirm all of the Obligations under
the Existing Credit Agreement and the other Credit Documents, as amended hereby
[Remainder of page intentionally left blank]
109
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
EQUINIX, INC.
By:______________________________________
Name:
Title:
EQUINIX OPERATING CO., INC.
By:______________________________________
Name:
Title:
EQUINIX EUROPE, INC.
By:______________________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS
L.P., as Joint Lead Arranger, Joint Book
Runner, Syndication Agent and a Lender
By:______________________________________
Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.,
as Joint Lead Arranger and Joint Book
Runner
By:______________________________________
Authorized Signatory
CITICORP USA, INC.,
as Administrative Agent, and a Lender
By:______________________________________
Name:
Title:
CIT LENDING SERVICES
CORPORATION, as Collateral Agent and a
Lender
By:______________________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender
By:______________________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Lender
By:______________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA,
as a Lender
By:______________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as a Lender
By:______________________________________
Name:
Title:
COMERICA BANK, CALIFORNIA,
as a Lender
By:______________________________________
Name:
Title:
APPENDIX A-1
TO CREDIT AND GUARANTY AGREEMENT
Outstandings under Existing Credit Agreement
=============================================================================
Outstandings under Pro Rata
Lender Existing Credit Share
Agreement
=============================================================================
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P. $ 27,500,000 18.33%
-----------------------------------------------------------------------------
Citicorp USA, Inc./▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc. $ 27,500,000 18.33%
-----------------------------------------------------------------------------
General Electric Capital Corporation $ 25,000,000 16.67%
-----------------------------------------------------------------------------
The Chase Manhattan Bank $ 20,000,000 13.33%
-----------------------------------------------------------------------------
CIT Lending Services Corporation $ 15,000,000 10.00%
-----------------------------------------------------------------------------
The Bank of Nova Scotia $ 15,000,000 10.00%
-----------------------------------------------------------------------------
Bank of Tokyo-Mitsubishi Trust
Company $ 15,000,000 10.00%
-----------------------------------------------------------------------------
Comerica Bank, California $ 5,000,000 3.33%
-----------------------------------------------------------------------------
Total $150,000,000 100%
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇-▇
TO CREDIT AND GUARANTY AGREEMENT
Tranche A Term Loan Pro Rata Shares
===============================================================================
Pro
Lender Tranche A Term Loans Rata Share
===============================================================================
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P. $18,333,333.34 18.33%
-------------------------------------------------------------------------------
Citicorp USA, Inc./▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc. $18,333,333.33 18.33%
-------------------------------------------------------------------------------
General Electric Capital Corporation $16,666,666.67 16.67%
-------------------------------------------------------------------------------
The Chase Manhattan Bank $13,333,333.33 13.33%
-------------------------------------------------------------------------------
CIT Lending Services Corporation $ 10,000,000 10.00%
-------------------------------------------------------------------------------
The Bank of Nova Scotia $ 10,000,000 10.00%
-------------------------------------------------------------------------------
Bank of Tokyo-Mitsubishi Trust
Company $ 10,000,000 10.00%
-------------------------------------------------------------------------------
Comerica Bank, California $ 3,333,333.33 3.33%
-------------------------------------------------------------------------------
Total $ 100,000,000 100%
===============================================================================
APPENDIX A-3
TO CREDIT AND GUARANTY AGREEMENT
Tranche B Term Loan Commitments Pro Rata Shares
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇ Term Loan Pro Rata
Commitment Share
============================================================================
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P. $4,583,333.33 18.33%
----------------------------------------------------------------------------
Citicorp USA, Inc./▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc. $4,583,333.34 18.33%
----------------------------------------------------------------------------
General Electric Capital
Corporation $4,166,666.67 16.67%
----------------------------------------------------------------------------
The Chase Manhattan Bank $3,333,333.33 13.33%
----------------------------------------------------------------------------
CIT Lending Services Corporation $ 2,500,000 10.00%
----------------------------------------------------------------------------
The Bank of Nova Scotia $ 2,500,000 10.00%
----------------------------------------------------------------------------
Bank of Tokyo-Mitsubishi Trust
Company $ 2,500,000 10.00%
----------------------------------------------------------------------------
Comerica Bank, California $ 833,333.33 3.33%
----------------------------------------------------------------------------
Total $ 25,000,000 100%
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇-▇-▇
▇▇▇▇▇▇▇▇ ▇
TO CREDIT AND GUARANTY AGREEMENT
Notice Addresses
EQUINIX, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
EQUINIX OPERATING CO., INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
EQUINIX EUROPE, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
in each case, with a copy to:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & Freidenrich, LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.,
as Joint Lead Arranger, Joint Book Runner,
Syndication Agent and a Lender
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
APPENDIX B-2
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
as Joint Lead Arranger and Joint Book Runner
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
20th Floor, Zone 7
New York, New York 10043
Attention ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
APPENDIX B-3
CITICORP USA, INC.,
as Administrative Agent and a Lender
Administrative Agent's Principal Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
20th Floor, Zone 7
New York, New York 10043
Attention ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
APPENDIX B-4
CIT LENDING SERVICES CORPORATION
as Collateral Agent and a Lender
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice-President - Credit
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Vice-President - Legal
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
APPENDIX B-5
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
GE Capital Structured Finance Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
APPENDIX B-6
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as a Lender
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
APPENDIX ▇-▇
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as a Lender
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
APPENDIX B-8
THE CHASE MANHATTAN BANK,
as a Lender
Global Media and Telecommunications Group
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
APPENDIX ▇-▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
as a Lender
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▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
APPENDIX B-10