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EXHIBIT 10.18
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AETHER SYSTEMS LLC
as Borrower,
and
THE GUARANTORS PARTY HERETO
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$17,000,000
CREDIT AGREEMENT
Dated as of September 28, 1999
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▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
as Lead Arranger, Syndication Agent and Administrative Agent,
and
THE LENDERS PARTY HERETO
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
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Section 1. Definitions, Accounting Matters and Rules of Construction..............................................1
1.01. Certain Defined Terms..................................................................................1
1.02. Accounting Terms and Determinations...................................................................25
1.03. Types of Term Loans...................................................................................26
1.04. Rules of Construction.................................................................................26
Section 2. Term Loan Commitments, Conversions and Continuations, Fees, Register,
Prepayments and Replacement of Lenders................................................................27
2.01. Term Loans............................................................................................27
2.02. Borrowings............................................................................................27
2.03. Limit on LIBOR Loans..................................................................................27
2.04. Terminations and Reductions of Term Loan Commitments..................................................27
2.05. Fees..................................................................................................28
2.06. Lending Offices.......................................................................................28
2.07. Several Obligations of Lenders........................................................................28
2.08. Term Notes; Register..................................................................................28
2.09. Optional Prepayments and Conversions or Continuations of Term Loans...................................29
2.10. Mandatory Prepayments.................................................................................29
2.11. Replacement of Lenders................................................................................30
Section 3. Payments of Principal and Interest....................................................................31
3.01. Repayment of Term Loans; Extension of Final Maturity Date.............................................31
3.02. Interest..............................................................................................32
Section 4. Payments; Pro Rata Treatment; Computations; Etc.......................................................32
4.01. Payments..............................................................................................32
4.02. Pro Rata Treatment....................................................................................33
4.03. Computations..........................................................................................33
4.04. Minimum Amounts.......................................................................................34
4.05. Certain Notices.......................................................................................34
4.06. Non-Receipt of Funds by Administrative Agent..........................................................35
4.07. Right of Setoff; Sharing of Payments; Etc.............................................................36
Section 5. Yield Protection, Etc.................................................................................37
5.01. Additional Costs......................................................................................37
5.02. Inability to Determine Interest Rate..................................................................38
5.03. Illegality............................................................................................38
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5.04. Treatment of Affected Term Loans......................................................................38
5.05. Compensation..........................................................................................39
5.06. Net Payments..........................................................................................39
Section 6. Guarantee.............................................................................................42
6.01. The Guarantee.........................................................................................42
6.02. Obligations Unconditional.............................................................................42
6.03. Reinstatement.........................................................................................43
6.04. Subrogation; Subordination............................................................................44
6.05. Remedies..............................................................................................44
6.06. Instrument for the Payment of Money...................................................................44
6.07. Continuing Guarantee..................................................................................44
6.08. General Limitation on Guarantee Obligations...........................................................44
Section 7. Conditions Precedent..................................................................................45
7.02. Conditions to Initial Term Loans......................................................................49
7.03. Conditions to Initial and Subsequent Term Loans.......................................................50
7.04. Determinations Under Section 7........................................................................50
Section 8. Representations and Warranties........................................................................50
8.01. Corporate Existence; Compliance with Law..............................................................50
8.02. Financial Condition; Etc..............................................................................50
8.03. Litigation............................................................................................51
8.04. No Breach; No Default.................................................................................51
8.05. Action................................................................................................51
8.06. Approvals.............................................................................................52
8.07. ERISA.................................................................................................52
8.08. Taxes.................................................................................................52
8.09. Investment Company Act; Other Restrictions............................................................53
8.10. Environmental Matters.................................................................................53
8.11. Environmental Investigations..........................................................................53
8.12. Use of Proceeds.......................................................................................54
8.13. Subsidiaries, Etc.....................................................................................54
8.14. Ownership of Property; Liens..........................................................................54
8.15. Security Interest; Absence of Financing Statements; Etc...............................................54
8.16. Licenses and Permits..................................................................................54
8.17. True and Complete Disclosure; Exchange Act Filings....................................................55
8.18. Solvency..............................................................................................55
8.19. Contracts.............................................................................................55
8.20. Labor Matters.........................................................................................55
8.21. Subordinated Debt.....................................................................................55
8.22. Year 2000.............................................................................................56
8.23. Intellectual Property.................................................................................56
8.24. Existing Indebtedness.................................................................................56
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Section 9. Covenants.............................................................................................56
9.01. Financial Statements, Etc.............................................................................57
9.02. Litigation, Etc.......................................................................................60
9.03. Existence; Compliance with Law; Payment of Taxes; Inspection Rights;
Performance of Obligations; Etc....................................................................60
9.04. Insurance.............................................................................................61
9.05. Limitation on Lines of Business; Limitation on Activities of Borrower.................................61
9.06. Limitation on Fundamental Changes, Acquisitions or Dispositions.......................................61
9.07. Limitation on Liens...................................................................................63
9.08. Prohibition on Disqualified Capital Stock; Limitation on Indebtedness and
Contingent Obligations; Limitation on Designated Senior Debt.......................................64
9.09. Limitation on Investments; Limitation on Creation of Subsidiaries.....................................65
9.10. Limitation on Dividend Payments.......................................................................66
9.11. Financial Covenants...................................................................................66
9.12. Pledge or Mortgage of Additional Collateral...........................................................67
9.13. Security Interests; Further Issuances.................................................................67
9.14. Compliance with Environmental Laws....................................................................67
9.15. Limitation on Transactions with Affiliates............................................................68
9.16. Limitation on Accounting Changes; Limitation on Investment Company Status.............................68
9.17. Limitation on Activities of Aether Systems, Inc.......................................................68
9.18. Limitation on Certain Restrictions Affecting Subsidiaries.............................................68
9.19. Limitation on Payments or Prepayments of Indebtedness or Modification of
Debt Documents.....................................................................................68
9.20. Year 2000 Compliance..................................................................................69
9.21. Tax Sharing Arrangements..............................................................................69
9.22. Refinancing...........................................................................................69
9.23. Additional Obligors...................................................................................70
9.24. Limitation on Issuance or Dispositions of Equity Interests of Subsidiaries............................70
Section 10. Events of Default.....................................................................................71
Section 11. Agents................................................................................................74
11.01. General Provisions....................................................................................74
11.02. Indemnification.......................................................................................76
11.03. Consents Under Other Credit Documents.................................................................76
Section 12. Miscellaneous.........................................................................................76
12.01. Waiver................................................................................................76
12.02. Notices...............................................................................................76
12.03. Expenses, Indemnification, Etc........................................................................77
12.04. Amendments, Etc.......................................................................................78
12.05. Successors and Assigns................................................................................80
12.06. Assignments and Participations........................................................................80
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12.07. Survival..............................................................................................82
12.08. Captions..............................................................................................83
12.09. Counterparts; Interpretation; Effectiveness...........................................................83
12.10. Governing Law; Submission to Jurisdiction; Waivers; Etc...............................................83
12.11. Confidentiality.......................................................................................83
12.12. Independence of Representations, Warranties and Covenants.............................................84
12.13. Severability..........................................................................................84
Signatures.........................................................................................................S-1
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ANNEX A - Term Loan Commitments
SCHEDULE 1.01(a) - Guarantors
SCHEDULE 8.02(B) - Certain Contingent Obligations of Companies
SCHEDULE 8.03 - Litigation
SCHEDULE 8.08 - Tax Matters
SCHEDULE 8.10 - Environmental Matters
SCHEDULE 8.13 - Subsidiaries, Etc.
SCHEDULE 8.20 - Labor Matters
SCHEDULE 8.23 - Intellectual Property Matters
SCHEDULE 8.24 - Certain Indebtedness To Remain Outstanding
SCHEDULE 9.07 - Certain Existing Liens
SCHEDULE 9.09 - Investments
SCHEDULE 9.15 - Existing Affiliate Agreements
SCHEDULE 9.19 - Certain Restrictions Applicable to Subsidiaries
EXHIBIT A - Form of Term Note
EXHIBIT B - Form of Intercompany Note
EXHIBIT C - Form of Solvency Certificate
EXHIBIT D - Form of Counsel Opinion
EXHIBIT E - Form of Notice of Assignment
EXHIBIT F - Form of Notice of Borrowing
EXHIBIT G - Form of Notice of Conversion/Continuation
EXHIBIT H - Form of Foreign Lender Certificate
EXHIBIT I - Form of Assignment Agreement
EXHIBIT J - Form of Security Agreement
EXHIBIT K - Form of Extension Notice
EXHIBIT L - Form of Joinder Agreement
EXHIBIT M - Administrative Agent wiring instructions
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CREDIT AGREEMENT dated as of September 28, 1999, among AETHER SYSTEMS
LLC, as Borrower; the Guarantors party hereto; each of the lenders that is a
signatory hereto identified under the caption "LENDERS" on the signature pages
hereto or that shall become a "Lender" hereunder pursuant to Section 12.06(b)
(individually, a "Lender" and, collectively, the "Lenders"); ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
CO., ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, as lead arranger (in
such capacity, together with its successors in such capacity, "Lead Arranger"),
as administrative agent (in such capacity, together with its successors in such
capacity, "Administrative Agent"), and as syndication agent (in such capacity,
together with its successors in such capacity, "Syndication Agent").
The parties hereto agree as follows:
Section 1. Definitions, Accounting Matters and Rules of Construction.
1.01. Certain Defined Terms. As used herein, the following terms shall
have the following meanings:
"ABR Loans" shall mean Term Loans that bear interest at rates based upon
the Alternate Base Rate.
"Acquisition" shall mean, with respect to any Person, any transaction or
series of related transactions for the direct or indirect (a) acquisition of all
or substantially all of the Property of any other Person, or of any business or
division of any other Person, (b) acquisition of in excess of 50% of the Equity
Interests of any other Person, or otherwise causing any other Person to become a
Subsidiary of such Person, or (c) merger or consolidation or any other
combination with any other Person.
"Acquisition Agreement" shall mean the Stock Purchase Agreement dated as
of August 19, 1999 by and among Borrower, Mobeo and the selling stockholders
identified therein.
"Acquisition Consideration" shall mean the purchase consideration for any
Acquisition and all other payments made and liabilities incurred by any Company
in exchange for, or as part of the purchase price for, any Acquisition, whether
paid in cash or by exchange of Equity Interests or of Property or otherwise and
whether payable at or prior to the consummation of such Acquisition or deferred
for payment at any future time, whether or not any such future payment is
subject to the occurrence of any contingency, and includes any and all payments
and liabilities representing the purchase price and any assumptions of
liabilities, "earn-outs" and other Profit Payment Agreements and non-competition
agreements.
"Adjusted Net Income" shall mean, for any period, the consolidated net
income (loss) for such period, of the Consolidated Companies calculated in
accordance with GAAP, adjusted by excluding (to the extent taken into account in
the calculation of such consolidated net income (loss)) the effect of (a) gains
or losses for such period from Excluded Dispositions and Dispositions not in the
ordinary course of business, and the tax consequences thereof, (b) any
non-recurring or extraordinary items of income (other than the proceeds of
business interruption insurance) or expense for such
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period and the tax consequences thereof, (c) the portion of net income (loss) of
any Person (other than a Subsidiary) in which Borrower or any Subsidiary has an
ownership interest, except to the extent of the amount of cash dividends or
other cash distributions actually paid to Borrower or (subject to clause (e)
below) any Subsidiary during such period to the extent not in excess of such
Person's net income for such period, (d) the net income (loss) of any Person
combined with Borrower or any Subsidiary on a "pooling of interests" basis
attributable to any period prior to the date of combination, (e) the net income
of any Subsidiary to the extent that the declaration or payment of dividends or
similar distribution by such Subsidiary was not for the relevant period
permitted, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Subsidiary or its stockholders, and (f) any net gain from the
collection of proceeds of life insurance or "key man" insurance policies.
"Administrative Agent" see the introduction hereto.
"Administrative Agent's Fee Letter" shall mean any agreement entered into
by Borrower pursuant to which it shall agree to pay fees to a Lender for acting
as Administrative Agent under this Agreement.
"Advance Date" see Section 4.06.
"Affiliate" shall mean, with respect to any Person, any other Person
which directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (including,
with its correlative meanings, "controlled by" and "under common control with")
shall mean possession, direct or indirect, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
"Affiliate Transaction" see Section 9.15.
"Agent" shall mean any of Administrative Agent, Lead Arranger or
Syndication Agent.
"Agreement" shall mean this Credit Agreement, as amended from time to
time.
"Alternate Base Rate" shall mean for any day, the higher of (i) the
corporate base rate of interest announced by Administrative Agent from time to
time, as published for all loans of Lender, changing when said corporate base
rate changes, and (ii) the Federal Funds Rate plus 0.50% per annum. The
corporate base rate is not necessarily the lowest rate charged by Administrative
Agent to its customers.
"Applicable Lending Office" shall mean, for each Lender and for each Type
of Term Loan, the "Lending Office" of such Lender (or of an Affiliate of such
Lender) designated for such type of Term Loan on the signature pages hereof or
such other office of such Lender (or of an Affiliate of such Lender) as such
Lender may from time to time specify to Administrative Agent and Borrower in
writing as the office by which its Term Loans of such Type are to be made and
maintained.
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"Applicable Margin" shall be
(A) for LIBOR Loans, at any date, the percentage per annum set forth
opposite the period set forth below in which such date occurs:
Period Spread
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Closing - 10/31/99 500 bps
11/1/99-11/30/99 600 bps
thereafter 1000 bps
and (2) for ABR Loans, at any date, the percentage per
annum set forth opposite the period set forth below in which such date
occurs:
Period Spread
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Closing - 10/31/99 400 bps
11/1/99-11/30/99 500 bps
thereafter 900 bps
"Approved Fund" shall mean, with respect to any Lender that is a fund or
commingled investment vehicle that invests in loans, any other fund that invests
in loans and is managed or advised by the same investment advisor as such Lender
or by an Affiliate of such investment advisor.
"Assignment Agreement" shall mean an assignment agreement substantially
in the form of Exhibit I.
"Bankruptcy Code" shall mean the United States Federal Bankruptcy Code of
1978, as amended or supplemented.
"Borrower" shall mean Aether Systems LLC, a Delaware limited liability
company.
"Business Day" shall mean any day (a) on which commercial banks are not
authorized or required to close in New York City and (b) if such day relates to
a borrowing of, a payment or prepayment of principal of or interest on, a
Continuation or Conversion of or into, or an Interest Period for, a LIBOR Loan
or a notice by Borrower with respect to any such borrowing, payment, prepayment,
Continuation, Conversion or Interest Period, that is also a day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Capital Expenditures" shall mean, for any period, any direct or indirect
(by way of acquisition of securities of a Person or the expenditure of cash or
the incurrences of Indebtedness) expenditures in respect of the purchase or
other acquisition of fixed or capital assets, excluding (i) normal replacement
and maintenance programs properly charged to current operations, and (ii) the
purchase price of equipment to the extent that the consideration therefor
consists of used or surplus
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equipment being traded in at such time or the proceeds of a concurrent sale of
such used or surplus equipment.
"Capital Lease" shall mean, for any Person, any lease of any Property by
that Person as lessee which, in conformity with GAAP, is required to be
classified and accounted for as a capital lease on the balance sheet of that
Person.
"Capital Lease Obligations" shall mean, for any Person, all obligations
of such Person to pay rent or other amounts under a Capital Lease, and, for
purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP.
"Cash Equivalents" shall mean, for any Person: (a) direct obligations of
the United States of America, or of any agency thereof, or obligations
guaranteed as to principal and interest by the United States of America, or by
any agency thereof, in either case maturing not more than one year from the date
of acquisition thereof by such Person; (b) time deposits, certificates of
deposit or bankers' acceptances (including eurodollar deposits) issued by any
bank or trust company organized under the laws of the United States of America
or any state thereof and having capital, surplus and undivided profits of at
least $500.0 million and a deposit rating of investment grade; (c) commercial
paper rated A-1 or better by S&P or P-1 or better by ▇▇▇▇▇'▇, respectively,
maturing not more than 180 days from the date of acquisition thereof by such
Person; (d) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (a) above entered into
with a bank meeting the qualifications described in clause (b) above; (e)
securities with maturities of six months or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the United
States of America, or by any political subdivision or taxing authority thereof,
and rated at least A by S&P or A by ▇▇▇▇▇'▇; or (f) money market mutual funds
that invest primarily in the foregoing items.
"Casualty Event" shall mean, with respect to any Property of any Person,
any loss of title with respect to Real Property, or any loss of or damage to or
destruction of, or any condemnation or other taking (including by any
Governmental Authority) of, such Property for which such Person or any of its
Subsidiaries receives insurance proceeds or proceeds of a condemnation award or
other compensation; provided, however, no such event shall constitute a Casualty
Event if (x) such proceeds or other compensation in respect thereof is less than
$100,000 and (y) all such proceeds and other compensation in respect of all such
events since the Closing Date is less than $250,000. "Casualty Event" shall
include but not be limited to any taking of any Real Property of any Company or
any part thereof, in or by condemnation or other eminent domain proceedings
pursuant to any law, general or special, or by reason of the temporary
requisition of the use or occupancy of any Real Property of any Company or any
part thereof, by any Governmental Authority, civil or military.
"CERCLA" see Section 8.10.
"Change of Control" shall mean any transaction or event occurring on or
after the date hereof as a direct or indirect result of which (a) any Person or
any group (other than any Permitted Holder) shall (A) beneficially own (directly
or indirectly) in the aggregate Equity Interests of Bor-
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rower having 33 1/3% or more of the aggregate voting power of all Equity
Interests of Borrower at the time outstanding or (B) have the right or power to
appoint a majority of the board of directors of Borrower; (b) during any period
of two consecutive years, individuals who at the beginning of such period
constituted the board of directors of Borrower (together with any new directors
whose election by such board of directors or whose nomination for election by
the shareholders of Borrower was approved by a vote of a majority of the
directors of Borrower then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute at least a majority
of the board of directors of Borrower then in office; or (c) any event or
circumstance constituting a "change of control" under any documentation
evidencing or governing any Indebtedness of any Company in a principal amount in
excess of $10.0 million (other than under the Credit Documents) shall occur
which results in an obligation of any Company to prepay (by acceleration or
otherwise), purchase, offer to purchase, redeem or defease all or a portion of
such Indebtedness. For purposes of this definition, the terms "beneficially own"
and "group" shall have the respective meanings ascribed to them pursuant to
Section 13(d) of the Exchange Act, except that a Person or group shall be deemed
to "beneficially own" all securities that such Person or group has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time.
"Closing Date" see Section 7.01.
"Code" shall mean the United States Internal Revenue Code of 1986, as
amended or supplemented.
"Collateral" shall mean the Pledged Collateral as defined in the Security
Agreement.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Commitment Termination Date" shall mean April 15, 2000.
"Companies" shall mean Borrower and the Subsidiaries; and "Company" shall
mean any of them.
"Consolidated Companies" shall mean Borrower and its Consolidated
Subsidiaries.
"Consolidated Subsidiary" shall mean, for any Person, each Subsidiary of
such Person (whether now existing or hereafter created or acquired) the
financial statements of which are required to be consolidated with the financial
statements of such Person in accordance with GAAP.
"Contingent Obligation" shall mean, as to any Person, any direct or
indirect liability of such Person, whether or not contingent, with or without
recourse, (a) with respect to any Indebtedness, lease, dividend, letter of
credit or other obligation (the "primary obligations") of another Person (the
"primary obligor"), including any obligation of such Person (i) to purchase,
repurchase or otherwise acquire such primary obligations or any security
therefor, (ii) to advance or provide funds for the payment or discharge of any
such primary obligation, or to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet item,
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level of income or financial condition of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation, or (iv) otherwise to assure or hold harmless
the holder of any such primary obligation against loss in respect thereof (each
of (i)-(iv), a "Guaranty Obligation"); (b) with respect to any Surety Instrument
issued for the account of such Person or as to which such Person is otherwise
liable for reimbursement of drawings or payments; (c) to purchase any materials,
supplies or other property from, or to obtain the services of, another Person if
the relevant contract or other related document or obligation requires that
payment for such materials, supplies or other property, or for such services,
shall be made regardless of whether delivery of such materials, supplies or
other property is ever made or tendered, or such services are ever performed or
tendered; or (d) in respect of any Swap Contract; provided, however, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection or standard contractual indemnities entered into, in each
case in the ordinary course of business. The amount of any Contingent Obligation
shall (x) in the case of a Guaranty Obligation, be deemed equal to the stated or
determinable amount of the primary obligation in respect of which such Guaranty
Obligation is made or, if not stated or if indeterminable, the maximum
reasonably anticipated liability in respect thereof, and (y) in the case of
other Contingent Obligations, be equal to the maximum reasonably anticipated
liability in respect thereof.
"Continue", "Continuation" and "Continued" shall refer to the
continuation pursuant to Section 2.09 of a LIBOR Loan from one Interest Period
to the next Interest Period.
"Contractual Obligation" shall mean as to any Person, any provision of
any security issued by such Person or of any mortgage, security agreement,
pledge agreement, indenture, credit agreement, securities purchase agreement,
debt instrument, contract, agreement, instrument or other undertaking to which
such Person is a party or by which it or any of its Property is bound or
subject.
"Convert", "Conversion" and "Converted" shall refer to a conversion
pursuant to Section 2.09 of one Type of Term Loan into another Type of Term
Loan, which may be accompanied by the transfer by a Lender (at its sole
discretion) of a Term Loan from one Applicable Lending Office to another.
"Covered Taxes" see Section 5.06(a).
"Credit Documents" shall mean this Agreement, the Security Agreement and
the Term Notes.
"Creditor" shall mean each of (i) each Agent, (ii) each Lender, and (iii)
each party to a Swap Contract relating to the Term Loans if at the date of
entering into such Swap Contract such Person was a Lender or an Affiliate of a
Lender.
"Debt Issuance" shall mean the incurrence by any Company of any
Indebtedness after the Closing Date (other than as permitted by Section 9.08).
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"Default" shall mean any event or condition that constitutes an Event of
Default or that would become, with notice or lapse of time or both, an Event of
Default.
"Disposition" shall mean (i) any conveyance, sale, lease, assignment,
transfer or other disposition (including by way of merger or consolidation and
including any Sale and Leaseback Transaction) of any Property (including Equity
Interests of any Person owned by any Company) (whether owned on the Closing Date
or thereafter acquired) by any Company to any Person (other than (A) with
respect to any Obligor, to another Obligor and (B) with respect to any other
Company, to any Company), (ii) any issuance or sale by any Subsidiary of its
Equity Interests to any Person (other than any Company), and (iii) any
liquidating dividend or distribution received by any Company in respect of any
Minority Interest, excluding, however, in each case any Excluded Disposition
(except for purposes of defining the term "Excluded Disposition").
"Disposition Event" shall mean the receipt by any Company of cash
proceeds or cash distributions of any kind consideration for a Disposition.
"Disqualified Capital Stock" shall mean, with respect to any Person, any
Equity Interest of such Person that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon
the happening of any event, matures (excluding any maturity as the result of an
optional redemption by the issuer thereof) or is mandatorily redeemable (other
than solely for Qualified Capital Stock), pursuant to a sinking fund obligation
or otherwise, or is redeemable at the sole option of the holder thereof (other
than solely for Qualified Capital Stock) or exchangeable or convertible into
debt securities of the issuer thereof at the sole option of the holder thereof,
in whole or in part, on or prior to the date which is 90 days after the Final
Maturity Date (assuming the extension thereof to the latest date permitted
hereunder).
"Dividend Payment" shall mean dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any Equity Interests
or Equity Rights of any Company, but excluding dividends paid through the
issuance of additional shares of Qualified Capital Stock and any redemption or
exchange of any Qualified Capital Stock of such Obligor through the issuance of
Qualified Capital Stock of such Obligor.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"Eligible Person" shall mean (i) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100.0 million; (ii) a commercial bank organized under
the laws of any other country that is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus in a dollar equivalent amount
of at least $100.0 million; provided, however, that such bank is acting through
a branch or agency located in the country in which it is organized or another
country that is also a member of the OECD; (iii) an insurance company, mutual
fund or other entity which is regularly engaged in making, purchasing or
investing in loans or securities; or any other financial institution organized
under the laws of the United
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States, any state thereof, any other country that is a member of the OECD or a
political subdivision of any such country with assets, or assets under
management, in a dollar equivalent amount of at least $100.0 million; (iv) any
Affiliate of a Lender; (v) any other entity (other than a natural person) which
is an "accredited investor" (as defined in Regulation D under the Securities
Act) which extends credit or buys loans as one of its businesses, including, but
not limited to, insurance companies, mutual funds and investment funds; and (vi)
any other entity consented to by Lead Arranger, Administrative Agent and
Borrower. With respect to any Lender that is a fund or commingled investment
vehicle that invests in loans, any other fund or commingled investment vehicle
that invests in loans and is managed or advised by the same investment advisor
of such Lender or by an Affiliate of such investment advisor shall be treated as
a single Eligible Person.
"Employee Benefit Plan" shall mean an employee benefit plan (as defined
in Section 3(3) of ERISA) that is maintained or contributed to by any ERISA
Entity or with respect to which Borrower or a Subsidiary could incur liability.
"Environmental Claim" shall mean, with respect to any Person, any notice,
claim, demand or other communication (collectively, a "claim") by any other
Person alleging such Person's liability for any costs, cleanup costs, response
or corrective action costs, damages to natural resources or other Property,
personal injuries, fines or penalties arising out of or resulting from (i) the
presence, Release or threatened Release into the environment, of any Hazardous
Material at any location, whether or not owned by such Person, or (ii) any
violation of any Environmental Law. The term "Environmental Claim" shall include
any claim by any Person seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from the presence of
Hazardous Materials or arising from alleged injury or threat of injury to
health, safety or the environment.
"Environmental Laws" shall mean any and all present and future applicable
laws, rules or regulations of any Governmental Authority, any orders, decrees,
judgments or injunctions and the common law in each case as now or hereafter in
effect, relating to pollution or protection of human health, safety or the
environment, including without limitation, ambient air, indoor air, soil, or
surface water, ground water, land or subsurface strata, and natural resources
such as wetlands, flora or fauna, including, without limitation, those relating
to Releases or threatened Releases of Hazardous Materials into the environment,
or otherwise relating to the manufacture, processing, generation, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials.
"Equity Interests" shall mean, with respect to any Person, any and all
shares, interests, participations or other equivalents, including membership
interests (however designated, whether voting or non-voting), of capital of such
Person, including, if such Person is a partnership, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership, whether outstanding on the date
hereof or issued after the Closing Date.
"Equity Issuance" shall mean any of (a) any issuance or sale after the
Closing Date by Borrower of any Equity Interests (including any Equity Interests
issued upon exercise of any Equity Rights) or any Equity Rights, or (b) the
receipt by Borrower after the Closing Date of any capital
15
-9-
contribution (whether or not evidenced by any Equity Interest issued by the
recipient of such contribution), excluding in each case any Excluded Equity
Issuance. Solely for purposes of Section 2.10, the issuance of any debt security
convertible into, or exercisable for, Equity Interests shall be deemed to be a
Debt Issuance and not an Equity Issuance.
"Equity Rights" shall mean, with respect to any Person, any outstanding
subscriptions, options, warrants, Term Loan Commitments, preemptive rights or
agreements of any kind (including any stockholders' or voting trust agreements)
for the issuance, sale, registration or voting of, or outstanding securities
convertible into, any additional shares of Equity Interests of any class, or
partnership or other ownership interests of any type in, such Person.
"ERISA" shall mean the United States Employee Retirement Income Security
Act of 1974, as amended.
"ERISA Entity" shall mean any member of an ERISA Group.
"ERISA Event" shall mean (a) any "reportable event," as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Pension Plan (other than an event for which the 30-day notice period is waived);
(b) the existence with respect to any Pension Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived, the failure to make by its due date a required
installment under Section 412(m) of the Code with respect to any Pension Plan or
the failure to make any required contribution to a Multiemployer Plan; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Pension Plan; (d) the incurrence by any ERISA Entity of any liability under
Title IV of ERISA with respect to the termination of any Pension Plan; (e) the
receipt by any ERISA Entity from the PBGC or a plan administrator of any notice
relating to an intention to terminate any Pension Plan or to appoint a trustee
to administer any Pension Plan, or the occurrence of any event or condition
which could reasonably be expected to constitute grounds under ERISA for the
termination of or the appointment of a trustee to administer, any Pension Plan;
(f) the incurrence by any ERISA Entity of any liability with respect to the
withdrawal or partial withdrawal from any Pension Plan or Multiemployer Plan;
(g) the receipt by an ERISA Entity of any notice, or the receipt by any
Multiemployer Plan from any ERISA Entity of any notice, concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; (h) the making of any amendment to any Pension Plan which
could result in the imposition of a lien or the posting of a bond or other
security; or (i) the occurrence of a nonexempt prohibited transaction (within
the meaning of Section 4975 of the Code or Section 406 of ERISA) which could
result in liability to any Company.
"ERISA Group" shall mean Borrower and its Subsidiaries and all members of
a controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with such Company, are
treated as a single employer under Section 414 of the Code.
16
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"Event of Default" see Section 10.
"Exchange Act" shall mean the United States Securities Exchange Act of
1934, as amended, and all rules and regulations of the Commission promulgated
thereunder.
"Excluded Dispositions" shall mean (i) Dispositions for fair market value
resulting in no more than $100,000 in aggregate proceeds per Disposition (or
series of related Dispositions) and no more than $250,000 in aggregate proceeds
in any fiscal year; (ii) an exchange of equipment or inventory for other
equipment or inventory, provided that the Company effecting such exchange
receives at least substantially equivalent value in such exchange for the
Property disposed of; (iii) any transaction permitted by Section 9.06 (other
than clauses (g) and (k) thereof), any Lien permitted by Section 9.07 and any
Investment permitted by Section 9.09; (iv) any issuance of Equity Interests by
any Subsidiary to directors or nominees if resulting in de minimis proceeds; and
(v) the sale of inventory in the ordinary course of business.
"Excluded Equity Issuance" shall mean (i) any issuance of common Equity
Interests of Borrower to the seller or sellers in consideration for a Permitted
Acquisition, (ii) any issuance or sale by Borrower of Equity Interests of
Borrower to employees, directors, officers or consultants pursuant to a benefit
or compensation plan, and (iii) any issuance of Equity Interests by any
Subsidiary to directors or nominees if resulting in de minimis proceeds.
"Excluded Taxes" see Section 5.06(a).
"Existing Affiliate Agreements" see Section 9.15.
"Extension Date" see Section 3.01(b).
"Extension Fee" see Section 3.01(b).
"Extension Notice" means a notice substantially in the form of Exhibit K.
"fair market value" shall mean, with respect to any Property, a price
(after taking into account any liabilities relating to such Property), as
determined by Borrower in good faith, that is within a reasonable range of
prices which could be negotiated in an arm's-length free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of which is
under any compulsion to complete the transaction.
"Federal Funds Rate" shall mean, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 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, however, that (a) if the day for which such rate is to be
determined 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 (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the
17
-11-
average rate quoted to Administrative Agent on such Business Day on such
transactions by three federal funds brokers of recognized standing, as
determined by Administrative Agent.
"Fee Letter" shall mean the Interim Loan Fee Letter dated as of September
28, 1999 between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation and Borrower.
"Final Maturity Date" shall mean September 28, 2000, subject to extension
as provided in Section 3.01(b) (and if so extended pursuant to Section 3.01(b),
references herein to Final Maturity Date from and after the date of such
extension refer to such new Final Maturity Date).
"Financial Maintenance Covenants" shall mean the covenants set forth in
Sections 9.11(a), (b) and (c).
"Foreign Lender Certificate" see Section 5.06(b).
"Foreign Plan" shall mean any employee benefit plan, program policy,
arrangement, or agreement maintained or contributed to by, or entered into with,
any Company with respect to employees employed outside the United States.
"Funding Date" shall mean the date of the making of any extension of
credit hereunder (including the Closing Date).
"GAAP" shall mean generally accepted accounting principles set forth as
of the relevant date in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority within the
U.S. accounting profession), which are applicable to the circumstances as of the
date of determination.
"Governmental Authority" shall mean any government or political
subdivision of the United States or any other country or any agency, authority,
board, bureau, central bank, commission, department or instrumentality thereof
or therein, including, without limitation, any court, tribunal, grand jury or
arbitrator, in each case whether foreign or domestic, or any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to such government or political subdivision.
"Guarantee" shall mean the guarantee of each Guarantor pursuant to
Section 6.
"Guaranteed Obligations" see Section 6.01.
"Guarantors" shall mean each Subsidiary listed on Schedule 1.01(a) and
each Subsidiary that, after the Closing Date, executes and delivers a Joinder
Agreement and such other documents and instruments (including customary legal
opinions) as Lead Arranger and Administrative Agent may require to establish and
confirm the guarantee of the Obligations by such Subsidiary on terms
substantially identical to that of the Guarantors on the Closing Date.
18
-12-
"Guaranty Obligation" see the definition of Contingent Obligation.
"Hazardous Material" shall mean any pollutant, contaminant, toxic,
hazardous or extremely hazardous substance, constituent or waste, or any other
constituent, waste, material, compound or substance subject to regulation under
any Environmental Law including, without limitation, petroleum or any petroleum
product, including crude oil or any fraction thereof, polychlorinated biphenyls,
urea-formaldehyde insulation and asbestos.
"in the ordinary course of business" shall mean in the ordinary course of
business of the Companies.
"incur" shall mean, with respect to any Indebtedness or other obligation
of any Person, to create, issue, incur (including by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "incurrence", "incurred" and "incurring" shall have meanings
correlative to the foregoing).
"Indebtedness" shall mean, for any Person, without duplication, (a) all
indebtedness for borrowed money of such Person; (b) all obligations issued,
undertaken or assumed by such Person as the deferred purchase price of Property
or services (other than trade payables and accrued expenses); (c) all unpaid
reimbursement obligations in respect of letters of credit and all non-contingent
reimbursement or payment obligations of such Person with respect to Surety
Instruments that are not reimbursed within three Business Days (such as, for
example, unpaid reimbursement obligations in respect of a drawing under a letter
of credit); (d) all obligations of such Person evidenced by notes, bonds (other
than bid or performance bonds), debentures or similar instruments, including
obligations so evidenced incurred in connection with the acquisition of Property
or businesses; (e) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement, or incurred as financing,
in either case with respect to Property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such Property (other than
operating leases)); (f) all Capital Lease Obligations of such Person; (g) all
indebtedness of other Persons referred to in clauses (a) through (f) above
secured by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in Property
(including accounts and contracts rights) owned by such Person, whether or not
such Person has assumed or become liable for the payment of such indebtedness
(provided that the amount of indebtedness shall be deemed to be limited to the
fair market value of such Property if such Person has not assumed or become
liable for the payment of such indebtedness); and (h) all Guaranty Obligations
of such Person in respect of indebtedness or obligations of any other Person of
the kinds referred to in clauses (a) through (g) above. Indebtedness shall not
include accounts extended by suppliers in the ordinary course of business in
connection with the purchase of goods and services. The Indebtedness of any
Person shall include any Indebtedness of any partnership in which such Person is
the general partner.
"Indemnitee" see Section 12.03(b).
19
-13-
"Insolvency Proceeding" shall mean, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any court or by or
before any other Governmental Authority relating to bankruptcy, insolvency,
reorganization, liquidation, receivership, dissolution, sequestration,
conservatorship, winding-up or relief of debtors (or the convening of a meeting
or the passing of a resolution for or with a view to any of the foregoing), or
(b) any assignment for the benefit of creditors, composition, marshalling of
assets for creditors, or other similar arrangement in respect of such Person's
creditors generally or any substantial portion of its creditors.
"Intellectual Property" see Section 8.23.
"Intercompany Note" shall mean a promissory note substantially in the
form of Exhibit B.
"Interest Period" shall mean, with respect to any LIBOR Loan, each period
commencing on the date such LIBOR Loan is made or Converted from an ABR Loan or
the last day of the next preceding Interest Period for such LIBOR Loan and
(subject to the requirements of Sections 2.01(a), 2.01(b), 2.01(c), 2.01(d),
2.01(e) and 2.09) ending on the numerically corresponding day in the first,
second, third, sixth or (if available from all Lenders) twelfth calendar month
thereafter, as Borrower may select as provided in Section 4.05, except that each
Interest Period that commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month. Notwithstanding the foregoing: (i) each
Interest Period that would otherwise end on a day that is not a Business Day
shall end on the next succeeding Business Day (or, if such next succeeding
Business Day falls in the next succeeding calendar month, on the next preceding
Business Day); and (ii) notwithstanding clause (i), no Interest Period shall
have a duration of less than one month and, if the Interest Period for any LIBOR
Loan would otherwise be a shorter period, such Term Loan shall not be available
hereunder as a LIBOR Loan for such period.
"Interest Rate Protection Agreement" shall mean, for any Person, an
interest rate swap, cap or collar agreement or similar arrangement between such
Person and one or more financial institutions providing for the transfer or
mitigation of interest risks either generally or under specific contingencies.
"Investment" shall mean, for any Person: (a) the acquisition (whether for
cash, Property, services or securities or otherwise) of Equity Interests, bonds,
notes, debentures or other securities of any other Person; (b) the making of any
deposit with, or advance, loan or other extension of credit to, any other Person
(including the purchase of Property from another Person subject to an
understanding or agreement, contingent or otherwise, to resell such Property to
such Person); (c) any capital contribution to (by means of any transfer of cash
or other Property to others or any payment for Property or services for the
account or use of others) any other Person; and (d) the entering into, or direct
or indirect incurrence, of any Guaranty Obligation with respect to Indebtedness
or other liability of any other Person.
20
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"Joinder Agreement" shall mean a joinder agreement substantially in the
form of Exhibit L.
"Joint Venture" shall mean a corporation, partnership, limited liability
company, joint venture or other similar legal arrangement (whether created by
contract or conducted through a separate legal entity) now or hereafter formed
by any Company with another Person or Persons in order to conduct a common
venture or enterprise with such Person or Persons and that is not a Subsidiary
(whether owned, directly or indirectly, 50% or less by any Company).
"Laws" shall mean, collectively, all common law and all international,
foreign, federal, state and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes and administrative or judicial precedents,
including without limitation the interpretation thereof by any Governmental
Authority charged with the enforcement thereof.
"Lead Arranger" see the introduction hereto.
"Lease" shall mean any lease, sublease, franchise agreement, license,
occupancy or concession agreement.
"Lender" and "Lenders" see the introduction hereto.
"LIBOR Rate" shall mean, for any LIBOR Loan for any Interest Period
therefor, a rate per annum (rounded upwards, if necessary, to the nearest 1/100
of 1%) determined by Administrative Agent to be equal to the LIBOR Base Rate for
such LIBOR Loan for such Interest Period divided by 1 minus the Reserve
Requirement (if any) for such LIBOR Loan for such Interest Period.
"LIBOR Base Rate" shall mean, with respect to any LIBOR Loan for any
Interest Period therefor, the rate per annum determined by Administrative Agent
to be the arithmetic mean (rounded to the nearest 1/100th of 1%) of the offered
rates for deposits in Dollars with a term comparable to such Interest Period
that appears on the Telerate British Bankers Assoc. Interest Settlement Rates
Page (as defined below) at approximately 11:00 a.m., London, England time, on
the second full Business Day preceding the first day of such Interest Period (as
adjusted for maximum statutory reserves (if applicable)); provided, however,
that (i) if no comparable term for an Interest Period is available, the LIBOR
Base Rate shall be determined using the weighted average of the offered rates
for the two terms most nearly corresponding to such Interest Period and (ii) if
there shall at any time no longer exist a Telerate British Bankers Assoc.
Interest Settlement Rates Page, "LIBOR Base Rate" shall mean, with respect to
each day during each Interest Period pertaining to LIBOR Loans comprising part
of the same borrowing, the rate per annum equal to the rate at which
Administrative Agent is offered deposits in Dollars at approximately 11:00 a.m.,
London, England time, two Business Days prior to the first day of such Interest
Period in the London interbank market for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to its portion of the amount of such LIBOR Loan to be outstanding
during such Interest Period. "Telerate British Bankers Assoc. Interest
Settlement Rates Page" shall mean the display designated as Page 3750 on the
Telerate System Incorporated Service (or such other page as may replace
21
-15-
such page on such service for the purpose of displaying the rates at which
Dollar deposits are offered by leading banks in the London interbank deposit
markets).
"LIBOR Loans" shall mean Term Loans that bear interest at rates based on
rates referred to in the definition of "LIBOR Rate" in this Section 1.01.
"Lien" shall mean, with respect to any Property, any mortgage, lien,
pledge, claim, charge, security interest or encumbrance of any kind, any other
type of preferential arrangement in respect of such Property having the effect
of a security interest or any filing consented to by any Company of any
financing statement under the UCC or any other similar notice of Lien under any
similar notice or recording statute of any Governmental Authority consented to
by any Company, including any easement, right-of-way or other encumbrance on
title to Real Property, and any agreement to give any of the foregoing. For
purposes of the Credit Documents, a Person shall be deemed to own subject to a
Lien any Property that it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement (other than an operating lease) relating to such
Property.
"Losses" of any Person shall mean the losses, liabilities, claims
(including those based upon negligence, strict or absolute liability and
liability in tort), damages, reasonable expenses, obligations, penalties,
actions, judgments, encumbrances, liens, penalties, fines, suits, reasonable and
documented costs or disbursements of any kind or nature whatsoever (including
reasonable fees and expenses of counsel in connection with any Proceeding
commenced or threatened in writing, whether or not such Person shall be
designated a party thereto) at any time (including following the payment of the
Obligations) incurred by, imposed on or asserted against such Person.
"Majority Lenders" shall mean (i) at any time prior to the Closing Date,
Lenders holding at least a majority of the aggregate amount of the Term Loan
Commitments, and (ii) at any time after the Closing Date, Lenders holding at
least a majority of the sum of (without duplication) (a) the aggregate principal
amount of outstanding Term Loans, plus (b) the aggregate Unutilized Commitments
then in effect.
"Margin Stock" shall mean margin stock within the meaning of Regulations
T, U and X.
"Material Adverse Change" shall have the meaning set forth in Section
7.01 (ii).
"Material Adverse Effect" shall mean any of (a) a material adverse
effect, or any condition or event that has resulted or could reasonably be
expected to result in a material adverse effect, on the business, assets,
operations, properties, liabilities, prospects or condition (financial or
otherwise) of Borrower, together with the Subsidiaries taken as a whole, (b) a
material adverse effect on the ability of the Obligors to perform any of their
material obligations under any Credit Document or (c) a material adverse effect
on the legality, binding effect or enforceability of any Credit Document or any
of the material rights and remedies of any Creditor thereunder.
22
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"Minority Interest" shall mean an Investment in any Person that is not a
Subsidiary (including any Joint Venture).
"Mobeo" shall mean Mobeo, Inc., a Delaware corporation.
"Mobeo Acquisition" shall mean the acquisition of Mobeo pursuant to the
Acquisition Agreement.
"Monthly Dates" shall mean the last Business Day of each month,
commencing with the last Business Day of the first full month after the Closing
Date.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" shall mean a multiemployer plan within the meaning
of Section 4001(a)(3) of ERISA (i) to which any ERISA Entity is then making or
accruing an obligation to make contributions, (ii) to which any ERISA Entity has
within the preceding five plan years made contributions, including any Person
which ceased to be an ERISA Entity during such five year period, or (iii) with
respect to which any Company could incur liability.
"NAIC" shall mean the National Association of Insurance Commissioners or
any successor thereto.
"Net Available Proceeds" shall mean:
(i) in the case of any Disposition Event, the amount of Net Cash
Payments received by any Company in connection with such Disposition Event;
(ii) in the case of any Casualty Event, the aggregate amount of cash
proceeds of insurance, condemnation awards and other compensation received
by any Company in respect of such Casualty Event net of (A) fees and
expenses incurred by such Company in connection with recovery thereof, (B)
repayments of Indebtedness (other than Term Loans) to the extent secured by
a Lien on such Property permitted by the Credit Documents, and (C) any Taxes
paid or payable by any Company in respect of the amount so recovered (after
application of all credits and other offsets); and
(iii) in the case of any Equity Issuance or any Debt Issuance, the
aggregate amount of all cash received by any Obligor in respect thereof net
of all investment banking fees, discounts and commissions, legal fees,
consulting fees, accountants' fees, underwriting discounts and commissions
and other fees and expenses, actually incurred in connection therewith.
"Net Cash Payments" shall mean, with respect to any Disposition Event,
the aggregate amount of all cash payments (including any cash payments received
by way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but only as and
when received) received by any Company directly or indirectly in connection with
such Disposition Event; provided, however, that Net Cash Payments shall be net
(without
23
-17-
duplication) of (i) the amount of all fees and expenses paid by any Company in
connection with such Disposition Event (the "Relevant Disposition"); (ii) any
Taxes paid or estimated to be payable by any Company as a result of the Relevant
Disposition (after application of all credits and other offsets); (iii) any
repayments by any Company of Indebtedness other than the Obligations to the
extent that (a) such Indebtedness is secured by a Lien on the Property that is
the subject of the Relevant Disposition that is permitted by the Credit
Documents and (b) the transferee of (or holder of a Lien on) such Property
requires that such Indebtedness be repaid as a condition to the purchase or sale
of such Property; (iv) amounts required to be paid to any Person (other than any
Company) owning a beneficial interest in the Property subject to such Relevant
Disposition; and (v) appropriate amounts to be provided by any Company, as a
reserve, in accordance with GAAP, against any liabilities associated with such
Relevant Disposition and retained by any Company after such Relevant
Disposition, including, without limitation, pension and other post-employment
benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Relevant
Disposition, all as reflected in an Officers' Certificate delivered to
Administrative Agent.
"Non-Qualified Subsidiary" shall mean any Subsidiary other than a
Qualified Subsidiary.
"Non-U.S. Lender" see Section 5.06(b).
"Notice of Assignment" shall mean a notice of assignment pursuant to
Section 12.06 substantially in the form of Exhibit E.
"Notice of Borrowing" shall mean a notice of borrowing substantially in
the form of Exhibit F.
"Notice of Continuation/Conversion" see Section 2.09.
"Obligations" shall mean all amounts, direct or indirect, contingent or
absolute, of every type or description, and at any time existing, owing to any
Creditor or any of its Related Parties or their respective successors,
transferees or assignees pursuant to the terms of any Credit Document or any
Swap Contract or secured by the Security Agreement, whether or not the right of
such Person to payment in respect of such obligations and liabilities is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured and whether or not
such claim is discharged, stayed or otherwise affected by any bankruptcy case or
insolvency or liquidation proceeding.
"Obligors" shall mean Borrower and the Guarantors.
"Officers' Certificate" shall mean, as applied to any corporation, a
certificate executed on behalf of such corporation by the Chairman of its board
of directors (if an officer) or its Chief Executive Officer or its President or
one of its Vice Presidents (or an equivalent officer) and by its Chief Financial
Officer, Vice President-Finance or its Treasurer (or an equivalent officer) or
any Assistant Treasurer in their official (and not individual) capacities;
provided, however, that every Officers' Certificate with respect to the
compliance with a condition precedent to the making of any
24
-18-
Term Loan or the taking of any other action hereunder shall include (i) a
statement that the officers making or giving such Officers' Certificate have
read such condition and any definitions or other provisions contained in this
Agreement relating thereto, and (ii) a statement as to whether, in the opinion
of the signers, such condition has been complied with.
"OpenSky Warrant" shall mean the warrants to purchase 3,000,000 shares of
Series A Preferred Stock of AirWeb Corporation (d/b/a/ OpenSky) issued to Aether
OpenSky Investments LLC.
"Operating Cash Flow" shall mean, for any period, the sum (without
duplication) of the amounts for such period of Adjusted Net Income, plus, in
each case to the extent deducted in calculating such Adjusted Net Income, (1)
income tax expense and withholding tax expense incurred in connection with cross
border transactions, (2) consolidated interest expense, (3) depreciation and
amortization expense and (4) other non-cash items of expense, other than to the
extent requiring an accrual or reserve for future cash expenses.
"Organic Document" shall mean, relative to any Person, its certificate of
incorporation, its by-laws, its partnership agreement, its memorandum and
articles of association, share designations or similar organization documents
and all shareholder agreements, voting trusts and similar arrangements
applicable to any of its authorized Equity Interests.
"Original Lenders" shall mean the Lenders named on the signature pages
hereof who were Lenders at the Closing Date.
"Other Taxes" see Section 5.06(c).
"Participant" see Section 12.06(c).
"Payment Date" shall mean the Final Maturity Date and each date on which
interest is due and payable on any Term Loan.
"Payor" see Section 4.06.
"PBGC" shall mean the United States Pension Benefit Guaranty Corporation
or any successor thereto.
"Pension Plan" shall mean an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code or Section 302 of ERISA
and is maintained or contributed to by any ERISA Entity or with respect to which
any Company could incur liability.
"Percentage" shall mean, with respect to any Lender, the ratio of (a) the
amount of the Unutilized Commitment of such Lender to (b) the aggregate amount
of the Unutilized Commitments of all of the Lenders.
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"Permits" see Section 8.16.
"Permitted Acquisition" shall mean any Acquisition effected in compliance
with Section 9.06(h).
"Permitted Investments" shall mean: (a) operating deposit accounts and
certificates of deposit with banks in the ordinary course of business; (b)
without duplication, Investments that constitute Indebtedness or Contingent
Obligations permitted under Section 9.08; (c) extensions of credit in the nature
of accounts receivable or notes receivable arising from the sale or lease of
goods or services in the ordinary course of business and prepayments and other
credits to suppliers made in the ordinary course of business; (d) pledges or
deposits in connection with workers' compensation, unemployment insurance and
other social security or similar legislation; (e) pledges or deposits in
connection with (i) the non-delinquent performance of bids, trade contracts
(other than for borrowed money), leases or statutory obligations, (ii)
contingent obligations on surety or appeal bonds, and (iii) other non-delinquent
obligations of a like nature, in each case incurred in the ordinary course of
business; (f) investments (including debt obligations) received in connection
with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business; (g) Capital Expenditures
(other than Acquisitions) and Liens not prohibited by this Agreement; and (h)
Cash and Cash Equivalents.
"Permitted Customary Liens" shall mean (a) Liens imposed by any
Governmental Authority for taxes, assessments or charges (other than any de
minimis taxes, assessments or charges) not yet due or which are being contested
in good faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Companies, in accordance with GAAP;
(b) Liens imposed by law which were incurred in the ordinary course of business,
such as carriers', warehousemen's, landlords' and mechanics' Liens and other
similar Liens arising in the ordinary course of business, in each case for sums
the payment of which is not required by Section 9.03; (c) pledges or deposits
under workers' compensation, unemployment insurance and other social security
legislation (including the Federal Employer's Liability Act) or the deposits
securing the liability to insurance carriers, in each case arising in the
ordinary course of business; (d) pledges or deposits to secure the performance
of bids, trade contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of
a like nature incurred in the ordinary course of business under insurance or
self insurance agreements; (e) easements, rights-of-way, restrictions or minor
defects or irregularities in title incurred in the ordinary course of business
and encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Real Property or minor imperfections in title thereto
which, in the aggregate, are not material in amount, and which do not in any
case materially detract from the value of the Real Property subject thereto or
interfere with the ordinary conduct of the business of any Company; (f) Liens
consisting of judgment or judicial attachment Liens (including pre-judgment
attachment) in existence less than 60 days after the entry thereof or the
enforcement of which is effectively stayed or payment of which is covered in
full (subject to a customary deductible) by insurance or which do not otherwise
result in an Event of Default under Section 10(h) or (n); (g) any obligations or
duties affecting any of the Property of any Company to any municipality or
public authority with respect to any franchise, grant, license
26
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or permit which do not materially impair the use of such Property for the
purposes for which it is held; (h) leases or subleases granted to third Persons
not interfering in any material respect with the business of any Company; (i)
Liens arising from UCC financing statements regarding leases permitted by this
Agreement; (j) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of custom duties in connection with the
importation of goods so long as such Liens attach only to the imported goods;
(k) Liens that are contractual rights of set-off; (l) Liens arising out of
consignment or similar arrangements for the sale of goods entered into by any
Company in the ordinary course of business; and (m) Liens on Intellectual
Property to the extent such Liens arise from the granting of licenses to use
such Intellectual Property in the ordinary course of business of any Company.
"Permitted Holder" shall mean each of the underwriters in the Borrower's
initial public offering of common equity of Borrower and each existing member of
the Borrower.
"Permitted Liens" see Section 9.07.
"Permitted Obligations" shall mean: (a) Contingent Obligations in respect
of operating leases; (b) Indebtedness and Contingent Obligations arising from
honoring a check, draft or similar instrument against insufficient funds;
provided, however, that such Indebtedness is extinguished within two Business
Days of its incurrence; (c) Swap Contracts entered into in the ordinary course
of business and designed to protect any Company against fluctuations in interest
rates, currency exchange rates, or similar risks; (d) Contingent Obligations in
connection with Dispositions permitted under Section 9.06 arising in connection
with indemnification and other agreements in respect of any contract relating to
such Disposition, not to exceed the consideration received by the Companies
(which consideration shall be deemed to exclude any obligation of any third
Person incurred in connection with the acquisition of the Property which is the
subject of such Disposition) in connection with such sale; (e) Indebtedness or
Contingent Obligations of any Company to (including obligations in respect of
letters of credit for the benefit of) any Person providing worker's
compensation, health, disability or other employee benefits or property,
casualty or liability insurance to any Company; and (f) Indebtedness or
Contingent Obligations of any Company in respect of performance bonds, bid
bonds, appeal bonds, surety bonds and similar obligations and trade letters of
credit, in each case provided in the ordinary course of business, including
those incurred to secure health, safety and environmental obligations in the
ordinary course of business, and any extension, renewal or refinancing thereof
to the extent the amount of refinancing Indebtedness or Contingent Obligations
is not greater than the amount of Indebtedness or Contingent Obligations being
refinanced.
"Permitted Refinancing" shall mean, with respect to any Indebtedness or
Contingent Obligation, any refinancing thereof, provided, however, that (w) no
Default shall have occurred and be continuing or would arise therefrom, (x) any
such refinancing Indebtedness shall (I) not be on financial and other terms that
are materially more onerous (as determined by Borrower and Agents) in the
aggregate to any Company or Creditor than the Indebtedness or Contingent
Obligation being refinanced and shall not have defaults, rights or remedies more
burdensome to any Company or Creditor than the Indebtedness being refinanced,
(II) not have a stated maturity or weighted average life that is shorter than
that of the Indebtedness or Contingent Obligation being refinanced (provided
that the
27
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stated maturity or weighted average life may be shorter if the stated maturity
of any principal payment (including any amortization payments) is not earlier
than the earliest of (i) the stated maturity in effect prior to such refinancing
or (ii) 90 days after the Final Maturity Date), (III) if the Indebtedness or
Contingent Obligation being refinanced is subordinated by its terms or by the
terms of any agreement or instrument relating to such Indebtedness or Contingent
Obligation, be at least as subordinate to the Obligations as the Indebtedness or
Contingent Obligation being refinanced (and unsecured if the refinanced
Indebtedness is unsecured), and (IV) be in a principal amount that does not
exceed the principal amount so refinanced, plus accrued interest, plus the
lesser of (1) the stated amount of any premium or other payment required to be
paid in connection with such refinancing pursuant to the terms of the
Indebtedness or Contingent Obligation being refinanced and (2) the amount of
premium or other payment actually paid at such time to refinance the
Indebtedness, plus, in either case, the amount of fees and reasonable expenses
of any Obligor or any Subsidiary incurred in connection with such refinancing,
and (y) the sole obligor on such refinancing Indebtedness or Contingent
Obligation shall be Borrower or the original obligor on such Indebtedness or
Contingent Obligation being refinanced; provided, however, that (I) any
guarantor of the Indebtedness or Contingent Obligation being refinanced shall be
permitted to guarantee the refinancing Indebtedness and (II) any Obligor shall
be permitted to guarantee any such refinancing of any other Obligor.
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof).
"Principal Office" shall mean the principal office of Administrative
Agent, located on the Closing Date at World Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other office as may be designated by
Administrative Agent.
"Prior Liens" shall mean Liens which, pursuant to the provisions of the
Security Agreement, are or may be superior to the Lien of the Security
Agreement.
"Proceeding" shall mean any claim, counterclaim, action, judgment, suit,
hearing, governmental investigation, arbitration or proceeding, including by or
before any Governmental Authority and whether judicial or administrative.
"Profit Payment Agreement" shall mean any agreement to make any payment
the amount of which is, or the terms of payment of which are, in any respect
subject to or contingent upon the revenues, income, cash flow or profits (or the
like) of any Person or business.
"Property" shall mean any right, title or interest in or to property or
assets of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible and including Equity Interests or other ownership
interests of any Person.
"Qualified Capital Stock" shall mean with respect to any Person any
Equity Interests of such Person that is not Disqualified Capital Stock.
"Qualified Company" shall mean Borrower and each Qualified Subsidiary.
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"Qualified Subsidiary" shall mean any Wholly Owned Subsidiary of Borrower
that is a Guarantor and in respect of which 100% of the Equity Interests thereof
are pledged pursuant to the Security Agreement.
"Real Property" shall mean all right, title and interest of any Company
(including, without limitation, any leasehold estate) in and to a parcel of real
property owned or operated by any Company, whether by lease, license or other
use agreement, together with, in each case, all improvements and appurtenant
fixtures, equipment, personal property, easements and other property and rights
incidental to the ownership, lease or operation thereof or thereon.
"redeem" shall mean redeem, repurchase, repay, defease or otherwise
acquire or retire for value; and "redemption" and "redeemed" have correlative
meanings.
"refinance" shall mean refinance, renew, extend, replace, defease or
refund, in whole or in part, including successively; and "refinancing" and
"refinanced" have correlative meanings.
"Register" see Section 2.08(c).
"Regulation D" shall mean Regulation D (12 C.F.R. Part 204) of the Board
of Governors of the United States Federal Reserve System.
"Regulations T, U and X" shall mean, respectively, Regulation T (12
C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) and Regulation X (12 C.F.R.
Part 224) of the Board of Governors of the United States Federal Reserve System
(or any successor), as the same may be modified and supplemented and in effect
from time to time.
"Regulatory Change" shall mean, with respect to any Lender, any change
after the Closing Date in United States Federal, state or foreign law or
regulations (including Regulation D) or the adoption or making after such date
of any interpretation, directive or request applying to a class of banks or
other financial institutions including such Lender of or under any Federal,
state or foreign law or regulations (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful) by any court or
governmental or monetary authority or any other regulatory agency with proper
authority, including non-governmental agencies or bodies, charged with the
interpretation or administration thereof or by the NAIC.
"Related Parties" see Section 11.01.
"Release" shall mean any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the environment.
"Replaced Lender" see Section 2.11.
"Replacement Lender" see Section 2.11.
"Required Balance" see Section 9.18.
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"Required Payment" see Section 4.06.
"Requirement of Law" shall mean as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any Law or determination of an arbitrator or any Governmental
Authority, in each case applicable to or binding upon such Person or any of its
Property or to which such Person or any of its Property is subject.
"Reserve Requirement" shall mean, for any Interest Period for any LIBOR
Loan, the average maximum rate at which reserves (including any marginal,
supplemental or emergency reserves) are required to be maintained during such
Interest Period under Regulation D by member banks of the United States Federal
Reserve System in New York City with deposits exceeding one billion Dollars
against "Eurocurrency liabilities" (as such term is used in Regulation D).
"Responsible Officer" shall mean each of the chief executive officer of
Borrower and the president of Borrower (if not the chief executive officer) and,
with respect to financial matters, the chief financial officer of Borrower.
"Revenue" means, for any period, the consolidated total revenue for such
period, of the Consolidated Companies calculated in accordance with GAAP.
"Sale and Leaseback Transaction" shall mean any arrangement, direct or
indirect, with any Person whereby it shall sell or transfer any Property used or
useful in its business, whether now owned or hereafter acquired, and thereafter
rent or lease such Property or other Property which it intends to use for
substantially the same purpose or purposes as the Property being sold or
transferred.
"S&P" shall mean Standard & Poor's Corporation.
"Securities Act" shall mean the United States Securities Act of 1933, as
amended, and all rules and regulations of the Commission promulgated thereunder.
"Solvent" and "Solvency" shall mean, for any Person on a particular date,
that on such date (a) the fair value of the Property of such Person is greater
than the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (b) the present fair salable value of the assets of
such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will,
incur debts and liabilities beyond such Person's ability to pay as such debts
and liabilities mature, (d) such Person is not engaged in a business or a
transaction, and is not about to engage in a business or a transaction, for
which such Person's Property would constitute an unreasonably small capital and
(e) such Person is able to pay its debts as they become due and payable.
"Subordinated Debt" shall mean Indebtedness of any Company that is
subordinated to any other Indebtedness of such Company.
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"Subsidiary" shall mean, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether at the time securities or other ownership interests of any other class
or classes of such corporation, partnership or other entity shall have or might
have voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person. Unless the context clearly requires otherwise, all references to
any Subsidiary shall mean a Subsidiary of Borrower.
"Supermajority Lenders" shall mean (i) at any time prior to the Closing
Date, Lenders holding at least two-thirds of the aggregate amount of the Term
Loan Commitments, and (ii) at any time after the Closing Date, Lenders holdings
at least two-thirds of the sum of (without duplication) (a) the aggregate amount
of the outstanding Term Loans plus (b) the aggregate Unutilized Commitments then
in effect.
"Surety Instruments" shall mean all letters of credit (including standby
and commercial), bankers' acceptances, bank guarantees, surety bonds and similar
instruments.
"Swap Contract" shall mean any agreement entered into in the ordinary
course of business or in accordance with Borrower's business plan (as a bona
fide hedge and not for speculative purposes) (including any master agreement and
any agreement, whether or not in writing, relating to any single transaction)
that is an interest rate swap agreement, basis swap, forward rate agreement,
commodity swap, commodity option, equity or equity index swap or option, bond
option, interest rate option, foreign exchange agreement, rate cap, collar or
floor agreement, currency swap agreement, cross-currency rate swap agreement,
swaption, currency option or any other similar agreement (including any option
to enter into any of the foregoing) and is designed to protect the Obligors
against fluctuations in interest rates, currency exchange rates, or similar
risks.
"Syndication Agent" see the introduction hereto.
"Syndication Letter" shall mean the Syndication Letter dated as of
September 28, 1999 between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation and Borrower.
"Tax Returns" see Section 8.08.
"Taxes" shall mean any and all taxes, imposts, duties, charges, fees,
levies or other charges or assessments of whatever nature, including income,
gross receipts, excise, real or personal property, sales, withholding, social
security, retirement, unemployment, occupation, use, service, license, net
worth, payroll, franchise, and transfer and recording, imposed by the Internal
Revenue Service or any taxing authority (whether domestic or foreign, including
any federal, state, U.S. possession, county, local or foreign government or any
subdivision or taxing agency thereof), whether computed on a separate,
consolidated, unitary, combined or any other basis, including interest, fines,
31
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penalties or additions to tax attributable to or imposed on or with respect to
any such taxes, charges, fees, levies or other assessments.
"Term Facility" shall mean the credit facility comprising the Term Loan
Commitments and the Term Loans.
"Term Loan Commitment" shall mean, for each Lender, the obligation of
such Lender to make a Term Loan in an amount up to but not exceeding the amount
set opposite the name of such Lender on Annex A under the caption "Term Loan
Commitment" (as the same may be changed pursuant to Section 12.06(b)). The
initial aggregate principal amount of the sum of the Term Loan Commitments of
all Lenders is $17.0 million.
"Term Loans" see Section 2.01.
"Term Note" shall mean a promissory note substantially in the form of
Exhibit A.
"Test Date" shall mean, for any Financial Maintenance Covenant, the last
day of each fiscal quarter of Borrower included within any period set forth in
the table for such Financial Maintenance Covenant.
"Type" see Section 1.03.
"UCC" shall mean the Uniform Commercial Code as in effect in the
applicable state or other jurisdiction.
"Unutilized Commitment" shall mean, for any Lender, at any time, the
excess of such Lender's Term Loan Commitment at such time over the aggregate
outstanding principal amount of Term Loans made by such Lender.
"Wholly Owned Subsidiary" shall mean, with respect to any Person, any
corporation, partnership or other entity of which all of the Equity Interests
(other than, in the case of a corporation, directors' qualifying shares or
nominee shares required under applicable law) are directly or indirectly owned
or controlled by such Person or one or more Wholly Owned Subsidiaries of such
Person or by such Person and one or more Wholly Owned Subsidiaries of such
Person. Unless the context clearly requires otherwise, all references to any
Wholly Owned Subsidiary shall mean a Wholly Owned Subsidiary of Borrower.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part 1 of Subtitle E of Title IV of ERISA.
1.02. Accounting Terms and Determinations. Except as otherwise provided
in this Agreement, all computations and determinations as to accounting or
financial matters (including financial covenants) shall be made in accordance
with GAAP consistently applied for all applicable periods, and all accounting or
financial terms shall have the meanings ascribed to such terms by
32
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GAAP; provided, however, that, if Borrower notifies Lead Arranger and
Administrative Agent that Borrower wishes to amend any covenant in Section 9 to
eliminate the effect of any change in GAAP on the operation of such calculation
or covenant (or if Lead Arranger and Administrative Agent notify Borrower that
the Majority Lenders wish to amend any such calculation or covenant for such
purpose), then such calculation or Borrower's compliance with such covenant, as
the case may be, shall be determined on the basis of GAAP in effect immediately
before the relevant change in GAAP became effective, until either such notice is
withdrawn or such calculation or covenant is amended in a manner satisfactory to
Borrower and the Majority Lenders. All financial statements to be delivered
pursuant to this Agreement shall be prepared in accordance with GAAP.
1.03. Types of Term Loans. Term Loans hereunder are distinguished by
"Type". The "Type" of a Term Loan refers to whether such Term Loan is an ABR
Loan or a LIBOR Loan, each of which constitutes a Type.
1.04. Rules of Construction. (a) In each Credit Document, unless the
context clearly requires otherwise (or such other Credit Document clearly
provides otherwise), references to (i) the plural include the singular, the
singular include the plural and the part include the whole; (ii) Persons include
their respective permitted successors and assigns or, in the case of
governmental Persons, Persons succeeding to the relevant functions of such
Persons; (iii) agreements (including this Agreement), promissory notes and other
contractual instruments include subsequent amendments, assignments, and other
modifications thereto, but only to the extent such amendments, assignments or
other modifications thereto are not prohibited by their terms or the terms of
any Credit Document; (iv) statutes and related regulations include any
amendments of the same and any successor statutes and regulations; and (v) time
shall be a reference to New York City time. Where any provision herein refers to
action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken directly
or indirectly by such Person.
(b) In each Credit Document, unless the context clearly requires
otherwise (or such other Credit Document clearly provides otherwise), (i)
"amend" shall mean "amend, restate, amend and restate, supplement or modify";
and "amended", "amending," and "amendment" shall have meanings correlative to
the foregoing; (ii) in the computation of periods of time from a specified date
to a later specified date, "from" shall mean "from and including"; "to" and
"until" shall mean "to but excluding"; and "through" shall mean "to and
including"; (iii) "hereof", "herein" and "hereunder" (and similar terms) in any
Credit Document refer to such Credit Document as a whole and not to any
particular provision of such Credit Document; (iv) "including" (and similar
terms) shall mean "including without limitation" (and similarly for similar
terms); (v) "or" has the inclusive meaning represented by the phrase "and/or";
(vi) "satisfactory to" any Creditor shall mean in form, scope and substance and
on terms and conditions satisfactory to such Creditor; (vii) references to "the
date hereof" shall mean the date first set forth above; and (viii) "asset" and
"Property" shall have the same meaning and effect and refer to all tangible and
intangible assets and property, whether real, personal or mixed and of every
type and description.
(c) In this Agreement unless the context clearly requires otherwise, any
reference to (i) an Annex, Exhibit or Schedule is to an Annex, Exhibit or
Schedule, as the case may be, attached to
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this Agreement and constituting a part hereof, and (ii) a Section or other
subdivision is to a Section or such other subdivision of this Agreement.
Section 2. Term Loan Commitments, Conversions and Continuations, Fees,
Register, Prepayments and Replacement of Lenders
2.01. Term Loans. Each Lender severally agrees, on the terms and
conditions of this Agreement, to make term loans ("Term Loans") to Borrower in
Dollars from time to time from and including the Closing Date until the
Commitment Termination Date in an aggregate principal amount equal to the then
available Unutilized Commitment of such Lender. Term Loans that are repaid or
prepaid may not be reborrowed.
2.02. Borrowings. Borrower shall give Administrative Agent notice of each
borrowing hereunder as provided in Section 4.05. The form of such notice of
borrowing shall be substantially in the form of Exhibit F. Not later than 12:00
noon New York City time on the date specified for each borrowing hereunder, each
Lender shall make available the amount of the Term Loan or Term Loans to be made
by it on such date to Administrative Agent, at an account specified by
Administrative Agent maintained at the Principal Office, in immediately
available funds, for the account of Borrower. Each borrowing of Term Loans shall
be made by each Lender pro rata based on its Percentage. The amounts so received
by Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to Borrower by depositing the same, in immediately
available funds, in an account designated by Borrower.
2.03. Limit on LIBOR Loans. No more than seven separate Interest Periods
in respect of LIBOR Loans may be outstanding at any one time.
2.04. Terminations and Reductions of Term Loan Commitments. (a)(i) The
Term Loan Commitments shall be automatically and permanently terminated on April
15, 2000 if the Closing Date does not occur on or prior to such date.
(ii) The aggregate amount of the Unutilized Commitments shall be
automatically and permanently reduced (A) on each Funding Date by the amount of
the Term Loans made on such date immediately after the making of the Term Loans
on such date and (B) on the Commitment Termination Date to zero.
(b) Borrower shall have the right at any time or from time to time
(without premium or penalty except breakage costs (if any)) (i) to terminate the
Term Loan Commitments in their entirety, and (ii) to reduce the aggregate amount
of the Unutilized Commitments (which shall be pro rata among the Lenders);
provided, however, that (x) Borrower shall give notice of each such termination
or reduction as provided in Section 4.05, and (y) each partial reduction shall
be in an aggregate amount at least equal to $100,000 (or a larger multiple of
$100,000) or, if less, the remaining Unutilized Commitments.
(c) The Term Loan Commitments once terminated or reduced may not be
reinstated.
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2.05. Fees. (a) Borrower shall pay to Administrative Agent for the
account of each Lender a commitment fee on the aggregate amount of such Lender's
Unutilized Commitment for the period from and including the Closing Date to but
not including the Commitment Termination Date, at a rate per annum equal to
0.50%. Any accrued commitment fee under this Section 2.05(a) shall be payable in
arrears on the earlier of the date the Term Loan Commitments are terminated or
expire and the Commitment Termination Date.
(b) Borrower shall pay to Administrative Agent for its own account the
annual administrative fee pursuant to the Administrative Agent's Fee Letter.
(c) Borrower shall pay to Administrative Agent for the account of each
Lender the Extension Fee as and when required by Section 3.01(b). The Extension
Fee, once paid, shall be nonrefundable.
2.06. Lending Offices. The Term Loans of each Type made by each Lender
shall be made and maintained at such Lender's Applicable Lending Office for Term
Loans of such Type.
2.07. Several Obligations of Lenders. The failure of any Lender to make
any Term Loan to be made by it on the date specified therefor shall not relieve
any other Lender of its obligation to make its Term Loan on such date, but
neither any Lender nor Administrative Agent shall be responsible for the failure
of any other Lender to make a Term Loan to be made by such other Lender, and no
Lender shall have any obligation to Administrative Agent or any other Lender for
the failure by such Lender to make any Term Loan required to be made by such
Lender.
2.08. Term Notes; Register. (a) At the request of any Lender, its Term
Loans shall be evidenced by a promissory note, dated the date of borrowing,
payable to such Lender and otherwise duly completed, substantially in the form
of Exhibit A.
(b) The date, amount, Type, interest rate and duration of the Interest
Period (if applicable) of each Term Loan made by each Lender to Borrower and
each payment made on account of the principal thereof, shall be recorded by such
Lender on its books and, prior to any transfer of any Term Note evidencing the
Term Loans held by it, endorsed by such Lender on the schedule attached to such
Term Note or any continuation thereof; provided, however, that the failure of
such Lender to make any such recordation or endorsement shall not affect the
obligations of Borrower to make a payment when due of any amount owing hereunder
or under such Term Note.
(c) Borrower hereby designates Administrative Agent to serve as its
agent, solely for purposes of this Section 2.08, to maintain a register (the
"Register") on which it will record the name and address of each Lender, the
Commitment from time to time of each of the Lenders, the principal amount of the
Term Loans made by each of the Lenders and each repayment in respect of the
principal amount of the Term Loans of each Lender. Failure to make any such
recordation or any error in such recordation shall not affect Borrower's
obligations in respect of such Term Loans. The entries in the Register shall be
conclusive, in the absence of manifest error, and the parties hereto shall treat
each Person whose name is recorded in the Register as the owner of a Term Loan
or other obligation hereunder as the owner thereof for all purposes of the
Credit Documents, notwithstanding any notice
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to the contrary. 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.
2.09. Optional Prepayments and Conversions or Continuations of Term
Loans. Subject to Section 4.04, Borrower shall have the right to prepay Term
Loans, or to Convert Term Loans of one Type into Term Loans of another Type or
to Continue Term Loans of one Type as Term Loans of the same Type, at any time
or from time to time. Borrower shall give Administrative Agent notice of each
such prepayment, Conversion or Continuation as provided in Section 4.05 (and,
upon the date specified in any such notice of prepayment, the amount to be
prepaid shall become due and payable hereunder). Each notice of Conversion or
Continuation shall be substantially in the form of Exhibit G (a "Notice of
Conversion/Continuation"). If LIBOR Loans are prepaid or Converted other than on
the last day of an Interest Period therefor, Borrower shall at such time pay all
expenses and costs required by Section 5.05. Notwithstanding the foregoing, and
without limiting the rights and remedies of the Lenders under Section 10, in the
event that any Event of Default shall have occurred and be continuing,
Administrative Agent may (and at the request of the Majority Lenders shall)
suspend the right of Borrower to Convert any Term Loan into a LIBOR Loan, or to
Continue any Term Loan as a LIBOR Loan, in which event all Term Loans shall be
Converted (on the last day(s) of the respective Interest Periods therefor) or
Continued, as the case may be, as ABR Loans.
2.10. Mandatory Prepayments. (a) Borrower shall prepay the Term Loans as
follows (each such prepayment to be effected in each case in the manner, order
and to the extent specified in subsection (b) below of this Section 2.10):
(i) Casualty Events. Within one Business Day after any Company
receives any Net Available Proceeds from any Casualty Event occurring after
the Closing Date, in an aggregate principal amount equal to 100% of such Net
Available Proceeds; provided, however, that
(x) if no Event of Default then exists or would arise
therefrom, the Net Available Proceeds thereof shall not be required to be
so applied on such date to the extent that Borrower has delivered an
Officers' Certificate to Administrative Agent on or prior to such date
stating that such proceeds shall be used to fund the substitution of
Property used or usable in the business of the Companies or repair,
replace or restore the Property in respect of which such Casualty Event
has occurred, in each case within 90 days following the date of the
receipt of such Net Available Proceeds, and
(y) if all or any portion of such Net Available Proceeds not
required to be applied to the prepayment of Term Loans pursuant to the
preceding proviso (x) is not so used within 90 days after the date of the
receipt of such Net Available Proceeds, such remaining portion shall be
applied on the last day of such period as specified in Section 2.10(b).
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(ii) Equity Issuance. Upon any Equity Issuance on or after the Closing
Date, in an aggregate principal amount equal to 100% of the Net Available
Proceeds of such Equity Issuance.
(iii) Debt Issuance. Upon any Debt Issuance by any Obligor on or after
the Closing Date, in an aggregate principal amount equal to 100% of the Net
Available Proceeds of such Debt Issuance.
(iv) Disposition Events. Within one Business Day after receipt by any
Company of any Net Available Proceeds from any Disposition Event occurring
after the Closing Date, in an aggregate principal amount equal to 100% of
the Net Available Proceeds from such Disposition Event.
(v) Other Required Prepayments. If the terms of any agreement,
instrument or indenture pursuant to which any Indebtedness pari passu with
or junior in right of payment to the Term Loans is outstanding (or pursuant
to which such Indebtedness is guaranteed) require prepayment of such
Indebtedness out of the proceeds of any Disposition or otherwise unless such
proceeds are used to prepay other Indebtedness, then, to the extent not
otherwise required by this Section 2.10(a), the Term Loans shall be repaid
in an amount not less than the minimum amount that would be required to be
prepaid not later than the latest time as and upon such terms so that such
other Indebtedness will not be required to be prepaid pursuant to the terms
of the agreement, indenture or instrument or guarantee governing such other
Indebtedness.
(b) Application. If the amount of any prepayment of Term Loans required
under this Section 2.10 shall be in excess of the amount of the ABR Loans at the
time outstanding, only the portion of the amount of such prepayment as is equal
to the amount of such outstanding ABR Loans shall be immediately prepaid and, at
the election of Borrower, the balance of such required prepayment shall be
either (i) deposited in a collateral account with Administrative Agent pursuant
to documentation and on terms and conditions satisfactory to Administrative
Agent in its sole discretion and applied to the prepayment of LIBOR Loans on the
last day of the then next-expiring Interest Period for LIBOR Loans (with all
interest accruing thereon (net of fees and expenses of Administrative Agent for
such collateral account) for the account of Borrower) or (ii) prepaid
immediately, together with any amounts owing to the Lenders under Section 5.05.
Notwithstanding any such deposit in such collateral account, interest shall
continue to accrue on such Term Loans until prepayment.
2.11. Replacement of Lenders. Borrower shall have the right, if no
Default then exists, to replace any Lender (the "Replaced Lender") with one or
more other Eligible Persons reasonably acceptable to Lead Arranger
(collectively, the "Replacement Lender") if (x) such Lender is charging Borrower
increased costs pursuant to Section 5.01 or 5.06 in excess of those being
charged generally by the other Lenders or such Lender becomes incapable of
making LIBOR Loans as provided in Section 5.03 and/or (y) as provided in Section
12.04(ii), such Lender refuses to consent to certain proposed amendments,
waivers or modifications with respect to this Agreement; provided, however, that
(i) at the time of any replacement pursuant to this Section 2.11, the
Replacement
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Lender shall enter into one or more assignment agreements (and with all fees
payable pursuant to Section 12.06 to be paid by the Replacement Lender) pursuant
to which the Replacement Lender shall acquire all of the Term Loan Commitments
and outstanding Term Loans of the Replaced Lender and, in connection therewith,
shall pay to the Replaced Lender, an amount equal to the sum of (A) the
principal of, and all accrued interest on, all outstanding Term Loans of the
Replaced Lender, and (B) all accrued, but theretofore unpaid, fees owing to the
Replaced Lender pursuant to Section 2.05, and (ii) all obligations of Borrower
owing to the Replaced Lender (other than those specifically described in clause
(i) above in respect of which the assignment purchase price has been, or is
concurrently being, paid, but including any amounts which would be paid to a
Lender pursuant to Section 5.05 if Borrower were prepaying a LIBOR Loan) shall
be paid in full to such Replaced Lender concurrently with such replacement. Upon
the execution of the respective assignment agreement, the payment of amounts
referred to in clauses (i) and (ii) above and, if so requested by the
Replacement Lender, delivery to the Replacement Lender of Term Notes executed by
Borrower, the Replacement Lender shall become a Lender hereunder and the
Replaced Lender shall cease to constitute a Lender hereunder and be released of
all its obligations as a Lender, except with respect to indemnification
provisions applicable to the Replaced Lender under this Agreement, which shall
survive as to such Replaced Lender.
Section 3. Payments of Principal and Interest
3.01. Repayment of Term Loans; Extension of Final Maturity Date. (a)
Borrower hereby promises to pay to Administrative Agent on the Final Maturity
Date for the account of the Lenders the aggregate principal amount of the Term
Loans outstanding.
(b) Borrower may on one occasion extend the Final Maturity Date to any
date which is after the original Final Maturity Date but not later than the date
twelve months after the original Final Maturity Date if each of the following
conditions is satisfied not earlier than 60 nor later than 15 days prior to the
Original Maturity Date (the date on which all such conditions are satisfied, the
"Extension Date"):
(i) Borrower shall have provided a duly completed Extension Notice to the
Administrative Agent (who will then distribute the Extension Notice to the
Lenders at Borrower's expense) and the Lead Arranger of its election to extend
the Final Maturity Date to the date specified therein;
(ii) Borrower shall have complied with all provisions of the Fee Letter
and shall have performed all obligations required thereunder;
(iii) Borrower shall have remitted a non-refundable extension fee in cash
(the "Extension Fee") equal to 3.00% of the aggregate principal amount of
Loans then outstanding to the Administrative Agent for the pro rata benefit
of the Lenders; and
(iv) at the Extension Date, no Default or Event of Default shall then be
in existence or would arise from the transactions to occur on the Extension
Date and all representations and warranties in Section 8 shall be true and
correct on and as of the Extension Date as if
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made on and as of such date and Borrower shall have delivered to the
Administrative Agent an Officers' Certificate certifying as to the same
(except that any representation or warranty which is expressly made as of a
specific date need only be accurate as of such specific date).
3.02. Interest. (a) Borrower hereby promises to pay to Administrative
Agent for the account of each Lender interest on the unpaid principal amount of
each Term Loan made by such Lender to Borrower for the period from and including
the date of such Term Loan to but excluding the date such Term Loan shall be
paid in full at the following rates per annum:
(i) during such periods as such Term Loan is an ABR Loan, the
Alternate Base Rate (as in effect from time to time), plus the Applicable
Margin, and
(ii) during such periods as such Term Loan is a LIBOR Loan, for each
Interest Period relating thereto, the LIBOR Rate for such Term Loan for such
Interest Period, plus the Applicable Margin.
(b) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Term Loan and other overdue amounts owed by any
Obligor under the Credit Documents (including such interest accruing before and
after judgment) shall bear interest at a rate per annum equal to (x) in the case
of principal of any Term Loans, the rate which is 2% in excess of the rate then
borne by such Term Loans and (y) in the case of interest or such other amounts,
the rate which is 2% in excess of the rate otherwise applicable to ABR Loans
from time to time. Interest which accrues under this paragraph shall be payable
on demand.
(c) Accrued interest on each Term Loan shall be payable (i) in the case
of an ABR Loan, monthly on the Monthly Dates, (ii) in the case of a LIBOR Loan,
on the last day of each Interest Period therefor and, if such Interest Period is
longer than one month, at one-month intervals following the first day of such
Interest Period and (iii) in the case of any LIBOR Loan, upon the payment or
prepayment thereof or the Conversion of such Term Loan to a Term Loan of another
Type (but only on the principal amount so paid, prepaid or Converted), except
that interest payable at the rate set forth in Section 3.02(b) shall be payable
from time to time on demand. Promptly after the determination of any interest
rate provided for herein or any change therein, Administrative Agent shall give
notice thereof to the Lenders to which such interest is payable and to Borrower.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01. Payments. (a) Except to the extent otherwise provided herein, all
payments of principal, interest and other amounts to be made by Borrower under
this Agreement and the Term Notes, and, except to the extent otherwise provided
therein, all payments to be made by the Obligors under any other Credit
Document, shall be made in Dollars, in immediately available funds, without
deduction, set-off or counterclaim, to Administrative Agent at its account at
the Principal Office (as set forth in Exhibit M or such other account as
Borrower may be instructed in writing), not later than 11:00 a.m. New York City
time on the date on which such payment shall become due (each such payment made
after such time on such due date to be deemed to have been made on the next
succeeding Business Day).
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(b) Borrower shall, at the time of making each payment under this
Agreement or any Term Note for the account of any Lender, specify (in accordance
with Section 2.09 and 2.10, if applicable) to Administrative Agent (which shall
so notify the intended recipient(s) thereof) the Type of Term Loans or other
amounts payable by Borrower hereunder to which such payment is to be applied
(and in the event that Borrower fails to so specify, or if an Event of Default
has occurred and is continuing, Administrative Agent may distribute such payment
to the Lenders for application to the Obligations under the Credit Documents in
such manner as it or the Majority Lenders, subject to Section 4.02, may
determine to be appropriate).
(c) Each payment received by Administrative Agent under this Agreement or
any Term Note for the account of any Lender shall be paid by Administrative
Agent to such Lender, in immediately available funds, (x) if the payment was
actually received by Administrative Agent prior to 11:00 a.m. (New York City
time) on any day, on such day and (y) if the payment was actually received by
Administrative Agent after 11:00 a.m. (New York City time) on any day, by 1:00
p.m. (New York City time) on the following Business Day (it being understood
that to the extent that any such payment is not made in full by Administrative
Agent, Administrative Agent shall pay to such Lender, upon demand, interest at
the Federal Funds Rate from the date such amount was required to be paid to such
Lender pursuant to the foregoing clauses until the date Administrative Agent
pays such Lender the full amount).
(d) If the due date of any payment under this Agreement or any Term Note
would otherwise fall on a day that is not a Business Day, such date shall be
extended to the next succeeding Business Day, and interest shall be payable for
any principal so extended for the period of such extension at the rate then
borne by such principal.
4.02. Pro Rata Treatment. Except to the extent otherwise provided herein:
(a) each borrowing of Term Loans from the Lenders under Section 2.01 shall be
made from the Lenders, each payment of commitment fee under Section 2.05 in
respect of Term Loan Commitments shall be made for account of the Lenders, and
each termination or reduction of the amount of the Term Loan Commitments under
Section 2.04 shall be applied to the Term Loan Commitments of the Lenders, pro
rata according to their respective Percentages; (b) except as otherwise provided
in Section 5.04, LIBOR Loans having the same Interest Period shall be allocated
pro rata among the Lenders according to the amounts of their respective
Percentages (in the case of the making of Term Loans) or their respective Term
Loans (in the case of Conversions and Continuations of Term Loans); (c) each
payment or prepayment of principal of Term Loans shall be made for the account
of the relevant Lenders pro rata in accordance with the respective unpaid
outstanding principal amounts of the Term Loans held by them; and (d) each
payment of interest on Term Loans shall be made for account of the relevant
Lenders pro rata in accordance with the amounts of interest on such Term Loans
then due and payable to the respective Lenders.
4.03. Computations. Interest on LIBOR Loans and commitment fees shall be
computed on the basis of a year of 360 days and actual days elapsed (including
the first day but excluding the last day) occurring in the period for which such
amounts are payable and interest on ABR Loans shall be computed on the basis of
a year of 365 or 366 days, as the case may be, and actual days
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elapsed (including the first day but excluding the last day) occurring in the
period for which such amounts are payable. Notwithstanding the foregoing, for
each day that the Alternate Base Rate is calculated by reference to the Federal
Funds Rate, interest on ABR Loans shall be computed on the basis of a year of
360 days and actual days elapsed (including the first day but excluding the last
day).
4.04. Minimum Amounts. Except for mandatory prepayments made pursuant to
Section 2.10 and Conversions or prepayments made pursuant to Section 5.04, each
borrowing, Conversion and prepayment of principal of Term Loans shall be in an
amount at least equal to $100,000 and in multiples of $100,000 in excess thereof
(borrowings, Conversions or prepayments of or into Loans of different Types or,
in the case of LIBOR Loans, having different Interest Periods at the same time
hereunder to be deemed separate borrowings, Conversions and prepayments for
purposes of the foregoing, one for each Type or Interest Period); provided that
(i) if the Unutilized Commitments are less than $100,000, Borrower may borrow
such lesser amount and (ii) if the outstanding amount of Term Loans is less than
$100,000, the Conversion or prepayment may be in such lesser amount. Anything in
this Agreement to the contrary notwithstanding, the aggregate principal amount
of LIBOR Loans having the same Interest Period shall be in an amount at least
equal to $500,000 and in multiples of $100,000 in excess thereof and, if any
LIBOR Loans or portions thereof would otherwise be in a lesser principal amount
for any period, such Term Loans or portions, as the case may be, shall be ABR
Loans during such period.
4.05. Certain Notices. Notices by Borrower to Administrative Agent of
terminations or reductions of the Term Loan Commitments, of borrowings,
Conversions, Continuations and optional prepayments of Term Loans, of Types of
Term Loans and of the duration of Interest Periods shall be irrevocable and
shall be effective only if received by Administrative Agent by telephone not
later than 11:00 a.m. New York City time (promptly followed by written notice
via telecopier) on the number of Business Days prior to the date of the relevant
termination, reduction, borrowing, Conversion, Continuation or prepayment or the
first day of such Interest Period specified in the table below.
NOTICE PERIODS
Notice Number of Business Days Prior
------ -----------------------------
Termination or reduction of Term Loan
Commitments 2
Borrowing or optional prepayment of, or
Conversions into, ABR Loans 1
Borrowing or optional prepayment of,
Conversions into, Continuations as, or
duration of Interest Periods for, LIBOR
Loans 3
Each such notice of termination or reduction shall specify the amount of
the Term Loan Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or prepayment shall specify the amount
(subject to Section 4.04) and Type of each Term
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Loan to be borrowed, Converted, Continued or prepaid and the date of borrowing,
Conversion, Continuation or prepayment (which shall be a Business Day). Each
such notice of the duration of an Interest Period shall specify the Term Loans
to which such Interest Period is to relate. Administrative Agent shall promptly
notify the Lenders of the contents of each such notice. In the event that
Borrower fails to select the Type of Term Loan, or the duration of any Interest
Period for any LIBOR Loan, within the time period and otherwise as provided in
this Section 4.05, such Term Loan (if outstanding as a LIBOR Loan) will be
automatically Converted into an ABR Loan on the last day of the then current
Interest Period for such Term Loan or (if outstanding as an ABR Loan) will
remain as, or (if not then outstanding) will be made as, an ABR Loan.
4.06. Non-Receipt of Funds by Administrative Agent. Unless Administrative
Agent shall have received written notice from a Lender or Borrower (the "Payor")
prior to the date on which the Payor is to make payment to Administrative Agent
of (in the case of a Lender) the proceeds of a Term Loan to be made by such
Lender hereunder or a payment to Administrative Agent for the account of one or
more of the Lenders hereunder (such payment being herein called the "Required
Payment"), which notice shall be effective upon receipt, that the Payor does not
intend to make the Required Payment to Administrative Agent, Administrative
Agent may assume that the Required Payment has been made and may, in reliance
upon such assumption (but shall not be required to), make the amount thereof
available to the intended recipient(s) on such date; and, if the Payor has not
in fact made the Required Payment to Administrative Agent, the recipient(s) of
such payment shall, on demand, repay to Administrative Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date (the "Advance Date") such amount was so made
available by Administrative Agent until the date Administrative Agent recovers
such amount at a rate per annum equal to the Federal Funds Rate for such day
and, if such recipient(s) shall fail promptly to make such payment,
Administrative Agent shall be entitled to recover such amount, on demand, from
the Payor, together with interest as aforesaid; provided, however, that if
neither the recipient(s) nor the Payor shall return the Required Payment to
Administrative Agent within three Business Days of the date such demand was
made, then, retroactively to the Advance Date, the Payor and the recipient(s)
shall each be obligated to pay interest on the Required Payment as follows
(without double recovery):
(i) if the Required Payment shall represent a payment to be made by to
the Lenders, Borrower and the recipient(s) shall each be obligated
retroactively to the Advance Date to pay interest in respect of the Required
Payment at the rate set forth in Section 3.02(b) (without duplication of the
obligation of Borrower under Section 3.02 to pay interest on the Required
Payment at the rate set forth in Section 3.02(b)), it being understood that
the return by the recipient(s) of the Required Payment to Administrative
Agent shall not limit such obligation of Borrower under Section 3.02 to pay
interest at the rate set forth in Section 3.02(b) in respect of the Required
Payment; and
(ii) if the Required Payment shall represent proceeds of a Term Loan to
be made by the Lenders to Borrower, the Payor or Borrower shall each be
obligated retroactively to the Advance Date to pay interest in respect of
the Required Payment pursuant to Section 3.02, it being understood that the
return by Borrower of the Required Payment to Administrative
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Agent shall not limit any claim Borrower may have against the Payor in
respect of such Required Payment.
4.07. Right of Setoff; Sharing of Payments; Etc. (a) If any Event of
Default shall have occurred and be continuing, each Obligor agrees that, in
addition to (and without limitation of) any right of setoff, banker's lien or
counterclaim a Lender may otherwise have, each Lender shall be entitled, at its
option (to the fullest extent permitted by law), to set off and apply any
deposit (general or special, time or demand, provisional or final), or other
indebtedness, held by it for the credit or account of such Obligor at any of its
offices, in Dollars or in any other currency, against any principal of or
interest on any of such Lender's Term Loans or any other amount payable to such
Lender hereunder that is not paid when due (regardless of whether such deposit
or other indebtedness is then due to such Obligor), in which case it shall
promptly notify such Obligor and Administrative Agent thereof; provided,
however, that such Lender's failure to give such notice shall not affect the
validity thereof.
(b) Each of the Lenders agrees that, if it should receive (other than
pursuant to Section 5 or the Administrative Agent's Fee Letter) any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Term Loans or fees, the sum of which with respect to the related sum or
sums received by other Lenders is in a greater proportion than the total of such
amounts then owed and due to such Lender bears to the total of such amounts then
owed and due to all of the Lenders immediately prior to such receipt, then such
Lender receiving such excess payment shall purchase for cash without recourse or
warranty from the other Lenders an interest in the Obligations of the respective
Obligor to such Lenders in such amount as shall result in a proportional
participation by all of the Lenders in such amount; provided, however, that if
all or any portion of such excess amount is thereafter recovered from such
Lender, such purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest. Borrower consents to the
foregoing arrangements.
(c) Borrower agrees that any Lender so purchasing such a participation
may exercise all rights of setoff, banker's lien, counterclaim or similar rights
with respect to such participation as fully as if such Lender were a direct
holder of Loans or other amounts (as the case may be) owing to such Lender in
the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other Indebtedness or
obligation of any Obligor. If, under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a setoff to
which this Section 4.07 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section 4.07 to share in the
benefits of any recovery on such secured claim.
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Section 5. Yield Protection, Etc.
5.01. Additional Costs. (a) If the adoption of, or any change in, in each
case after the date hereof, any Requirement of Law or in the interpretation or
application thereof or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority or the NAIC made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Term Note or any Term Loan made by it or
change the basis of taxation of payments to such Lender in respect thereof
by any Governmental Authority (except for Taxes covered by or expressly
excluded from coverage by Section 5.06 and changes in the rate of tax on the
overall net income of such Lender or its Applicable Lending Office, or any
affiliate thereof or franchise tax by any Governmental Authority);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the LIBOR Rate hereunder; or
(iii) shall impose on such Lender any other condition (excluding Taxes);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender reasonably deems to be material, of making,
converting into, continuing or maintaining LIBOR Loans or to reduce any amount
receivable hereunder in respect thereof then, in any such case, Borrower shall
pay such Lender, upon its written demand, within 30 days any additional amounts
necessary to compensate such Lender for such increased cost or reduced amount
receivable. If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify Borrower, through
Administrative Agent, of the event by reason of which it has become so entitled.
A certificate as to any additional amounts setting forth the calculation of such
additional amounts pursuant to this Section 5.01 submitted by such Lender,
through Administrative Agent, to Borrower shall be conclusive in the absence of
clearly demonstrable error. Without limiting the survival of any other covenant
hereunder, this Section 5.01 shall survive the termination of this Agreement and
the payment of the Term Notes and all other amounts payable hereunder.
(b) In the event that any Lender shall have reasonably determined that
the adoption after the date hereof of any law, rule, regulation or guideline
regarding capital adequacy (or any change after the date hereof therein or in
the interpretation or application thereof) or compliance by any Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any central bank
or Governmental Authority or the NAIC, in each case, made subsequent to the date
hereof including, without limitation, the issuance after the date hereof of any
final rule, regulation or guideline, does or shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved
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but for such adoption, change or compliance (taking into consideration such
Lender's or such corporation's policies with respect to capital adequacy) by an
amount reasonably deemed by such Lender to be material, then from time to time,
after submission by such Lender to Borrower (with a copy to Administrative
Agent) of a written request therefor, Borrower shall pay to such Lender within
30 days such additional amount or amounts as will compensate such Lender for
such reduction.
5.02. Inability to Determine Interest Rate. If prior to the first day of
any Interest Period: (a) Administrative Agent shall have reasonably determined
(which determination shall be conclusive and binding upon Borrower) that, by
reason of circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the LIBOR Base Rate for such Interest
Period, or (b) Administrative Agent shall have received notice from the Majority
Lenders that the LIBOR Base Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to such Lenders
(or any affiliate of any such Lender from which such Lender customarily obtains
funds) (as conclusively certified by such Lenders) of making or maintaining
their affected Term Loans during such Interest Period, Administrative Agent
shall give telecopy or telephonic notice thereof to Borrower and the Lenders as
soon as practicable thereafter. If such notice is given, (x) any LIBOR Loans
requested to be made on the first day of such Interest Period shall be made as
ABR Loans, (y) any Term Loans that were to have been Converted on the first day
of such Interest Period to LIBOR Loans shall be Converted to or Continued as ABR
Loans and (z) any outstanding LIBOR Loans shall be Converted, on the first day
of such Interest Period, to ABR Loans. Until such notice has been withdrawn by
Administrative Agent, no further LIBOR Loans shall be made or Continued as, nor
shall Borrower have the right to Convert ABR Loans to, LIBOR Loans. The
Administrative Agent shall give telecopy or telephonic notice to Borrower and
the Lenders as soon as practicable after it determines the conditions giving
rise to notice no longer apply.
5.03. Illegality. Notwithstanding any other provision of this Agreement,
in the event that any change after the date hereof in any Requirement of Law or
in the interpretation or application thereof shall make it unlawful for any
Lender or its Applicable Lending Office to honor its obligation to make or
maintain LIBOR Loans hereunder (and, in the sole opinion of such Lender, the
designation of a different Applicable Lending Office would either not avoid such
unlawfulness or would be disadvantageous to such Lender), then such Lender shall
promptly notify Borrower thereof (with a copy to Administrative Agent) and such
Lender's obligation to make or Continue, or to Convert Term Loans of any other
Type into, LIBOR Loans shall be suspended until such time as such Lender may
again make and maintain LIBOR Loans (in which case the provisions of Section
5.04 shall be applicable).
5.04. Treatment of Affected Term Loans. If the obligation of any Lender
to make LIBOR Loans or to Continue, or to Convert ABR Loans into, LIBOR Loans
shall be suspended pursuant to Section 5.03, such Lender's LIBOR Loans shall be
automatically Converted into ABR Loans on the last day(s) of the then current
Interest Period(s) for such LIBOR Loans (or on such earlier date as such Lender
may specify to Borrower with a copy to Administrative Agent as is required by
law) and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 5.03 which gave rise to such Conversion no
longer exist:
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(i) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal which would otherwise
be applied to such Lender's LIBOR Loans shall be applied instead to its ABR
Loans; and
(ii) all Term Loans which would otherwise be made or Continued by such
Lender as LIBOR Loans shall be made or Continued instead as ABR Loans and
all ABR Loans of such Lender which would otherwise be Converted into LIBOR
Loans shall remain as ABR Loans.
If such Lender gives notice to Borrower with a copy to Administrative Agent that
the circumstances specified in Section 5.03 which gave rise to the Conversion of
such Lender's LIBOR Loans pursuant to this Section 5.04 no longer exist (which
such Lender agrees to do promptly upon such circumstances, ceasing to exist) at
a time when LIBOR Loans are outstanding, such Lender's ABR Loans shall be
automatically Converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding LIBOR Loans, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding LIBOR Loans
and by such Lender are held pro rata (as to principal amounts, Types and
Interest Periods) in accordance with their respective Term Loan Commitments.
5.05. Compensation. (a) Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (1) default by Borrower in payment when due of the
principal amount of or interest on any LIBOR Loan, (2) default by Borrower in
making a borrowing of, Conversion into or Continuation of LIBOR Loans after
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (3) default by Borrower or in making any
prepayment after Borrower has given a notice thereof in accordance with the
provisions of this Agreement, or (4) the making of a payment or a prepayment of
LIBOR Loans on a day which is not the last day of an Interest Period with
respect thereto, including in each case, any such loss (including loss of
margin) or expense arising from the reemployment of funds obtained by it or from
fees payable to terminate the deposits from which such funds were obtained.
(b) For the purpose of calculation of all amounts payable to a Lender
under this Section 5.05 each Lender shall be deemed to have actually funded its
relevant LIBOR Loan through the purchase of a deposit bearing interest at the
LIBOR Rate in an amount equal to the amount of the LIBOR Loan and having a
maturity comparable to the relevant Interest Period; provided, however, that
each Lender may fund each of its LIBOR Loans in any manner it sees fit, and the
foregoing assumption shall be utilized only for the calculation of amounts
payable under this subsection. Any Lender requesting compensation pursuant to
this Section 5.05 will furnish to Administrative Agent, Borrower a certificate
setting forth the basis and amount of such request and such certificate, absent
manifest error, shall be conclusive. Without limiting the survival of any other
covenant hereunder, this covenant shall survive the termination of this
Agreement and the payment of the Term Notes and all other amounts payable
hereunder.
5.06. Net Payments. (a) All payments made by any Obligor hereunder or
under any Term Note or any Guarantee will be made without setoff, counterclaim
or other defense. Except as
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provided in Section 5.06(b), all such payments will be made free and clear of,
and without deduction or withholding for, any present or future Taxes now or
hereafter imposed by any Governmental Authority or by any political subdivision
or taxing authority thereof or therein with respect to such payments (but
excluding any Excluded Tax) and all interest, penalties or similar liabilities
with respect thereto (all such Taxes (other than Excluded Taxes) being referred
to collectively as "Covered Taxes"). If any Covered Taxes are so levied or
imposed, each Obligor agrees on a joint and several basis to pay the full amount
of such Covered Taxes, and such additional amounts as may be necessary so that
every payment of all amounts due under this Agreement, the Guarantees or under
any Term Note, after withholding or deduction for or on account of any Covered
Taxes, will not be less than the amount provided for herein or in such Term
Note. If any amounts are payable in respect of Covered Taxes pursuant to the
preceding sentence, each Obligor agrees, notwithstanding the definition of
Excluded Taxes, to reimburse on a joint and several basis each Lender, upon the
written request of such Lender, (i) for Taxes imposed on or measured by the net
income or net profits of such Lender pursuant to the laws of the jurisdiction in
which such Lender is organized or in which the principal office or Applicable
Lending Office of such Lender is located or under the laws of any political
subdivision or taxing authority of any such jurisdiction by reason of the making
of payments in respect of Covered Taxes pursuant to this Section (including
pursuant to this sentence) and (ii) for any withholding of Taxes as such Lender
shall determine are payable by, or withheld from, such Lender in respect of
amounts paid in respect of Covered Taxes to or on behalf of such Lender pursuant
to the preceding sentence and in respect of any amounts paid to or on behalf of
such Lender pursuant to this sentence. Each Obligor will furnish to
Administrative Agent within 45 days after the date the payment of any Covered
Taxes is due pursuant to applicable law certified copies of tax receipts or
other documentation reasonably satisfactory to such Lender evidencing such
payment by such Obligor. The Obligors agree to jointly and severally indemnify
and hold harmless each Lender, and reimburse such Lender upon its written
request, for the amount of any Covered Taxes so levied or imposed and paid by
such Lender and any liability (including penalties, additions to tax, interest
and expenses) arising therefrom or with respect thereto.
"Excluded Taxes" shall mean other than as provided in the fourth sentence
of the first paragraph of this Section 5.06(a), any Tax (other than any Other
Taxes) (i) imposed on or measured by the net income or net profits of a Lender
pursuant to the laws of the jurisdiction in which it is organized or the
jurisdiction in which the principal office or Applicable Lending Office of such
Lender is located or any jurisdiction in which such Lender conducts business or
any subdivision thereof or therein and (ii) imposed on any Lender in the nature
of franchise taxes or other similar taxes imposed as a result of such Lender
doing business in a particular jurisdiction.
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) (a "Non-U.S. Lender") agrees to
deliver to Borrower and Administrative Agent on or prior to the Closing Date or,
in the case of a Lender that is an assignee or transferee of an interest under
this Agreement pursuant to Section 12.06 (unless the respective Lender was
already a Lender hereunder immediately prior to such assignment or transfer), on
the date of such assignment or transfer to such Lender, (i) two accurate and
complete original signed copies of Internal Revenue Service Form 4224 or 1001
(or successor forms) certifying to such Lender's entitlement to a complete
exemption from United States withholding tax with respect to payments to be made
under
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this Agreement and under any Term Note (or, with respect to any assignee Lender,
at least as extensive as the assigning Lender), or (ii) if the Lender is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver
either Internal Revenue Service Form 1001 or 4224 pursuant to clause (i) above,
(x) a certificate substantially in the form of Exhibit H (any such certificate,
a "Foreign Lender Certificate") and (y) two accurate and complete original
signed copies of Internal Revenue Service Form W-8 (or successor form)
certifying to such Lender's entitlement to a complete exemption from United
States withholding tax with respect to payments to be made under this Agreement
and under any Term Note (or, with respect to any assignee Lender, at least as
extensive as the assigning Lender). In addition, each Lender agrees that from
time to time after the Closing Date, when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in any
material respect, it will deliver to Borrower and Administrative Agent two new
accurate and complete original signed copies of Internal Revenue Service Form
4224 or 1001, or Form W-8 and a Foreign Lender Certificate, as the case may be,
and such other forms as may be required in order to confirm or establish the
entitlement of such Lender to a continued exemption from or reduction in United
States withholding tax with respect to payments under this Agreement and any
Term Note, or it shall immediately notify Borrower and Administrative Agent of
its inability to deliver any such Form or Certificate, in which case such Lender
shall not be required to deliver any such form or certificate pursuant to this
Section 5.06(b) for so long as such payments may be made from United States
withholding tax. Notwithstanding the foregoing, no Lender shall be required to
deliver any such form or certificate if a change in treaty, law or regulation
has occurred prior to the date on which such delivery would otherwise be
required that renders any such form or certificate inapplicable or would prevent
the Lender from duly completing and delivering any such form or certificate with
respect to it and such Lender so advises Borrower. No Obligor shall be required
to indemnify any Non-U.S. Lender, or to pay any additional amounts to any
Non-U.S. Lender, in respect of any Covered Taxes to the extent that the
obligation to pay such Covered Taxes would not have arisen but for a failure by
such Non-U.S. Lender to comply with the provisions of this Section 5.06(b).
Notwithstanding anything to the contrary contained in the preceding sentence or
elsewhere in this Section 5.06 and except as set forth in Section 12.06(b),
Borrower agrees to pay additional amounts and to indemnify each Lender in the
manner set forth in Section 5.06(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any amounts
deducted or withheld by it as described in the immediately preceding sentence as
a result of any changes after the Closing Date in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the interpretation
thereof, relating to the deducting or withholding of income or similar Covered
Taxes.
(c) In addition, Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from the execution, delivery or registration of this
Agreement or the Term Notes (hereinafter referred to as "Other Taxes").
(d) Any Lender claiming any additional amounts payable pursuant to this
Section 5.06 agrees to use (at the Obligors' expense) reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Applicable Lending Office if the making of such
change would avoid the need for, or reduce the amount of, any such additional
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amounts that may thereafter accrue and would not, in the sole judgment of such
Lender, be otherwise disadvantageous to such Lender.
5.07 Notices. Each Lender will furnish to Borrower at the time of request
for compensation under paragraph (a) or (b) of Section 5.01 or Section 5.06 a
certificate setting forth the basis, amount and reasonable detail of computation
of each request by such Lender for compensation under Section 5.01 or Section
5.06, which certificate shall, except for demonstrable error, be final,
conclusive and binding for all purposes.
Section 6. Guarantee.
6.01. The Guarantee. The Guarantors hereby jointly and severally
guarantee as a primary obligor and not as a surety to each Creditor and their
respective successors and assigns the prompt payment in full when due (whether
at stated maturity, by acceleration or otherwise) of the principal of and
interest (including any interest, fees, costs or charges that would accrue but
for the provisions of the Bankruptcy Code after any bankruptcy or insolvency
petition under the Bankruptcy Code) on the Term Loans made by the Lenders to,
and the Term Notes held by each Lender of, Borrower, and all other Obligations
from time to time owing to the Creditors by any Obligor under any Credit
Document, in each case strictly in accordance with the terms thereof (such
obligations being herein collectively called the "Guaranteed Obligations"). The
Guarantors hereby jointly and severally agree that if Borrower shall fail to pay
in full when due (whether at stated maturity, by acceleration or otherwise) any
of the Guaranteed Obligations, the Guarantors will promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Guaranteed Obligations, the same
will be promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal. Subject to Section 6.03, the obligations of the Guarantors under this
Section 6.01 shall terminate when all Obligations have been paid in full.
6.02. Obligations Unconditional. The obligations of the Guarantors under
Section 6.01 are absolute, irrevocable and unconditional, joint and several,
irrespective of the value, genuineness, validity, regularity or enforceability
of the obligations of Borrower under this Agreement, the Term Notes or any other
agreement or instrument referred to herein or therein, or any substitution,
release or exchange of any other guarantee of or security for any of the
Guaranteed Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or Guarantor
(except for payment in full). Without limiting the generality of the foregoing,
the occurrence of any one or more of the following shall not alter or impair the
liability of the Guarantors hereunder, which shall remain absolute, irrevocable
and unconditional under any and all circumstances as described above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or compliance
shall be waived;
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(ii) any of the acts mentioned in any of the provisions of this
Agreement or the Term Notes or any other agreement or instrument referred to
herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be amended in any
respect, or any right under this Agreement, the Term Notes or any other
Credit Document or any other agreement or instrument referred to herein or
therein shall be amended or waived in any respect or any other guarantee of
any of the Guaranteed Obligations or any security therefor shall be released
or exchanged in whole or in part or otherwise dealt with;
(iv) any lien or security interest granted to, or in favor of, any
Creditor as security for any of the Guaranteed Obligations shall fail to be
perfected; or
(v) any other Guarantor shall be released.
The Guarantors hereby expressly waive diligence, presentment, demand of
payment, protest and all notices whatsoever, and any requirement that any
Creditor thereof exhaust any right, power or remedy or proceed against Borrower
under this Agreement or the Term Notes or any other agreement or instrument
referred to herein or therein, or against any other Person under any other
guarantee of, or security for, any of the Guaranteed Obligations. The Guarantors
waive any and all notice of the creation, renewal, extension, waiver,
termination or accrual of any of the Guaranteed Obligations and notice of or
proof of reliance by any Creditor upon this guarantee or acceptance of this
guarantee, and the Guaranteed Obligations, and any of them, shall conclusively
be deemed to have been created, contracted or incurred in reliance upon this
guarantee, and all dealings between Borrower and the Creditor, shall likewise be
conclusively presumed to have been had or consummated in reliance upon this
guarantee. This guarantee shall be construed as a continuing, absolute,
irrevocable and unconditional guarantee of payment without regard to any right
of offset with respect to the Guaranteed Obligations at any time or from time to
time held by the Creditor, and the obligations and liabilities of the Guarantors
hereunder shall not be conditioned or contingent upon the pursuit by the
Creditor or any other Person at any time of any right or remedy against Borrower
or against any other Person which may be or become liable in respect of all or
any part of the Guaranteed Obligations or against any collateral security or
guarantee therefor or right of offset with respect thereto. This guarantee shall
remain in full force and effect and be binding in accordance with and to the
extent of its terms upon the Guarantors and the successors and assigns thereof,
and shall inure to the benefit of the Lenders, and their respective successors
and assigns, notwithstanding that from time to time during the term of this
Agreement there may be no Guaranteed Obligations outstanding.
6.03. Reinstatement. The obligations of the Guarantors under this Section
6 shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of Borrower in respect of the Guaranteed Obligations is
rescinded or must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise. The Guarantors jointly and severally agree that
they will indemnify each Creditor on demand for all reasonable costs and
expenses (including reasonable fees of counsel) in-
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curred by such Creditor in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law, other than any
costs or expenses resulting from the gross negligence or bad faith of such
Creditor.
6.04. Subrogation; Subordination. Each Guarantor hereby agrees that until
the indefeasible payment and satisfaction in full in cash of all Guaranteed
Obligations and the expiration and termination of the Term Loan Commitments of
the Lenders under this Agreement it shall not exercise any right or remedy
arising by reason of any performance by it of its guarantee in Section 6.01,
whether by subrogation or otherwise, against Borrower or any other Guarantor of
any of the Guaranteed Obligations or any security for any of the Guaranteed
Obligations. The payment of any amounts due with respect to any indebtedness of
Borrower or any other Guarantor now or hereafter owing to any Guarantor by
reason of any payment by such Guarantor under the Guarantee in this Section 6 is
hereby subordinated to the prior indefeasible payment in full in cash of the
Guaranteed Obligations. Each Guarantor agrees that it will not demand, ▇▇▇ for
or otherwise attempt to collect any such indebtedness of Borrower to such
Guarantor until the Obligations shall have been indefeasibly paid in full in
cash. If, notwithstanding the foregoing sentence, any Guarantor shall prior to
the indefeasible payment in full in cash of the Guaranteed Obligations collect,
enforce or receive any amounts in respect of such indebtedness, such amounts
shall be collected, enforced and received by such Guarantor as trustee for the
Creditors and be paid over to Administrative Agent on account of the Guaranteed
Obligations without affecting in any manner the liability of such Guarantor
under the other provisions of the guaranty contained herein.
6.05. Remedies. The Guarantors jointly and severally agree that, as
between the Guarantors and the Creditors, the obligations of Borrower under this
Agreement and the Term Notes may be declared to be forthwith due and payable as
provided in Section 10 (and shall be deemed to have become automatically due and
payable in the circumstances provided in said Section 10) for purposes of
Section 6.01, notwithstanding any stay, injunction or other prohibition
preventing such declaration (or such obligations from becoming automatically due
and payable) as against Borrower and that, in the event of such declaration (or
such obligations being deemed to have become automatically due and payable),
such obligations (whether or not due and payable by Borrower) shall forthwith
become due and payable by the Guarantors for purposes of Section 6.01.
6.06. Instrument for the Payment of Money. Each Guarantor hereby
acknowledges that the guarantee in this Section 6 constitutes an instrument for
the payment of money, and consents and agrees that any Lender or Agent, at its
sole option, in the event of a dispute by such Guarantor in the payment of any
moneys due hereunder, shall have the right to bring a motion-action under New
York CPLR Section 3213.
6.07. Continuing Guarantee. The guarantee in this Section 6 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
6.08. General Limitation on Guarantee Obligations. In any action or
proceeding involving any state corporate law, or any state, federal or foreign
bankruptcy, insolvency, reorganiza-
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tion or other law affecting the rights of creditors generally, if the
obligations of any Guarantor under Section 6.01 would otherwise be held or
determined to be void, voidable, invalid or unenforceable, or subordinated to
the claims of any other creditors on account of the amount of its liability
under Section 6.01, then, notwithstanding any other provision to the contrary,
the amount of such liability shall, without any further action by such
Guarantor, any Creditor or any other Person, be automatically limited and
reduced to the highest amount that is valid and enforceable and not subordinated
to the claims of other creditors as determined in such action or proceeding.
Section 7. Conditions Precedent
7.01. Conditions to Initial Term Loans. The effectiveness of this
Agreement and the obligation of the Lenders to make any initial extension of
credit hereunder is subject to the satisfaction of the conditions precedent that
the Closing Date shall have occurred (or shall occur simultaneously therewith)
and to the satisfaction of the additional conditions precedent that (the date of
the satisfaction (or waiver) of all of the conditions to the initial extension
of credit in this Section 7.01, the "Closing Date"):
(i) Documentation and Evidence of Certain Matters. Lead Arranger shall
have received the following documents, each duly executed where appropriate
(with sufficient conformed copies for each Lender), each of which shall be
satisfactory in form and substance to Lead Arranger or the Lenders, as
applicable and set forth below:
(1) Corporate Documents. Certified true and complete copies of
the charter and by-laws and all amendments thereto (or equivalent
documents) of each Obligor and of all corporate authority for each
Obligor (including board of directors resolutions and evidence of the
incumbency, including specimen signatures, of officers) with respect to
the execution, delivery and performance of such of the Credit Documents
to which such Obligor is intended to be a party and each other document
to be delivered by such Obligor from time to time in connection herewith
and the extensions of credit hereunder, certified as of the Closing Date
as complete and correct copies thereof by the Secretary or an Assistant
Secretary of such Obligor.
(2) Officers' Certificate. An Officers' Certificate of Borrower,
dated the Closing Date, (x) to the effect set forth in clauses (a) and
(b) of Section 7.02(i), (y) to the effect that all conditions precedent
to the making of such initial extension of credit have been satisfied and
(z) stating that (a) all requisite Governmental Authorities and third
parties have approved or consented to the transactions contemplated
hereby to the extent required (without the imposition of any burdensome
or materially adverse conditions or requirements), (b) all such approvals
are in full force and effect and (c) there is no Proceeding, actual or
threatened, that has or could have a reasonable likelihood of
restraining, preventing or imposing materially burdensome conditions on
any of the transactions contemplated hereby. Lead Arranger shall have
received copies (certified by Borrower as true and correct) of any such
approvals or consents so obtained.
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(3) Opinion of Counsel. Opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
counsel to the Obligors, substantially in the form of Exhibit D.
(4) Credit Agreement. This Agreement, (i) executed and delivered
by a duly authorized officer of each Obligor, and (ii) executed and
delivered by a duly authorized officer of each Lender and Agent.
(5) Term Notes. The Term Notes, duly completed and executed for
each Lender that has requested Term Notes prior to the Closing Date.
(6) Solvency Certificate. A certificate in the form of Exhibit C
from the chief financial officer of Borrower in form and substance
reasonably satisfactory to Lead Arranger and the Lenders with respect to
the Solvency (on a consolidated basis) of each Obligor immediately after
the consummation of the transactions to occur on the Closing Date.
(7) Security Agreement. The Security Agreement (which shall be
in full force and effect), duly authorized, executed and delivered by the
Obligors and Administrative Agent, and the certificates identified under
the name of such Obligors in Schedule I-A and Schedule I-B to the
Security Agreement, accompanied by undated stock powers, instruments of
assignment or issuer acknowledgements executed in blank if applicable,
and the Intercompany Notes identified under the name of such Obligors in
Schedule II to the Security Agreement, accompanied by undated notations
or instruments of assignment executed in blank.
(ii) No Material Adverse Change. There shall not have occurred or
become known any material adverse change, or any condition or event that
could reasonably be expected to result in a material adverse change, in the
business, assets, operations, properties, liabilities, prospects or
condition (financial or otherwise) of Borrower and the Subsidiaries taken as
a whole or of Mobeo since December 31, 1998.
(iii) Terms of Acquisition. The Acquisition Agreement shall be in full
force and effect. The terms, conditions and structure of the Mobeo
Acquisition and the Acquisition Agreement, including any amendments thereto
(and the documentation therefor ) shall be in form and substance reasonably
satisfactory to the Lead Arranger. Lead Arranger shall have received copies
of all filings made with any governmental authority in connection with the
Mobeo Acquisition. The Mobeo Acquisition shall have been or shall
simultaneously be consummated in all material respects in accordance with
the terms hereof and the terms of the Acquisition Agreement and the other
documentation therefor (without the waiver or amendment of any of the terms
thereof unless consented to by Lead Arranger and the Lenders) that are in
form and substance reasonably satisfactory to Agents (with any condition
therein requiring the satisfaction or consent of Borrower being deemed to
require the satisfaction of Lead Arranger).
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(iv) Indebtedness. After giving effect to the Mobeo Acquisition and the
other transactions contemplated hereby, each Company shall have outstanding
no indebtedness or preferred stock (or direct or indirect guarantee or other
credit support in respect thereof) outstanding other than the Term Loans and
the Indebtedness set forth on Schedule 8.24.
(v) Financial Statements. The Lenders shall have received (i) audited
financial statements of Borrower for the three fiscal years ended December
31, 1998, (ii) unaudited financial statements of Borrower for the fiscal
periods most recently ended (including without limitation monthly financial
statements for any such period of less than three months, if available),
(iii) a pro forma opening balance sheet of Borrower as of the date of such
most recent financial statement, reflecting the proposed legal and capital
structure and (iv) projected financial statements (including balance sheets
and statements of operations and cash flows) of Borrower and its
subsidiaries for the ten-year period after the Closing Date, all of the
foregoing in form and substance reasonably satisfactory to the Lead
Arranger.
(vi) Contingent Liabilities. The Lead Arranger and the Lenders shall be
satisfied as to the amount and nature of all tax, ERISA, employee retirement
benefit, and other contingent liabilities to which any Company may be
subject, and the plans of each Company with respect thereto.
(vii) Capitalization. The Lead Arranger and the Lenders shall be
satisfied (in their reasonable judgment) with the proposed and actual
capitalization and corporate and organizational structure of Borrower and
its subsidiaries (after giving effect to the Transactions), including as to
direct and indirect ownership and as to the terms of the indebtedness and
capital stock of Borrower and its subsidiaries.
(viii) Budget. The Lenders shall have received a reasonably satisfactory
business plan or budget for Borrower and its subsidiaries after giving
effect to the Transactions for the remainder of the 1999 fiscal year and the
fiscal year 2000.
(ix) Proceedings. There shall not exist any threatened or pending
action, proceeding or counterclaim by or before any court or governmental,
administrative or regulatory agency or authority, domestic or foreign, (i)
challenging the consummation of any of the Transactions or that could in the
sole judgment of the Lead Arranger and the Required Lenders restrain,
prevent or impose burdensome or adverse conditions on the Transactions,
individually or in the aggregate, or any other transaction contemplated
hereunder, (ii) seeking to prohibit the ownership or operation by Borrower
or any of its subsidiaries of all or a material portion of any of their
businesses or assets or the Target or (iii) seeking to obtain, or having
resulted in the entry of, any judgment, order or injunction that (a) would
restrain, prohibit or impose adverse conditions on the ability of the
Lenders to make the Interim Loan, (b) in the sole judgment of the Lead
Arranger and Required Lenders could be expected to result in a Material
Adverse Change with respect to Borrower and its subsidiaries taken as a
whole (and before and after giving effect to the Transactions), (c) could
purport to affect the legality, validity or enforceability of any Interim
Loan Document or any documents relating thereto or
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could have a material adverse effect on the ability of any Credit Party to
fully and timely perform their obligations under the Interim Loan Documents
or the rights and remedies of the Lenders, (d) would be materially
inconsistent with the stated assumptions underlying the projections provided
to the Lead Arranger and the Lenders, or (e) seeks any material damages as a
result thereof.
(x) Target Financial Statements. The Lenders shall have received
unaudited interim financial statements relating to Mobeo for each fiscal
month and quarterly period ended subsequent to June 30, 1999 as to which
such financial statements are available, and such financial statements shall
not, in the sole judgment of the Lenders, reflect any Material Adverse
Change with respect to Mobeo as compared with the financial statements or
projections previously furnished to the Lenders.
(xi) Approvals. All requisite material Governmental Authorities and
material third parties (including all state and federal utility company
regulators and Governmental Authorities) have approved or consented to the
transactions contemplated hereby to the extent required (without the
imposition of any burdensome or materially adverse conditions or
requirements), all such approvals are in full force and effect, and there
shall be no Proceeding, actual or threatened, that has or could have a
reasonable likelihood of restraining, preventing or imposing burdensome
conditions on any of the transactions contemplated hereby. Lead Arranger
shall have received copies (certified by Borrower as true and correct) of
any such approvals or consents so obtained.
(xii) Payment of Fees and Expenses. All accrued and unpaid fees and
expenses (including the fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and of
local counsel to Lead Arranger) of the Lenders and Lead Arranger in
connection with the Credit Documents and the transactions contemplated
thereby shall have been paid.
(xiii) No Legal Bar. No Law shall be applicable in the judgment of Lead
Arranger that restrains, prevents or imposes material adverse conditions
upon any component of the transactions contemplated by the Credit Documents
or the financing thereof, including the Term Facility.
(xiv) Consents. Any consents or waivers necessary under any existing
agreement of any Company that would delay, prevent or impair the prompt
refinancing of the Term Facility (including the applications contemplated
herein to the Term Facility of the Net Available Proceeds of Dispositions,
Equity Issuances and Debt Issuances) shall be in full force and effect
pursuant to documentation and on terms and conditions satisfactory to Lead
Arranger.
(xv) Year 2000 Information. Lead Arranger shall have received any
information in addition to that publicly disclosed by Borrower that it may
reasonably request addressing the business and financial risks facing the
Companies as a result of what is commonly referred to as the "Year 2000
problem", including risks resulting from the failure of key vendors and
customers of the Companies to successfully address the Year 2000 problem,
and such addi-
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tional information shall not be adverse in any material respects from that
which was publicly disclosed.
(xvi) Filings and Lien Searches. The Obligors shall have authorized,
executed and delivered each of the following:
(1) UCC Financing Statements (Form UCC-1) in appropriate form
for filing under the UCC and any other applicable law, rule or regulation
in each jurisdiction as may be necessary or appropriate to perfect the
Liens created, or purported to be created, by the Security Agreement;
(2) certified copies of Requests for Information (Form UCC-11),
tax lien, judgment lien and pending lawsuit searches or equivalent
reports or lien search reports, each of a recent date listing all
effective financing statements, lien notices or comparable documents that
name any Obligor as debtor and that are filed in those state, county and
other jurisdictions in which any of the Collateral of such Obligor is
located, the state, county and other jurisdictions in which each such
Person's principal place of business is located and the state in which
such Person is organized, none of which encumber the Collateral covered
or intended to be covered by the Security Agreement other than those
encumbrances which constitute Prior Liens and other Liens expressly
permitted by the terms of the Security Agreement; and
(3) evidence of arrangements for (A) the completion of all
recordings and filings of, or with respect to, the Security Agreement,
and (B) the taking of all actions as may be necessary or, in the opinion
of Lead Arranger, desirable, to perfect the Liens created, or purported
to be created, by the Security Agreement.
7.02. Conditions to Initial and Subsequent Term Loans. The obligation of
the Lenders to make any Term Loan to Borrower upon the occasion of each
borrowing hereunder (including the initial borrowing) is subject to the further
conditions precedent that:
(i) No Default or Event of Default; Representations and Warranties
True. Both immediately prior to the making of such Term Loan and also after
giving pro forma effect thereto and to the intended use thereof:
(a) no Default or Event of Default shall have occurred and be
continuing; and
(b) the representations and warranties made by the Obligors in
Section 8, and by each Obligor in each of the other Credit Documents to
which it is a party, shall continue to be accurate in all respects on and
as of the date of the making of such Term Loan with the same force and
effect as if made on and as of such date (except that any representation
or warranty which is expressly made as of a specific date need only be
accurate on the date of the making of such Term Loan as of such specific
date).
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(ii) No Legal Bar. The Term Loans and the use of proceeds thereof shall
not contravene, violate or conflict with, nor involve any Lender in a
violation of, any law, rule, injunction, or regulation or determination of
any court of law or other Governmental Authority.
(iii) Notice of Borrowing. Administrative Agent shall have received a
Notice of Borrowing duly completed and complying with Section 4.05.
Each Notice of Borrowing delivered by Borrower hereunder shall constitute
a certification by Borrower to the effect set forth in clauses (i)-(ii) above as
of the date of such borrowing or issuance. Each notice submitted by Borrower
hereunder for an extension of credit hereunder shall constitute a representation
and warranty by Borrower, as of the date of such notice and as of the relevant
borrowing date, as applicable, that the applicable conditions in Sections 7.02
and 7.03 have been satisfied or waived in accordance with the terms hereof.
7.03. Determinations Under Section 7. For purposes of determining
compliance with the conditions specified in Sections 7.01 and 7.02, each Lender
shall be deemed to have consented to, approved or accepted or to be satisfied
with each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to the Lenders unless an officer of
Administrative Agent responsible for the transactions contemplated by this
Agreement shall have received notice from such Lender prior to the date that
Borrower, by notice to the Lenders, designates as the proposed date of the
extension of credit, specifying its objection thereto.
Section 8. Representations and Warranties. Each Obligor represents and
warrants to the Creditors that at and as of the Closing Date and at and as of
each Funding Date (in each case immediately before and immediately after giving
effect to the transactions to occur on such date):
8.01. Corporate Existence; Compliance with Law. Each Company: (a) is a
corporation, partnership, limited liability company or other entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (b) has all requisite corporate or other power
and authority, and has all governmental licenses, authorizations, consents and
approvals necessary to own its Property and carry on its business as now being
conducted; (c) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary; and (d) is in compliance with all Requirements of Law
and, in the case of clauses (a), (b), (c) and (d) where the failure thereof
individually or in the aggregate could have a Material Adverse Effect.
8.02. Financial Condition; Etc. (A) Borrower has delivered to the Lenders
(1) the audited consolidated balance sheets of Borrower as of December 31, 1996,
December 31, 1997 and December 31, 1998, and the related statements of earnings,
changes in stockholders' equity and cash flows for the fiscal years ended on
those dates, together with reports thereon by KPMG LLP, certified public
accountants and (2) unaudited consolidated balance sheet of Borrower as of June
30, 1998 and June 30, 1999 and the related statements of earnings, changes in
stockholders' equity and cash flows for the fiscal quarters ended on such dates.
All of said financial statements, including in each case the related schedules
and notes, are true, complete and correct and have been prepared in accordance
with
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GAAP consistently applied and present fairly the financial position of Borrower
as of the respective dates of said balance sheets and the results of their
operations for the respective periods covered thereby, subject (in the case of
interim statements) to period-end audit adjustments.
(B) Except as set forth in Schedule 8.02(B) or in the financial
statements or other information referred to in Section 8.02(A), as of the
Closing Date there are no material liabilities of any Company of any kind
required to be set forth on a balance sheet or in the notes thereto prepared in
accordance with GAAP, whether accrued, contingent, absolute, determined,
determinable or otherwise, and there is no existing condition, situation or set
of circumstances which is reasonably likely to result in such a liability.
(C) Since December 31, 1998 there has been no Material Adverse Change.
8.03. Litigation. Except in Schedule 8.03, there is no Proceeding pending
against, or to the knowledge of any Obligor threatened in writing against or
affecting, any Company or any of its respective Properties before any
Governmental Authority that has a reasonable likelihood of being adversely
determined and that, if determined or resolved adversely to such Company in
accordance with the plaintiff's demands, could have a Material Adverse Effect.
8.04. No Breach; No Default. (A) None of the execution, delivery and
performance by any Obligor of any Credit Document to which it is a party nor the
consummation of the transactions herein and therein contemplated will (i)
conflict with or result in a breach of, or require any consent (which has not
been obtained and is in full force and effect) under, any Organic Document of
any Company or any Requirement of Law or any order, writ, injunction or decree
of any Governmental Authority binding on any Company, or any term or provision
of any Contractual Obligation of any Company or (ii) constitute (with due notice
or lapse of time or both) a default under any such Contractual Obligation, or
(iii) result in the creation or imposition of any Lien (except for the Liens
created pursuant to the Security Agreement) upon any Property of any Company
pursuant to the terms of any such Contractual Obligation, except with respect to
each of the foregoing which would not have a Material Adverse Effect and which
would not subject any Creditor to any material risk of damages or liability to
third parties.
(B) No Company is in default under or with respect to any Contractual
Obligation or any order, award or decree of any Governmental Authority or
arbitrator binding upon it or any of its Property in any respect which could
have a Material Adverse Effect.
(C) No Default or Event of Default has occurred and is continuing.
8.05. Action. Each Obligor has all necessary corporate power, authority
and legal right to execute, deliver and perform its obligations under each
Credit Document to which it is a party and to consummate the transactions herein
and therein contemplated; the execution, delivery and performance by each
Obligor of each Credit Document to which it is a party and the consummation of
the transactions herein and therein contemplated have been duly authorized by
all necessary corporate action on its part; and this Agreement has been duly and
validly executed and delivered by each Obligor and constitutes, and each of the
other Credit Documents to which it is a party when executed and
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delivered by such Obligor (in the case of the Term Notes, for value) will
constitute, its legal, valid and binding obligation, enforceable against each
Obligor in accordance with its terms, except as such enforceability may be
limited by (a) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws of general applicability from time to time in effect
affecting the enforcement of creditors' rights and remedies and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
8.06. Approvals. No authorizations, approvals or consents of, and no
filings or registrations with, any Governmental Authority or any securities
exchange are necessary for the execution, delivery or performance by any Obligor
of the Credit Documents to which it is a party or for the legality, validity or
enforceability hereof or thereof or for the consummation of the transactions
herein and therein contemplated, except for filings and recordings in respect of
the Liens created pursuant to the Security Agreement and except for consents,
authorizations and filings that have been obtained or made and are in full force
and effect or the failure of which to obtain would not have a Material Adverse
Effect.
8.07. ERISA. No ERISA Event has occurred or is reasonably expected to
occur. The present value of all accumulated benefit obligations of all
underfunded Pension Plans (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed by more
than $1.0 million the fair market value of the assets of all such underfunded
Pension Plans. Each ERISA Entity is in compliance in all material respects with
the presently applicable provisions of ERISA and the Code with respect to each
Employee Benefit Plan. Using actuarial assumptions and computation methods
consistent with subpart 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of each ERISA Entity to all Multiemployer Plans in the event of a
complete withdrawal therefrom, as of the close of the most recent fiscal year of
each such Multiemployer Plan, would not result in a Material Adverse Effect. No
Company maintains or contributes to any Foreign Plan.
8.08. Taxes. Except as would not have a Material Adverse Effect, (i) all
tax returns, statements, reports and forms (including estimated Tax or
information returns) (collectively, the "Tax Returns") required to be filed with
any taxing authority by, or with respect to, each Company have been filed in
accordance with all applicable laws; (ii) each Company has timely paid or made
provision for payment of all Taxes shown as due and payable on Tax Returns that
have been so filed, and, as of the time of filing, each Tax Return correctly
reflected the facts regarding income, business, assets, operations, activities
and the status of each Company (other than Taxes which are being contested in
good faith and for which adequate reserves are reflected on the financial
statements delivered hereunder) and (iii) each Company has made provision for
all Taxes payable by such Company for which no Tax Return has yet been filed.
Except as set forth on Schedule 8.08, (i) no extension of a statute of
limitations relating to material Taxes is in effect with respect to any Company;
(ii) no Company has ever been a member of an affiliated group of corporations
within the meaning of Section 1504 of the Code other than an affiliated group of
corporations of which Borrower was the common parent; and (iii) there are
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no material tax sharing agreements or similar arrangements (including tax
indemnity arrangements) with respect to or involving any Company.
8.09. Investment Company Act; Other Restrictions. No Company is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the United States Investment Company Act of 1940, as
amended. Borrower and each Subsidiary is exempt from all provisions of the
Public Utility Holding Company Act of 1935 and rules and regulations thereunder,
except for Sections 9(a)(2) and 33 of such Act and the rules and regulations
thereunder, and the execution, delivery and performance by the Obligors of this
Agreement and the other Credit Documents and their respective obligations
hereunder and thereunder do not violate any provision of such Act or any rule or
regulation thereunder. No Obligor is subject to regulation under any law or
regulation which limits its ability to incur Indebtedness, other than Regulation
X.
8.10. Environmental Matters. Except as disclosed in Schedule 8.10 and
except as would not, individually or in the aggregate, result in a Material
Adverse Effect: (i) each Company is in compliance with, and is not subject to
liability under, any applicable Environmental Laws and there are no
Environmental Laws which could result in material expenditures by any Company,
and no such Environmental Laws would interfere in any material way with current
or projected operations of any Company; (ii) no Company, or to the knowledge of
the Obligors, any of its predecessors in interest, has disposed of, arranged for
the disposal or treatment of, or otherwise released Hazardous Materials at any
site at which any Person is conducting or plans to conduct any action under
Environmental Law; (iii) no Real Property now or formerly owned, leased or
operated by any Company or, to the knowledge of the Obligors, any of their
respective predecessors in interest is (x) listed or proposed for listing on the
National Priorities List under the United States Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA") or (y)
listed on the Comprehensive Environmental Response, Compensation and Liability
Information System List promulgated pursuant to CERCLA or (z) included on any
similar lists maintained by any Governmental Authority; (iv) there are no past
or present events, conditions, activities, practices or actions, or any
agreements, judgments, decrees or orders by which any Company is bound, which
would prevent any Company's compliance with any Environmental Law, or which
would give rise to any liability of any Company under any Environmental Law; (v)
no Lien has been asserted or recorded, or to the knowledge of the Obligors,
threatened, under any Environmental Law with respect to Property of any Company;
and (vi) no Company is subject to any Proceeding alleging the violation of, or
liability under, any Environmental Law or has received any Environmental Claim
and, to the knowledge of the Obligors, no such Proceeding or Environmental Claim
is threatened.
8.11. Environmental Investigations. As of the Closing Date, all material
environmental investigations, studies, audits or assessments in the possession,
custody or control of any Company relating (i) to the current or prior business
or operations of any Company or any of their respective predecessors in interest
or (ii) to any Property now or previously owned, operated, leased or used by any
Company or any of their respective predecessors in interest have been made
available to Agents and the Lenders.
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8.12. Use of Proceeds. No Company is engaged principally, or as one of
its important activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying Margin Stock
and no part of the proceeds of any extension of credit hereunder will be used
directly or indirectly and whether immediately, incidentally or ultimately to
purchase or carry any Margin Stock or to extend credit to others for such
purpose or to refund Indebtedness originally incurred for such purpose.
Following application of the proceeds of each extension of credit hereunder, not
more than 25 percent of the value of the assets (either of Borrower individually
or of Consolidated Companies) will be Margin Stock. If requested by any
Creditor, Borrower will furnish to Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
U-1 referred to in Regulation U. Borrower will use the proceeds of all Term
Loans solely to effect the Mobeo Acquisition, fees and expenses relating to the
Mobeo Acquisition and the Credit Documents, to exercise the OpenSky Warrant and
for working capital purposes.
8.13. Subsidiaries, Etc. As of the Closing Date, Borrower has no
Subsidiaries or interests (whether direct or indirect) in partnerships, Minority
Interests or business trusts other than the entities set forth on Schedule 8.13.
Borrower owns, as of the Closing Date, the percentage of the issued and
outstanding Equity Interests or other evidences of the ownership of each of its
Subsidiaries, partnerships or Minority Interests listed on Schedule 8.13 as set
forth on such Schedule.
8.14. Ownership of Property; Liens. Each Company has good record and
marketable title in fee simple to, or a valid leasehold interest in, all its
Real Property, and good title to, or a valid leasehold interest in, all its
other Property, and none of such Property interest is subject to any Lien,
except for Liens permitted by Section 9.07.
8.15. Security Interest; Absence of Financing Statements; Etc. The
Security Agreement, once executed and delivered, will create, in favor of
Administrative Agent for the benefit of the Creditors, as security for the
obligations purported to be secured thereby, a valid and enforceable and
perfected first priority security interest in and Lien upon all of the
Collateral (and the proceeds thereof), superior to and prior to the rights of
all third persons other than the holders of Prior Liens and subject to no other
Liens except as expressly permitted by the Security Agreement. There is no
currently effective financing statement, security agreement or other document
filed or recorded with any filing records, registry, or other public office,
that purports to cover, affect or give notice of any Lien on, or security
interest in, any Collateral.
8.16. Licenses and Permits. Each Company holds all governmental permits,
licenses, authorizations, consents and approvals necessary for it to own, lease,
and operate its Properties and to operate its businesses as now being conducted
(collectively, the "Permits"), except for Permits the failure of which to obtain
would not have a Material Adverse Effect. None of the Permits has been modified
in any way that is reasonably likely to have a Material Adverse Effect. All
Permits are in full force and effect except where the failure to be in full
force and effect would not have a Material Adverse Effect.
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8.17. True and Complete Disclosure; Exchange Act Filings. The
information, reports, financial statements, exhibits and schedules furnished in
writing by or on behalf of any Obligor to any Creditor in connection with the
negotiation, preparation or delivery of the Credit Documents or included herein
or therein or delivered pursuant hereto or thereto, but in each case excluding
all projections, whether prior to or after the date of this Agreement, when
taken as a whole, do not, as of the date such information was furnished, contain
any untrue statement of material fact or omit to state a material fact necessary
in order to make the statements herein or therein, in light of the circumstances
under which they were made, not materially misleading. The projections and pro
forma financial information furnished at any time by any Obligor to any Creditor
pursuant to this Agreement have been prepared in good faith based on assumptions
believed by Borrower to be reasonable at the time made, it being recognized by
the Lenders that such financial information as it relates to future events is
not to be viewed as fact and that actual results during the period or periods
covered by such financial information may differ from the projected results set
forth therein by a material amount and no Obligor, however, makes any
representation as to the ability of any Company to achieve the results set forth
in any such projections. Each Obligor understands that all such statements,
representations and warranties shall be deemed to have been relied upon by the
Lenders as a material inducement to make each extension of credit hereunder.
8.18. Solvency. As of each Funding Date immediately prior to and
immediately following the extensions of credit to occur on such date each
Obligor is and will be Solvent (after giving effect to Section 6.08).
8.19. Contracts. No Company is in default under any material contract or
agreement to which it is a party or by which it is bound, nor, to Borrower's
knowledge, does any condition exist that, with notice or lapse of time or both,
would constitute such default, excluding in any case such defaults that would
not have a Material Adverse Effect.
8.20. Labor Matters. Except as set forth in Schedule 8.20, there is (i)
no unfair labor practice complaint pending against any Company or, to the
knowledge of Borrower, threatened against any Company, before the National Labor
Relations Board or any other Governmental Authority, and no grievance or
arbitration proceeding arising out of or under any collective bargaining
agreement is so pending against any Company or, to the knowledge of Borrower,
threatened against any Company, (ii) no strike, labor dispute, slowdown or
stoppage pending against any Company or, to the knowledge of Borrower,
threatened against any Company and (iii) to the knowledge of Borrower, no union
representation question existing with respect to the employees of any Company
and, to the knowledge of Borrower, no union organizing activities are taking
place, except such as would not, with respect to any matter specified in clause
(i), (ii) or (iii) above, individually or in the aggregate, have a Material
Adverse Effect.
8.21. Subordinated Debt. The Obligations are senior debt with respect to
all Subordinated Debt of each Obligor and entitled to the full benefits of all
subordination provisions therein and such subordination provisions are in full
force and effect.
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8.22. Year 2000. Each Company has reviewed their operations with a view
to assessing whether their business or operations will, in the receipt,
transmissions, processing, manipulation, storage, retrieval, retransmission or
other utilization of data, be vulnerable to any significant risk that computer
hardware, software or any equipment containing embedded microchips used in their
business or operations will not in the case of dates or time periods occurring
after December 31, 1999 function at least as effectively as in the case of dates
or time periods occurring prior to January 1, 2000. In addition each Company has
undertaken to obtain assurances from their respective third party billing
providers and their respective principal sources of equipment that they are
addressing the potential problems of the Year 2000. No Company has reason to
believe that the risks associated with the Year 2000 issue would have a Material
Adverse Effect.
8.23. Intellectual Property. To the knowledge of Borrower, each Company
owns or possesses adequate licenses or otherwise has the right to use all of the
patents, patent applications, trademarks, trademark applications, service marks,
service ▇▇▇▇ applications, trade names, copyrights, trade secrets, know-how and
processes (collectively, "Intellectual Property") that are necessary for the
operation of its business as presently conducted, except where the failure to so
own or possess such Intellectual Property would not, individually or in the
aggregate, have a Material Adverse Effect. Except as set forth on Schedule 8.23,
to the knowledge of Borrower, no claim is pending that any Company infringes
upon the asserted rights of any other Person under any Intellectual Property,
except for any such claim that would not, individually or in the aggregate, have
a Material Adverse Effect. Except as set forth on Schedule 8.23, to the
knowledge of Borrower, no claim is pending that any such Intellectual Property
owned or licensed by any Company or which any Company otherwise has the right to
use is invalid or unenforceable, except for any such claim which would not,
individually or in the aggregate, have a Material Adverse Effect.
Except as set forth in Schedule 8.23, each Company owns or has the right
to use all Intellectual Property and the consummation of the transactions
contemplated hereby will not, alter or impair any such rights in a way that
would, individually or in the aggregate, have a Material Adverse Effect. Subject
to the rights of third parties set forth in Schedule 8.24, all Intellectual
Property owned by any Company is free and clear of all Liens except such as
would not, individually or in the aggregate, have a Material Adverse Effect with
respects to Hazardous Materials or Environmental Laws.
8.24. Existing Indebtedness. Schedule 8.24 sets forth a true and complete
list of all Indebtedness of the Companies as of the Closing Date that is to
remain outstanding after the Closing Date (excluding the Obligations hereunder),
in each case showing the aggregate principal amount thereof and the name of each
respective borrower and any other entity that directly or indirectly guaranteed
such Indebtedness.
Section 9. Covenants. Each Obligor, for itself and on behalf of its
Subsidiaries, covenants and agrees with the Creditors that, so long as any Term
Loan Commitment or Term Loan is outstanding and until payment in full of all
amounts payable by Borrower hereunder (and each Obligor covenants and agrees
that it will cause its Subsidiaries to observe and perform the covenants herein
set forth applicable to any such Subsidiary):
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9.01. Financial Statements, Etc. The Companies shall deliver to
Administrative Agent and each of the Lenders:
(a) Quarterly Financials. As soon as available and in any event within 45
days after the end of each of the first three quarterly fiscal periods of
each fiscal year beginning with the fiscal quarter ending March 31, 2000,
consolidated statements of operations, cash flows and stockholders' equity
of Consolidated Companies for such period and for the period from the
beginning of the respective fiscal year to the end of such period, and the
related consolidated balance sheet of Consolidated Companies as at the end
of such period, setting forth in each case in comparative form (i) the
corresponding consolidated statements of operations, cash flows and
stockholders' equity for the corresponding period in the preceding fiscal
year to the extent such financial statements are available and (ii) the
corresponding budget or plan for such period, accompanied by a certificate
of a Responsible Officer of Borrower, which certificate shall state that
said consolidated financial statements fairly present the consolidated
financial condition, results of operations and cash flows of Consolidated
Companies in accordance with GAAP, consistently applied, as at the end of,
and for, such period (subject to normal year-end audit adjustments);
(b) Annual Financials. As soon as available and in any event within 90
days after the end of each fiscal year beginning with the fiscal year ending
December 31, 1999, consolidated and consolidating statements of operations,
cash flows and stockholders' equity of Consolidated Companies for such year
and the related consolidated and consolidating balance sheet of Consolidated
Companies as at the end of such year, setting forth in each case in
comparative form (i) the corresponding consolidated and consolidating
information as of the end of and for the preceding fiscal year to the extent
such financial statements are available and (ii) the corresponding budget or
plan for such period, and accompanied by an opinion, without a going concern
or similar qualification or exception as to scope, thereon of KPMG LLP or
other independent certified public accountants of recognized national
standing reasonably acceptable to Lead Arranger and the Majority Lenders,
which opinion shall state that said consolidated and consolidating financial
statements fairly present the consolidated and consolidating financial
condition, results of operations and cash flows of Consolidated Companies as
at the end of, and for, such fiscal year in accordance with GAAP,
consistently applied; Borrower shall supply such additional information and
detail as to any item or items contained on any such statement that Lenders
may reasonably require; all such information will be prepared in accordance
with GAAP consistently applied;
(c) Auditor's Certificate; Compliance Certificate.
(i) concurrently with the delivery of the financial statements
referred to in Section 9.01(b), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Event of Default relating to the Financial
Maintenance Covenants, except as specified in such certificate; and
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(ii) at the time it furnishes each set of financial statements
pursuant to paragraph (a) or (b) above, (1) a certificate of a senior
financial officer of Borrower (I) to the effect that no Default has
occurred and is continuing (or, if any Default has occurred and is
continuing, describing the same in reasonable detail and describing the
action that the Companies have taken and proposes to take with respect
thereto) and (II) setting forth in reasonable detail the computations
necessary to determine whether each Company is in compliance with the
Financial Maintenance Covenants applicable to it as of the end of the
respective quarterly fiscal period or fiscal year, and (2) any final
accountants' management letters delivered by the independent certified
public accountants reporting on such financial statements to any
Company;
(d) Other Financial Information. Promptly upon delivery thereof to the
holders of any debt securities or the stockholders of any Company generally,
copies of all financial statements and reports and proxy statements so
delivered, and at the time the same are filed, copies of all financial
statements and reports which Borrower may make to or file with the
Commission or any successor or analogous Governmental Authority;
(e) Notice of Default. Promptly after any Company knows or has reason to
believe that any Default has occurred or that any Company is in default of
any material term or provision of any agreement or instrument relating to or
evidencing material Indebtedness, a notice of such Default describing the
same in reasonable detail and, together with such notice or as soon
thereafter as possible, a description of the action that the Companies have
taken and propose to take with respect thereto;
(f) Environmental Matters. Written notice of any Environmental Claim
materially affecting any Company or the operations of any Company and any
notice from any Person of (i) the occurrence of any release, spill or
discharge of any Hazardous Material that is reportable under any
Environmental Law, (ii) the commencement of any clean-up pursuant to or in
accordance with any Environmental Law of any Hazardous Material at, on,
under or within any Real Property or any part thereof owned or leased by any
Company, (iii) any matters relating to Hazardous Materials or Environmental
Laws that may impair, or threaten to impair, any Obligor's ability to
perform any of its obligations under this Agreement when such performance is
due or (iv) any other condition, circumstance, occurrence or event which
could have a Material Adverse Effect with respect to Environmental Law or
Hazardous Materials;
(g) Auditors' Reports. Promptly upon receipt thereof, copies of all
annual, interim or special reports submitted to any Company by independent
certified public accountants in connection with each annual, interim or
special audit of such Company's books made by such accountants, including,
without limitation, any management letter commenting on any Company's
internal controls submitted by such accountants to management in connection
with their annual audit;
(h) Annual Budgets. As soon as practicable and in any event within 60
days after the beginning of each fiscal year of Borrower beginning with the
fiscal year ending December 31,
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1999, a consolidated plan and financial forecast for such fiscal year,
including a forecasted consolidated balance sheet and forecasted
consolidated statements of income and cash flows of the Companies for such
fiscal year and for each quarter of such fiscal year, together with an
Officers' Certificate demonstrating pro forma compliance for such fiscal
year with Section 9.11 and an explanation of the assumptions on which such
forecasts are based and stating that such plan and projections have been
prepared using assumptions believed in good faith by management of Borrower
to be reasonable at the time made;
(i) Notice of Material Adverse Effect. Written notice of the occurrence
of any Material Adverse Effect;
(j) Governmental Filings and Notices. Promptly upon request by
Administrative Agent, copies of any other material reports or documents that
were filed by any Company with any Governmental Authority relating to the
acquisition or maintenance of a material license and copies of any and all
material notices and other material communications from any federal, state
or local Governmental Authority with respect to any Company;
(k) ERISA Information. Promptly upon the occurrence of any ERISA Event
that, alone or together with any other ERISA Events that have occurred,
could result in liability to any Company in an aggregate amount exceeding
$100,000, a written notice specifying the nature thereof, what action each
ERISA Entity has taken, is taking or proposes to take with respect thereto,
and, when known, any action taken or threatened by the Internal Revenue
Service, Department of Labor, PBGC or Multiemployer Plan sponsor with
respect thereto;
(l) ERISA Filings, Etc. Upon request by Administrative Agent, copies of:
(i) each Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by any Company or ERISA Entity with the Internal Revenue
Service with respect to each Pension Plan; (ii) the most recent actuarial
valuation report for each Plan; (iii) all notices received by any ERISA
Entity from a Multiemployer Plan sponsor or any governmental agency
concerning an ERISA Event; and (iv) such other documents or governmental
reports or filings relating to any Employee Benefit Plan as Administrative
Agent shall reasonably request;
(m) Lien Matters; Matters Adverse to Collateral. Prompt written notice of
the incurrence of any Lien not expressly permitted by the Security Agreement
on, or claim asserted against any of the Collateral;
(n) Name and Location Changes. Promptly, written notice of any change (i)
in any Obligors' corporate name or in any trade name used to identify it in
the conduct of its business or in the ownership of its properties, (ii) in
the location of such Obligor's chief executive office, its principal place
of business or any office in which it maintains books or records relating to
Collateral, (iii) in such Company's identity or corporate structure or (iv)
in such Obligor's Federal Taxpayer Identification Number (to the extent
applicable). No Obligor will effect or permit any change referred to in the
preceding sentence unless all filings have been made under the UCC or
otherwise that are required in order for Administrative Agent to con-
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tinue at all times following such change to have a valid, legal and
perfected security interests in all the Collateral; and
(o) Miscellaneous. Promptly, such financial and other information with
respect to Borrower or any Subsidiary as any Creditor may from time to time
reasonably request.
9.02. Litigation, Etc. Borrower shall promptly give to Administrative
Agent and each Lender notice of all Proceedings, and (except to the extent that
any such notice would, in the reasonable opinion of outside counsel to Borrower,
waive attorney client privilege) any material development thereof, affecting any
Company, except Proceedings which are not reasonably likely to have a Material
Adverse Effect.
9.03. Existence; Compliance with Law; Payment of Taxes; Inspection
Rights; Performance of Obligations; Etc. Each Company shall (i) preserve and
maintain its legal existence and all of its material rights, privileges and
franchises; provided, however, that nothing in this Section 9.03 shall prohibit
any transaction expressly permitted under Section 9.06; (ii) except as is not
reasonably likely to have a Material Adverse Effect, comply with the
requirements of all applicable laws, rules, regulations and orders of
Governmental Authorities; (iii) except as is not reasonably likely to have a
Material Adverse Effect, timely file true, accurate and complete tax returns
required by all Governmental Authorities and pay and discharge all Taxes,
assessments and governmental charges or levies imposed on it or on its income or
profits or on any of its Property prior to the date on which any material
penalties attach thereto (except for any such Tax, assessment, charge or levy
the payment of which is being contested in good faith and by proper proceedings
and against which adequate reserves are being maintained in accordance with
GAAP); (iv) maintain all of its Properties used or useful in its business in
good working order and condition, ordinary wear and tear excepted, except to the
extent that the failure to do so with respect to any such Property is not
reasonably likely to have a Material Adverse Effect; (v) permit representatives
of any Creditor during normal business hours and, except during the existence of
any Default, upon reasonable prior notice, to examine its books and records, to
inspect its Properties, and to discuss its business and affairs with its
officers and employees, all to the extent reasonably requested by such Creditor
with the understanding and agreement that all information obtained thereby shall
be subject to the confidentiality provisions of Section 12.11; (vi) upon
reasonable notice, allow, with the presence of Borrower if Borrower so elects to
participate, and subject to reasonable requirements of confidentiality,
including requirements imposed by law or by contract, Lead Arranger or any
representative chosen by the Majority Lenders to consult with Borrower's
independent public accountants and auditors with respect to the financial
affairs of the Companies and authorize such accountants to disclose to Lead
Arranger or any representative chosen by the Majority Lenders and the Lenders
(and Lead Arranger to the Creditors) any and all financial statements and other
supporting financial documents and schedules including copies of any management
letter with respect to the business, financial condition and other affairs of
the Companies with the understanding and agreement that all information obtained
thereby shall be subject to the confidentiality provisions of Section 12.11; at
the request of Lead Arranger or any representative chosen by the Majority
Lenders, Borrower shall deliver a letter addressed to such accountants
instructing them to comply with the provisions of this Section 9.03(vi); (vii)
perform in all material respects all of its Contractual Obligations, except
where such failure to so perform, singly or in the aggregate
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with all other such failures, would not have a Material Adverse Effect; and
(viii) keep proper books of record and accounts, in which full and correct
entries shall be made of all financial transactions and the Property and
business of each Company in accordance with GAAP in effect from time to time or
as otherwise required by applicable rules and regulations of any Governmental
Authority having jurisdiction over such Company.
9.04. Insurance. Each Company shall maintain, with financially sound and
reputable insurers, insurance of the kinds and in the amounts customarily
insured against by companies engaged in the same or similar business and
similarly situated (including business interruption insurance). Each Company
shall pay all insurance premiums payable by it as and when due.
9.05. Limitation on Lines of Business; Limitation on Activities of
Borrower. No Company shall directly or indirectly, engage to any material extent
in any line or lines of business activity other than the business of the type
conducted by the Companies as of the Closing Date and after giving effect to the
Mobeo Acquisition, or any wireless communications business or any business
similar, ancillary or related to any of the foregoing.
9.06. Limitation on Fundamental Changes, Acquisitions or Dispositions. No
Company shall, directly or indirectly, in a single transaction or series of
transactions, (1) merge, consolidate or amalgamate with or into any Person, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), (2) effect any Acquisition, or (3) effect any Disposition (or
agree to do any of the foregoing). Notwithstanding the foregoing provisions of
this Section 9.06, each of the following shall be permitted:
(a) purchases and sales of Property in the ordinary course of business;
(b) the granting of Permitted Liens;
(c) the merger of Aether Systems, Inc. with Borrower and the merger,
consolidation, dissolution or liquidation of (1) any Subsidiary with or into
(i) Borrower if Borrower shall be the continuing or surviving corporation or
(ii) any Qualified Subsidiary if a Qualified Subsidiary shall be the
continuing or surviving corporation, and (2) any Non-Qualified Subsidiary
with or into any other Non-Qualified Subsidiary;
(d) Dispositions by any Company to any Qualified Company or by any
Non-Qualified Subsidiary to any other Non-Qualified Subsidiary;
(e) Dispositions of used, worn out, obsolete or surplus Property by any
Company in the ordinary course of business and the abandonment or other
Disposition of Intellectual Property that is, in the reasonable judgment of
Borrower, no longer economically practicable to maintain or useful in the
conduct of the business of the Companies taken as a whole; provided,
however, that in each case the proceeds thereof shall be reinvested in the
business of a Company within 90 days of such Disposition or such Property
shall be replaced with that of greater or equal value;
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(f) the sale or discount without recourse of accounts receivable or notes
receivable arising in the ordinary course of business, or the conversion or
exchange of accounts receivable into or for notes receivable, in connection
with the compromise or collection thereof;
(g) any Company may effect any Disposition for fair market value
resulting in gross proceeds not to exceed $250,000 since the Closing Date
for the Companies in the aggregate; provided, however, that the Net
Available Proceeds therefrom shall be applied as specified in Section
2.10(a)(iv);
(h) Acquisitions by any Qualified Company; provided, however, that each
Acquisition under this Section 9.06(h) shall satisfy each of the following
conditions:
(i) no Default then exists or would result therefrom;
(ii) after giving pro forma effect in accordance with GAAP to
such Acquisition, (A) Borrower shall be in compliance with Section 9.11
as of the Test Date immediately prior to the consummation thereof
(assuming, for purposes of Section 9.11, that such Acquisition, and all
other Permitted Acquisitions consummated since the first day of the
relevant measurement period for each financial covenant set forth in
Section 9.11 ending on or prior to the date of such Acquisition, had
occurred on the first day of such relevant measurement period), and (B)
the Subsidiaries shall be in compliance with the covenants in the
agreements covering Indebtedness to which they are subject;
(iii) the board of directors of the acquired Person shall not
have indicated its opposition to the consummation of such Acquisition;
(iv) such Acquisition shall be effected through a Qualified
Company and the Person or business acquired shall at the time of
consummation of such Acquisition be merged or combined or consolidated
with or into a Qualified Company (so long as, with respect to Borrower,
Borrower is the surviving Company) or shall be or become at the time of
consummation thereof a Qualified Company ;
(v) Borrower shall have provided the Lenders not fewer than 15
days prior to the proposed closing thereof, with (1) written notice
thereof and a brief description of the material terms thereof and a brief
description of the business or Person to be acquired, (2) historical
financial statements for the last three fiscal years (or, if less, for
the period of such Person's existence) of the Person or business to be
acquired (audited if available without undue cost or delay) and unaudited
financial statements thereof for the most recent interim period which are
available, (3) copies of all available material documentation pertaining
to such Acquisition, (4) reasonably detailed projections pertaining to
the Person or business to be acquired through the Final Maturity Date
(assuming the extension thereof to the latest date permitted hereunder),
and (5) all such other available information and data relating to such
Ac-
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quisition or the Person or business to be acquired as may be reasonably
requested by Lead Arranger or the Majority Lenders;
(vi) Borrower shall have delivered to Lead Arranger and the
Lenders (x) an Officers' Certificate at least 10 days prior to the date
of consummation of such Acquisition (but in any event not earlier than a
date which would result in the Test Date occurring on or immediately
prior to the consummation of such Acquisition being more than 135 days
prior to the date of consummation of such Acquisition) certifying that
(1) such Acquisition complies with this Section 9.06(h) (which shall have
attached thereto reasonably detailed backup data and calculations showing
such compliance), and (2) such Acquisition is not reasonably likely to
have a Material Adverse Effect and (y) financial statements referred to
in clause (v) of this Section 9.06(h) for the most recently ended fiscal
period if the latest financial statements previously delivered pursuant
to clause (v) cover a period ending more than 135 days before the date of
consummation of such Acquisition; and
(vii) the Acquisition Consideration for such Acquisition shall
consist solely of Equity Interests of Borrower;
(i) the making of Investments permitted by Section 9.09 and the
liquidation in the ordinary course of business of (A) Cash Equivalents and
(B) Investments made pursuant to clause (a) of the definition of Permitted
Investments.
No Company shall effect the Disposition of any Equity Interests of any
Subsidiary unless all Equity Interests owned by the Companies are sold in
accordance with the Credit Documents.
Subject to Section 12.04, to the extent the Majority Lenders waive the
provisions of this Section 9.06 with respect to the sale or other disposition of
any Collateral, or any Collateral is sold or otherwise disposed of as permitted
by this Section 9.06 (other than to any Company), such Collateral in each case
shall be sold or otherwise disposed of free and clear of the Liens created by
the Security Agreement and Administrative Agent shall take such actions as are
appropriate in connection therewith.
9.07. Limitation on Liens. No Company shall, directly or indirectly,
create, incur, assume or suffer to exist any Lien upon or with respect to any of
their respective Property, whether now owned or hereafter acquired, except, with
respect to Collateral, for Liens expressly permitted by the Security Agreement
and, with respect to all other Property, except for the following, which are
herein collectively referred to as "Permitted Liens":
(a) Liens (including any Prior Liens) in existence on the Closing Date
and identified in Schedule 9.07;
(b) Permitted Customary Liens;
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(c) Liens upon Property acquired after the Closing Date by any Company,
which Liens either (A) existed on such Property before the time of its
acquisition and was not created in anticipation thereof, or (B) was created
solely for the purpose of securing Indebtedness representing, or incurred to
finance or refinance, the cost of such Property or improvements thereon;
provided, however, that (1) no such Lien shall extend to or cover any
Property of any Company other than the Property so acquired and improvements
thereon and proceeds thereof, and (2) the principal amount of Indebtedness
secured by any such Lien shall at no time exceed 100% of the fair market
value of such Property at the time it was acquired or constructed;
(d) Liens securing obligations in respect of Capital Leases solely on
Property (including improvements thereto and the proceeds thereof) subject
to such Capital Leases;
(e) any extension, renewal or replacement of the foregoing; provided,
however, that the Liens permitted by this Section 9.07(e) shall not cover
any additional principal amount of Indebtedness or Property (other than like
Property substituted for Property covered by such Lien); and
(f) Liens created under this Agreement.
9.08. Prohibition on Disqualified Capital Stock; Limitation on
Indebtedness and Contingent Obligations; Limitation on Designated Senior Debt.
(A) No Company shall directly or indirectly issue or permit to be outstanding
any Disqualified Capital Stock. No Company shall, directly or indirectly, incur
or suffer to exist any Indebtedness or any Contingent Obligation, except for the
following:
(a) the Term Loans and the other Obligations (including the Guarantees)
under the Credit Documents;
(b) Indebtedness and Contingent Obligations outstanding on the Closing
Date and listed in Schedule 8.24 and specified on Schedule 8.24 as to remain
outstanding after the Closing Date (less the aggregate amount of any
permanent prepayments or repayments thereof) and Permitted Refinancings
thereof;
(c) Indebtedness and Contingent Obligations of (A) any Company owing to
any Qualified Company; provided, however, that such Indebtedness and
Contingent Obligations shall not be held by any Person other than a
Qualified Company and shall not be subordinate to any other Indebtedness or
Contingent Obligations or other obligation of the obligor unless also
subordinated to the Obligations on terms no less favorable to the Lenders
than that of any other creditor and (B) any Non-Qualified Subsidiary owing
to any Company so long as such Indebtedness and Contingent Obligations are
not held by any Person other than a Company;
(d) Contingent Obligations of any Qualified Company in respect of
Indebtedness or other liabilities of any Qualified Company to the extent
that the existence of such Indebtedness or other liabilities is not
prohibited under this Agreement; and
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(e) Indebtedness and Contingent Obligations of the Companies (including
Permitted Refinancings thereof) secured by Liens permitted under Section
9.07(c) or (d) (and extensions, renewals or replacements thereof pursuant to
Section 9.07(e)) not exceeding (together with any Permitted Refinancing
thereof) $1.0 million in the aggregate at any time outstanding for the
Companies collectively.
All intercompany debt shall be unsecured and subordinate in right of
payment (to the same extent as the subordination provisions set forth in Exhibit
B hereto) to the Obligations. Each Obligor, by its execution and delivery of
this Agreement, hereby agrees to subordinate its right of payment under any
intercompany debt owed to it by any Company to the full and complete payment and
performance of the Obligations. No Obligor shall incur any Subordinated Debt
unless otherwise permitted by the foregoing exceptions listed as clauses (a)
through (f) above and unless such Subordinated Debt shall be subordinated to the
Obligations at least to the same extent and for so long as such Subordinated
Debt is subordinated to such other Indebtedness.
(B) No Company shall designate, or permit or suffer to exist the
designation of, any Indebtedness or other obligation, other than Indebtedness
under the Credit Documents, as "Designated Senior Indebtedness," as such term
may be defined in any Subordinated Debt, or effect or permit or suffer to exist
any comparable designation that confers upon the holders of such Indebtedness or
other obligation (or any Person acting on their behalf) the right to initiate
payment blockage periods under any Subordinated Debt.
9.09. Limitation on Investments; Limitation on Creation of Subsidiaries.
(A) No Company shall, directly or indirectly, make or permit to remain
outstanding any Investments, except for the following:
(a) Permitted Investments and Investments that were Permitted Investments
when made;
(b) Investments by any Company in any Qualified Company and Investments
by any Non-Qualified Subsidiary in any Company; (c) Investments outstanding
on the Closing Date and identified in Schedule 9.09 and any renewals,
amendments and replacements thereof that do not increase the amount thereof;
(d) additional Investments in any Non-Qualified Subsidiary to the extent
that such Investments reflect an increase in the stockholders' equity of
such Subsidiary resulting from retained earnings of such Subsidiary;
(e) any Company may hold the Equity Interests of any Subsidiary existing
on the Closing Date or created or acquired thereafter in accordance with the
provisions hereof and any additional Equity Interests issued in exchange
therefor or as a dividend thereon;
(f) Investments consisting of or made in order to consummate (A)
Permitted Acquisitions and (B) the Mobeo Acquisition.
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(g) Investments consisting of the securities received upon exercise of
the OpenSky Warrants.
(B) No Company shall, directly or indirectly, create or acquire any
Subsidiary without the prior written consent of the Majority Lenders; provided,
however, that the provisions of this Section 9.09(B) shall not require the
Majority Lenders' consent for the creation or acquisition of direct or indirect
Wholly Owned Subsidiaries.
9.10. Limitation on Dividend Payments. No Company shall, directly or
indirectly, declare or make any Dividend Payment at any time, except any
Subsidiary may declare and make Dividend Payments to Borrower or any Subsidiary
and to minority interest holders in such Subsidiary if made on a pro rata basis
to all holders of Equity Interests in such Subsidiary at the same time except
that no Qualified Subsidiary may make any Dividend Payment to any Non-Qualified
Subsidiary.
9.11. Financial Covenants. (a) Minimum Revenue. Revenue shall not, as of
any Test Date during any period set forth in the table below, be less than the
amount set forth opposite such period in the table below:
Period Revenue
------ -------
10/1/99-12/31/99 $1.737 million
1/1/00-3/31/00 $2.788 million
4/1/00-6/30/00 $4.444 million
7/1/00-9/30/00 $7.302 million
(b) Minimum Operating Cash Flow. Operating Cash Flow shall not, as any Test
Date during any period set forth in the table below, be less than the amount set
forth opposite such period in the table below:
Period Operating Cash Flow
------ -------------------
10/1/99-12/31/99 $(5.965) million
1/1/00-3/31/00 $(7.812) million
4/1/00-6/30/00 $(9.060) million
7/1/00-9/30/00 $(9.307) million
(c) Minimum Liquidity. The sum of cash and Cash Equivalents and Unutilized
Commitments shall not, as of any date, be less than the total amount of interest
payments required hereunder from such date through the Final Maturity Date,
based on the total Loans outstanding as of such date and assuming an interest
rate based on the highest Applicable Margin. Not later than the fifth Business
Day after the end of each month, Borrower shall deliver to the Administrative
Agent an Officer's Certificate detailing the amount of cash and Cash Equivalents
on hand as of the end of such month, together with calculations setting forth
compliance with this Section 9.11 (c).
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9.12. Pledge or Mortgage of Additional Collateral. Promptly, and in any
event within 30 days, after the acquisition of any Property of the type that
would have constituted Collateral at the Closing Date (including the Equity
Interests of any Subsidiary hereafter created or acquired) (the "Additional
Collateral") and after the creation or acquisition of any Subsidiary, each
Company shall take all action reasonably necessary or desirable (to the extent
permitted by applicable Contractual Obligations existing on the Closing Date),
if any, including the execution and delivery of all such agreements,
assignments, documents, registers and instruments (including amendments to the
Credit Documents) and the filing of appropriate financing statements or other
documents under the provisions of the UCC or applicable requirements of any
Governmental Authority in each of the offices where such filing is necessary or
appropriate, to grant (in the reasonable judgment of Administrative Agent or the
Majority Lenders) to Administrative Agent, for the benefit of the Creditors, a
duly perfected first priority Lien on such Property pursuant to appropriate
Security Documents.
9.13. Security Interests; Further Assurances. Each Company shall,
promptly, upon the reasonable request of Administrative Agent or any Lender, at
Borrower's expense, execute, acknowledge and deliver, or cause the execution,
acknowledgment and delivery of, and thereafter register, file or record, or
cause to be registered, filed or recorded, in an appropriate governmental
office, any document or instrument supplemental to or confirmatory of the
Security Agreement or otherwise deemed by Administrative Agent reasonably
necessary or desirable for the continued validity, perfection and priority of
the Liens on the Collateral covered thereby superior to and prior to the rights
of all third Persons other than the holders of Prior Liens and subject to no
other Liens except as permitted by the Security Agreement. Each Company shall
deliver or cause to be delivered to Administrative Agent from time to time such
other documentation, consents, authorizations, approvals and orders in form and
substance reasonably satisfactory to Administrative Agent as Administrative
Agent shall reasonably deem necessary to perfect or maintain the Liens on the
Collateral pursuant to the Security Agreement. Upon the exercise by
Administrative Agent or the Lenders of any power, right, privilege or remedy
pursuant to any Credit Document which requires any consent, approval,
registration, qualification or authorization of any Governmental Authority, each
Company shall execute and deliver all applications, certifications, instruments
and other documents and papers that Administrative Agent or the Lenders may be
so required to obtain.
9.14. Compliance with Environmental Laws. Each Company shall (a) comply
with all Environmental Laws, and will keep or cause all Real Property to be kept
free of any Liens under Environmental Laws, unless failure to do so would not
have a Material Adverse Effect; (b) in the event of any Hazardous Material at,
on, under or emanating from any Real Property which could result in liability
under or a violation of any Environmental Law, in each case which could have a
Material Adverse Effect, undertake, and/or cause any of their respective tenants
or occupants to undertake, at their sole expense, any action required pursuant
to Environmental Laws to mitigate and eliminate such condition; provided,
however, that no Company shall be required to comply with any order or directive
which is being contested in good faith and by proper proceedings so long as it
has maintained adequate reserves with respect to such compliance to the extent
required in accordance with GAAP; and (c) promptly notify Administrative Agent
of any event specified in clause (b) of this Section 9.14 and periodically
thereafter keep Administrative Agent informed of any material actions taken in
response to such event and the results thereof.
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9.15. Limitation on Transactions with Affiliates. No Company shall,
directly or indirectly: enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or exchange of any
Property, the rendering of any service, or a merger, Acquisition or other
consolidation), with or for the benefit of any Affiliate (an "Affiliate
Transaction") unless such Affiliate Transaction is (i) otherwise not prohibited
under this Agreement and (ii) on fair and reasonable terms that are not less
favorable to such Company than those that are reasonably obtainable at the time
in an arm's-length transaction with a Person that is not such an Affiliate;
provided, however, that the following shall be permitted: (a) fees and
compensation paid to, and customary indemnity and reimbursement provided on
behalf of, officers, directors and employees of any Company in the ordinary
course of business; (b) the transactions and agreements in existence on the
Closing Date and listed in Schedule 9.15 (as such agreements are in effect on
the Closing Date, the "Existing Affiliate Agreements") and any amendment thereto
that is not disadvantageous to the Lenders in any material respect; and (c) any
employment agreements entered into by any Company in the ordinary course of
business.
9.16. Limitation on Accounting Changes; Limitation on Investment Company
Status. Borrower shall not make or permit any change in (i) accounting policies
or reporting practices, except immaterial changes and except as required by
generally accepted accounting principles or (ii) its fiscal year end (December
31 of each year); provided that the Company consolidate its financial statements
with all Subsidiaries which are Guarantors. No Company shall be or become an
investment company subject to the registration requirements under the United
States Investment Company Act of 1940, as amended.
9.17. Limitation on Activities of Aether Systems, Inc. Prior to the
merger with and into Borrower, Aether Systems, Inc. shall not engage in any
activities other than incident to maintaining its corporate existence and
compliance with Laws applicable to it.
9.18. Limitation on Certain Restrictions Affecting Subsidiaries. No
Company shall, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any direct or indirect encumbrance or restriction on
the ability of any Subsidiary to (a) pay dividends or make any other
distributions on such Subsidiary's Equity Interests or any other interest or
participation in its profits owned by any Company, or pay any Indebtedness or
any other obligation owed to any Company, (b) make Investments in or to any
Company, or (c) transfer any of its Property to any Company, except (i) any such
encumbrances or restrictions existing under or by reason of (x) applicable Law,
(y) the Credit Documents or (z) Indebtedness set forth on Schedule 8.24 and any
Permitted Refinancing of any thereof so long as such restriction in such
Permitted Refinancing is not more disadvantageous to the Creditors or Borrower
than the Indebtedness being refinanced, (ii) restrictions on the transfer of
Property subject to a Lien permitted under Section 9.07, (iii) customary
restrictions on subletting or assignment of any lease governing a leasehold
interest of any Company, (iv) restrictions on the transfer of any Property
subject to a Disposition permitted under this Agreement, and (v) existing on the
Closing Date and described on Schedule 9.19.
9.19. Limitation on Payments or Prepayments of Indebtedness or
Modification of Debt Documents. No Company shall, directly or indirectly:
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(a) make any payment or prepayment (optional or otherwise) on or
redemption of or any payments in redemption, defeasance or repurchase
(whether in cash, securities or other Property) of any Indebtedness, except
(1) regularly scheduled mandatory payments of interest, (2) pursuant to any
provision of any agreement governing any Indebtedness set forth on Schedule
8.24 that requires the making of any such payment, prepayment, redemption,
defeasance or repurchase or pursuant to the terms of any agreement governing
any Permitted Refinancing of any thereof so long as not more disadvantageous
to any Company or any Creditor than such Indebtedness being refinanced, and
(3) the conversion or exchange of any Indebtedness into shares of common
Equity Interests of Borrower; or
(b) amend, supplement, waive or otherwise modify any of the provisions of
any agreement or instrument governing any Indebtedness set forth on Schedule
8.24 (or any Permitted Refinancing of any thereof):
(i) which shortens the fixed maturity, or increases the rate or
shortens the time of payment of interest or dividends on, or increases
the amount or shortens the time of payment of any principal, or premium
payable whether at maturity, at a date fixed for prepayment or by
acceleration or otherwise of such Indebtedness, or increases the amount
of, or accelerates the time of payment of, any fees payable in connection
therewith;
(ii) which relates to the affirmative or negative covenants,
events of default, redemption or repurchase provisions, or remedies under
the documents or instruments evidencing such Indebtedness and the effect
of which is to subject any Company to any materially more onerous or more
restrictive provisions; or
(iii) if such Indebtedness is Subordinated Debt, which effects
and changes to the subordination provisions (or related definitions)
therein or otherwise materially adversely affects the interests of the
Creditors as senior creditors or the interests of the Creditors under
this Agreement or any other Credit Document in any respect.
9.20. Year 2000 Compliance. Each Company will use commercially reasonable
efforts to eliminate any significant risks that computer hardware, software or
any equipment containing embedded microchips used in their business or
operations will not in the case of dates or time periods occurring after
December 31, 1999 function, in the receipt, transmission, processing,
manipulation, storage, retrieval, retransmission or other utilization of data,
at least as effectively as in the case of dates or time periods occurring prior
to January 1, 2000, in any respect that would cause a Material Adverse Effect.
9.21. Tax Sharing Arrangements. No Company shall enter into or permit to
exist any tax sharing agreement or similar arrangement unless the same shall
have been reviewed by, and consented to, by Lead Arranger.
9.22. Refinancing. Borrower shall use commercially reasonably efforts to
refinance the Term Loans as soon as practicable after the Closing Date (the
"Refinancing") and cooperate with
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MLPF&S in the marketing of any offering of securities in accordance with a
mutually satisfactory marketing and roadshow schedule. The Company shall (i)
cooperate with MLPF&S and provide MLPF&S with information required by MLPF&S in
connection with the Refinancing or other means of refinancing the Term Loans,
(ii) assist MLPF&S in connection with the marketing of the Refinancing
(including promptly providing to MLPF&S any information reasonably requested to
effect the Refinancing and making available senior management of Borrower for
investor meetings), and (iii) cooperate with MLPF&S in the timely preparation of
marketing materials to be used in connection with the syndication of the Loan
and any registration statement or private placement memoranda relating to the
Refinancing.
9.23. Additional Obligors. Upon any Company creating or acquiring any
Subsidiary after the Closing Date (each such Subsidiary referred to herein as an
"Additional Obligor" and collectively as the "Additional Obligors"), Borrower
shall (i) cause each such Subsidiary that is a Wholly Owned Subsidiary to
execute and deliver all such agreements, guarantees, documents and certificates
(including any amendments to the Credit Documents and a Joinder Agreement) as
Administrative Agent or the Majority Lenders may reasonably request and do such
other acts and things as Administrative Agent or the Majority Lenders may
reasonably request in order to have such Subsidiary guarantee the Obligations in
accordance with the terms of the Credit Documents, (ii) promptly, to the extent
permitted by Contractual Obligations existing on the Closing Date, (I) execute
and deliver to Administrative Agent such amendments to the Security Documents as
Administrative Agent deems necessary or advisable in order to grant to
Administrative Agent, for the benefit of the Lenders, a perfected first priority
security interest in the Equity Interests and debt securities of such new
Subsidiary which are owned by Borrower or any Subsidiary and required to be
pledged pursuant to the Security Agreement, (II) deliver to Administrative Agent
the certificates representing such Equity Interests and debt securities,
together with (A) in the case of such Equity Interests, undated stock powers
endorsed in blank, and (B) in the case of such debt securities, endorsed in
blank, in each case executed and delivered by a Responsible Officer of Borrower
or such Subsidiary, as the case may be, (III) to the extent permitted by
Contractual Obligations existing on the Closing Date, cause such new Subsidiary
to take such actions necessary or advisable to grant to Administrative Agent for
the benefit of the Creditors a perfected first priority security interest in the
collateral described in the Security Agreement with respect to such new
Subsidiary, including, without limitation, the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Security
Agreement or by law or as may be reasonably requested by Administrative Agent,
and (IV) if reasonably requested by Administrative Agent, deliver to
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to Administrative Agent.
9.24. Limitation on Issuance or Dispositions of Equity Interests of
Subsidiaries. Neither Borrower nor any Subsidiary shall effect the Disposition
of any Equity Interests of any Subsidiary unless all Equity Interests owned by
Borrower and the Subsidiaries are sold pursuant thereto in accordance with the
Credit Documents, upon which sale the Guarantee by such Subsidiary shall be
automatically deemed to be released.
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Section 10. Events of Default. If one or more of the following events
(herein called "Events of Default") shall occur and be continuing:
(a) (i) Borrower shall default in the payment when due (whether at stated
maturity upon prepayment or repayment or acceleration or otherwise) of any
principal of any Term Loan, or (ii) Borrower shall default in the payment
when due of interest on any Term Loan or any fee or any other amount payable
by it hereunder or under any other Credit Document when due and such default
under this clause (ii) shall have continued unremedied for five or more
Business Days; or
(b) (i) Any Company shall default in the payment when due of any
principal of or interest on any of its Indebtedness (other than the Terms
Loans) aggregating $2.0 million or more, beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was
created, after giving effect to any consents or waivers relating thereto
obtained before the expiration of any such period of grace; or (ii) any
Company fails to perform or observe any other term, condition or covenant,
or any other event shall occur or condition exist under any note, agreement,
indenture or other document evidencing or relating to any Indebtedness
aggregating $2.0 million or more if the effect of such event (after giving
effect to any consents or waivers relating thereto obtained before the
expiration of any such period of grace) is to cause, or to permit the holder
or holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause (with or without notice or passage of time or
both), such Indebtedness to become due, or to be prepaid in full (whether by
redemption, purchase, offer to purchase or otherwise), prior to its stated
maturity; or
(c) Any representation or warranty made or deemed made in any Credit
Document (or in any modification or supplement thereto) by any Company or in
any certificate furnished to any Creditor pursuant to the provisions
thereof, shall prove to have been incorrect, false or misleading as of the
time made, deemed made or furnished in any material respect; or
(d) Any Obligor shall default in the performance of any of its
obligations under any of Sections 9.01(f), 9.06 through 9.11, 9.14, 9.15 or
9.17 through 9.24; or Borrower shall default in the performance of its
obligations under Section 9.01(e) or (k) and such default shall continue
unremedied for at least seven Business Days; or any Obligor shall default in
the performance of any of its other obligations in this Agreement or the
Security Agreement and such default shall continue unremedied for a period
of at least thirty days after written notice thereof to such Obligor and
Borrower by Administrative Agent or the Majority Lenders; or
(e) Any Company shall fail generally to pay its debts as such debts
become due; or
(f) Any Company shall (i) apply for or consent to the appointment of, or
the taking of possession by, a receiver, custodian, trustee or liquidator of
itself or of all or a substantial part of its Property, (ii) make a general
assignment for the benefit of its creditors, (iii) commence or consents to
any Insolvency Proceeding, (iv) file a petition seeking to take advantage of
any other law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or
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readjustment of debts, (v) fail to controvert within 30 days or in a timely
and appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary Insolvency Proceeding, or (vi) take any
corporate action for the purpose of effecting any of the foregoing; or
(g) (i) Any Insolvency Proceeding is commenced or filed against any
Company, or any writ, judgment, warrant of attachment, execution or similar
process is issued or levied against any Company, and either (1) such
proceeding or petition shall not be dismissed, or such writ, judgment,
warrant of attachment, execution or similar process shall not be released,
vacated or fully bonded, within 30 days after commencement, filing or levy
or (2) such proceeding shall not be actively contested by such Company; (ii)
any Company admits the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under
non-U.S. law) is ordered in any Insolvency Proceeding; (iii) any Company
acquiesces in the appointment of a receiver, receiver and manager, trustee,
custodian, conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar person for itself or a substantial portion of
its Property or business; or (iv) an order of relief against any Company
shall be entered in any Insolvency Proceeding; or
(h) A final judgment or judgments for the payment of money in excess of
$2.0 million in the aggregate (exclusive of judgment amounts to the extent
covered by insurance) shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction against any
Company and the same shall not be discharged (or provision shall not be made
for such discharge), vacated or bonded pending appeal, or a stay of
execution thereof shall not be procured, within 30 days from the date of
entry thereof and such Company shall not, within said period of 30 days, or
such longer period during which execution of the same shall have been
stayed, appeal therefrom and cause the execution thereof to be stayed during
such appeal; or
(i) An ERISA Event or noncompliance with respect to Foreign Plans shall
have occurred that, in the opinion of the Majority Lenders when taken
together with all other ERISA Events and noncompliance with respect to
Foreign Plans that have occurred, is reasonably likely to result in
liability of any Company in an aggregate amount exceeding $1.0 million; or
(j) Any Change of Control shall occur; or
(k) Any Guarantee ceases to be in full force and effect (other than in
connection with any merger, consolidation, disposition or liquidation of a
Guarantor permitted under this Agreement) or any of the Guarantors
repudiates, or attempts to repudiate, any of its obligation under any of the
Guarantees; or
(l) Any Credit Document or any material provision thereof shall at any
time and for any reason be declared by a court of competent jurisdiction to
be null and void, or a Proceeding shall be commenced by any Company or any
other Person, or by any Governmental Authority, seeking to establish the
invalidity or unenforceability thereof (exclusive of ques-
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tions of interpretation of any provision thereof), or any Company shall
repudiate or deny in writing that it has any liability or obligation for the
payment of principal or interest or other obligations purported to be
created under any Credit Document; or
(m) Any non-monetary judgment, order or decree is entered against any
Company which does or would reasonably be likely to have a Material Adverse
Effect, and there shall be any period of 45 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; or
(n) The Security Agreement after delivery thereof by any Obligor at any
time shall cease to be in full force and effect, or ceases to give
Administrative Agent the Liens, rights, powers and privileges purported to
be created thereby, in favor of Administrative Agent on behalf of the
Creditors, superior to and prior to the rights of all third Persons other
than the holders of Prior Liens and subject to no other Liens except as
expressly permitted thereby, or any judgment creditor having a Lien against
any Collateral commences legal action to foreclose such Lien or otherwise
exercise its remedies against any Collateral or any Company fails to comply
with or to perform any material obligation or agreement under the Security
Agreement within ten days after being requested by Administrative Agent or
any Lender; or
(o) The subordinated provisions relating to any Subordinated Debt (the
"Subordination Provisions") shall fail in any material respect to be
enforceable by the Lenders (which have not effectively waived the benefits
thereof) in accordance with the terms thereof, or any Obligation shall fail
to constitute Senior Indebtedness (as defined in any Subordinated Debt), or
any Obligor shall, directly or indirectly, disavow or contest in any manner
any of the Subordination Provisions;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (e), (f) or (g) of this Section 10, Administrative Agent may, and upon
written direction of the Majority Lenders shall, by notice to Borrower,
terminate the Term Loan Commitments and/or declare the principal amount then
outstanding of, and the accrued interest on, the Term Loans and all other
amounts payable by Borrower hereunder and under the Term Notes (including any
amounts payable under Section 5.05 or 5.06) to be forthwith due and payable,
whereupon such amounts shall be immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are hereby
expressly waived by Borrower, reduce any claim to judgment, take any other
action permitted by law and/or take any action permitted to be taken by the
Security Agreement during the existence of an Event of Default; and (2) in the
case of the occurrence of an Event of Default referred to in clause (e), (f) or
(g) of this Section 10, the Term Loan Commitments shall automatically be
terminated and the principal amount then outstanding of, and the accrued
interest on, the Term Loans and all other amounts payable by Borrower hereunder
and under the Term Notes (including any amounts payable under Section 5.05 or
5.06) shall automatically become immediately due and payable without
presentment, demand, protest or other formalities of any kind, all of which are
hereby expressly waived by Borrower.
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Section 11. Agents
11.01. General Provisions. Each of the Lenders and Agents hereby
irrevocably appoints Administrative Agent as its agent and authorizes
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to Administrative Agent by the terms hereof and of the
Security Agreement, together with such actions and powers as are reasonably
incidental thereto. Administrative Agent agrees to give promptly to each Lender
a copy of each notice or other document received by it pursuant to any Credit
Document (other than any that are required to be delivered to the Lenders by any
Obligor).
The Lender or other financial institution serving as any Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not such Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with any Company or other Affiliate thereof as if it
were not such Agent hereunder.
No Agent shall have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) no Agent
shall be subject to any fiduciary or other implied duties, regardless of whether
a Default has occurred and is continuing, (b) no Agent shall have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that such Agent is
required to exercise in writing by the Majority Lenders (or such other number or
percentage of the Lenders as shall be required by Section 12.04), and (c) except
as expressly set forth herein, no Agent shall have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to any
Company that is communicated to or obtained by the financial institution serving
as such Agent or any of its Affiliates in any capacity. No Agent shall be liable
for any action taken or not taken by it with the consent or at the request of
the Majority Lenders (or such other number or percentage of the Lenders as shall
be required by Section 12.04) or in the absence of its own gross negligence or
willful misconduct. No Agent shall be deemed to have knowledge of any Default
unless and until written notice thereof is given to Administrative Agent and
such Agent by Borrower or a Lender, and no Agent shall be responsible for or
have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Credit Document, (ii) the
contents of any certificate, report or other document delivered under any Credit
Document or in connection therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth in any
Credit Document, (iv) the validity, enforceability, effectiveness or genuineness
of any Credit Document or any other agreement, instrument or document, (v) the
satisfaction of any condition set forth in Section 7 or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to such
Agent or (vi) making a determination that any condition precedent set forth in
Section 7 that is to be to such Agent's satisfaction is satisfied.
Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper
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Person, and shall not incur any liability for relying thereon. Each Agent may
consult with legal counsel (who may be counsel for Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts. Each Agent may deem and treat the payee of any
Term Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with such
Agent. Each Agent shall be fully justified in failing or refusing to take any
action under any Credit Document unless it shall first receive such advice or
concurrence of the Majority Lenders (or, if so specified by this Agreement, all
Lenders or such other number or percentage of the Lenders as shall be required
by Section 12.04) as it deems appropriate or it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action
(it being understood that this provision shall not release Administrative Agent
from performing any action with respect to Borrower expressly required to be
performed by it pursuant to the terms hereof) under this Agreement. Each Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under the Credit Documents in accordance with a request of the Majority Lenders
(or, if so specified by this Agreement, all Lenders), and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Term Loans.
Each Agent may perform any and all of its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by such Agent and
reasonably acceptable to Borrower. Each Agent and any such sub-agent may perform
any and all of its duties and exercise its rights and powers through their
respective Affiliates, directors, officers, employees, agents and advisors
("Related Parties"). The exculpatory provisions of the preceding paragraphs
shall apply to any such sub-agent and to the Related Parties of each Agent and
any such sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as
activities of such Agent.
Subject to the appointment and acceptance of a successor Agent as
provided in this paragraph, any Agent may resign at any time by notifying the
Lenders (with respect to Administrative Agent only) and Borrower. Upon any such
resignation, the Majority Lenders shall have the right to appoint a successor
which, so long as no Event of Default is continuing, shall be reasonably
acceptable to Borrower. If no successor shall have been so appointed by the
Majority Lenders and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders, appoint a successor Agent which shall be a bank with
an office in New York, New York, or an Affiliate of any such bank which, so long
as no Event of Default is continuing, shall be reasonably acceptable to
Borrower. Upon the acceptance of its appointment as Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by Borrower to a successor Agent shall be the same as those payable to
its predecessor unless otherwise agreed between Borrower and such successor.
After Agent's resignation hereunder, the provisions of this Section 11 shall
continue in effect for the benefit of such retiring Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while it was acting as such Agent.
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Each Lender acknowledges that it has, independently and without reliance
upon any Agent or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon any Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder
or thereunder. No Agent shall be deemed a trustee or other fiduciary on behalf
of any party.
11.02. Indemnification. Each Lender agrees to indemnify and hold harmless
each Agent (to the extent not reimbursed under Section 12.03, but without
limiting the obligations of any Obligor under Section 12.03), ratably in
accordance with the aggregate principal amount of the respective Term Loan
Commitments and Term Loans, for any and all liabilities (including pursuant to
any Environmental Law), obligations, losses, damages, penalties, actions,
judgments, deficiencies, suits, costs, expenses (including reasonable attorney's
fees) or disbursements of any kind and nature whatsoever that may be imposed on,
incurred by or asserted against such Agent (including by any Lender) arising out
of or by reason of any investigation in or in any way relating to or arising out
of any Credit Document or any other documents contemplated by or referred to
therein for any action taken or omitted to be taken by such Agent under or in
respect of any Credit Document or other such documents or the transactions
contemplated thereby (including the costs and expenses that the Obligors are
obligated to pay under Section 12.03 or the enforcement of any of the terms
hereof or thereof or of any such other documents; provided, however, that no
Lender shall be liable for any of the foregoing to the extent they are
determined by a court of competent jurisdiction in a final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of the
party to be indemnified. The agreements set forth in this Section 11.02 shall
survive the payment of all Loans and other obligations hereunder and shall be in
addition to and not in lieu of any other indemnification agreements contained in
any other Credit Document.
11.03. Consents Under Other Credit Documents. Except as otherwise
provided in this Agreement and the other Credit Documents, Administrative Agent
may, with the prior consent of the Majority Lenders (but not otherwise), consent
to any modification, supplement or waiver under any of the other Credit
Documents.
Section 12. Miscellaneous
12.01. Waiver. No failure on the part of any Creditor to exercise and no
delay in exercising, and no course of dealing with respect to, any right, power
or privilege under any Credit Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or privilege under any
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
12.02. Notices. All notices, requests and other communications provided
for herein and under the Security Agreement (including any modifications of, or
waivers, requests or consents
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under, this Agreement) shall be given or made in writing (including by
facsimile) delivered to the intended recipient at the "Address for Notices"
specified below its name on the signature pages hereof (or any Guarantor, as so
specified for Borrower) or, as to any party, at such other address as shall be
designated by such party in a notice to each other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by facsimile or personally delivered or, in the case
of a mailed notice, upon receipt, in each case given or addressed as aforesaid.
Any Notice of Borrowing or Notice of Continuation/Conversion shall be deemed to
have been received when actually received.
12.03. Expenses, Indemnification, Etc. (a) The Obligors, jointly and
severally, agree to pay or reimburse:
(i) Each Agent for all of their respective reasonable out-of-pocket
costs and expenses (including the reasonable fees and expenses of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ or other counsel to Agents selected by Agents (and all
local counsel reasonably deemed necessary by Agents)) in connection with (1)
the negotiation, preparation, execution and delivery of the Credit Documents
and the extension of credit hereunder, (2) the negotiation or preparation of
any modification, supplement or waiver of any of the terms of any Credit
Document (whether or not consummated or effective) and (3) the syndication
of the Term Loans and Term Loan Commitments; and
(ii) each of the Lenders and each Agent for all their respective
reasonable out-of-pocket costs and expenses (including the reasonable fees
and expenses of legal counsel) in connection with (1) any enforcement or
collection proceedings resulting from any Default, including all manner of
participation in or other involvement with (x) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, (y)
judicial or regulatory proceedings and (z) workout, restructuring or other
negotiations or proceedings (whether or not the workout, restructuring or
transaction contemplated thereby is consummated), (2) the enforcement of
this Section 12.03 and (3) any documentary taxes.
(b) The Obligors, jointly and severally, hereby agree to indemnify each
Creditor and their respective Affiliates, directors, trustees, officers,
employees and agents (each, an "Indemnitee") from, and hold each of them
harmless against, and that no Indemnitee will have any liability for, any and
all Losses incurred by any of them (including any and all Losses incurred by any
Agent to any Lender, whether or not any Creditor is a party thereto) directly or
indirectly arising out of or by reason of or relating to the negotiation,
execution, delivery, performance, administration or enforcement of any Credit
Document, any of the transactions contemplated by the Credit Documents
(including the Transactions), any breach by any Company of any representation,
warranty, covenant or other agreement contained in any Credit Document in
connection with any of the Transactions, the use or proposed use of any of the
Term Loans, but excluding any such Losses to the extent finally determined by a
court of competent jurisdiction in a final and nonappealable judgment to have
arisen solely from the gross negligence or bad faith of the Indemnitee.
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Without limiting the generality of the foregoing, the Obligors, jointly
and severally, will indemnify each Creditor and each other Indemnitee from, and
hold each Creditor and each other Indemnitee harmless against, any Losses
described in the preceding sentence arising under any Environmental Law as a
result of (A) the past, present or future operations of any Company (or any
predecessor in interest to any Company), (B) the past, present or future
condition of any site or facility owned, operated, leased or used at any time by
any Company (or any such predecessor in interest), or (C) any Release or
threatened Release of any Hazardous Materials at, on, under or from any such
site or facility; provided, however, that the indemnity hereunder shall be
subject to the exclusions from indemnification set forth in the preceding
sentence.
To the extent that the undertaking to indemnify and hold harmless set
forth in this Section 12.03 or any other provision of any Credit Document
providing for indemnification is unenforceable because it is violative of any
law or public policy or otherwise, the Obligors, jointly and severally, shall
contribute the maximum portion that each of them is permitted to pay and satisfy
under applicable law to the payment and satisfaction of all indemnified
liabilities incurred by any of the Persons indemnified hereunder.
The Obligors also agree that no Indemnitee shall have any liability
(whether direct or indirect, in contract or tort or otherwise) for any Losses to
any Obligor or any Obligor's security holders or creditors resulting from,
arising out of, in any way related to or by reason of any matter referred to in
any indemnification or expense reimbursement provisions set forth in any Credit
Document, except to the extent that any Loss is determined by a court of
competent jurisdiction in a final nonappealable judgment to have resulted from
the gross negligence or bad faith of such Indemnitee.
The Obligors agree that, without the prior written consent of
Administrative Agent, Syndication Agent and the Majority Lenders which consent
shall not be unreasonably withheld, no Obligor will settle, compromise or
consent to the entry of any judgment in any pending or threatened Proceeding in
respect of which indemnification is reasonably likely to be sought under the
indemnification provisions of this Section 12.03 (whether or not any Indemnitee
is an actual or potential party to such Proceeding), unless such settlement,
compromise or consent includes an unconditional written release of each
Indemnitee from all liability arising out of such Proceeding and does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of any Indemnitee and does not involve any payment of money or
other value by any Indemnitee or any injunctive relief or factual findings or
stipulations binding on any Indemnitee.
12.04. Amendments, Etc. (i) No provision of any Credit Document may be
amended, modified or supplemented except by an instrument in writing signed by
the Obligors party thereto and the Majority Lenders, or by the Obligors party
thereto and Administrative Agent acting with the written consent of the Majority
Lenders, and no provision of any Credit Document may be waived except by an
instrument in writing signed by the Obligors party thereto and the Majority
Lenders, or by the Obligors party thereto and Administrative Agent acting with
the written consent of the Majority Lenders; provided, however, that:
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(a) no amendment, modification, supplement or waiver shall, unless by an
instrument signed by each Lender or by Administrative Agent acting with the
written consent of each Lender (with the consent of Lenders having
Obligations directly affected thereby in the case of clauses (I), (II) or
(IV) (it being understood that the consent of no other Lender or Agent is
needed in each such case)): (I) extend the scheduled final maturity of any
Term Loan or Term Note (other than pursuant to Section 3.01(b)), or reduce
the rate of interest (other than any waiver of any increase in the interest
rate applicable to any of the Term Loans pursuant to clause (b) of Section
3.02) or fees thereon, or extend the time of payment of interest or fees
thereon, or reduce the principal amount thereof, or make any change to the
definition of Applicable Margin or any defined term used therein in the
context of being used therein in each case if the effect thereof would be to
reduce the rate of interest on any Term Loan (it being understood that
increases in the rate of interest to be paid to any Lender shall require
only the consent of the Majority Lenders), (II) extend the final maturity of
any of the Term Loan Commitments (or reinstate any Commitment terminated
pursuant to Section 10) or amend Section 2.04(a), (III) change the currency
in which any Obligation is payable, (IV) amend the terms of this Section
12.04 or clause (iv) of Section 12.06(b), Section 4.07, 5 or 11.03, (V)
reduce the percentages specified in the definition of the term "Majority
Lenders" or "Supermajority Lenders" or amend any provision of any Credit
Document requiring the consent of all the Lenders or reduce any other
percentage of the Lenders required to make any determinations or waive any
rights hereunder or to modify any provision hereof, (VI) release any
Guarantor from its obligations under Section 6 (unless permitted by this
Agreement), (VII) consent to the assignment or transfer by any Obligor of
any of its rights and obligations under any Credit Document except in a
transaction permitted by Section 9.06, (VIII) release all or substantially
all the Collateral or terminate the Lien under any Credit Document in
respect of all or substantially all the Collateral (except as permitted by
the Credit Documents) or agree to additional obligations (other than the
Obligations and any other extensions of credit under this Agreement
consented to by the Majority Lenders) being secured by the Collateral, or
(IX) amend Section 12.03 or any other indemnification and expense
reimbursement provision set forth in any Credit Document (it being
understood that, notwithstanding the foregoing or any other provision hereof
to the contrary, any prepayment required by Section 2.10(a) may be waived or
amended by the Majority Lenders);
(b) no such amendment or waiver shall increase the Term Loan Commitments
of any Lender over the amount thereof then in effect without the consent of
such Lender (it being understood that amendments or waivers of conditions
precedent, covenants or Defaults shall not constitute an increase of the
Commitment of any Lender);
(c) any modification or supplement of or waiver with respect to Section
11 which affects any Agent in its capacity as such shall require the consent
of such Agent;
(d) the consent of the Supermajority Lenders shall be required to effect
any amendment of the provisions of Section 3.01(b) or of any defined term
used therein in the context of being used therein and the consent(it being
understood that no consent of any Lender need be
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obtained to effect the extension of the Final Maturity Date in accordance
with the term of 3.01(b)); and
(e) no consent of any Lender need be obtained to effect any amendment of
any Credit Document necessary to comply with Section 9.12 or Section 9.20.
(ii) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
Section 12.04(i)(a) (other than clause (I) of such section), the consent of the
Majority Lenders is obtained but the consent of one or more of such other
Lenders whose consent is required is not obtained, then Borrower shall have the
right to replace one or more of such non-consenting Lender or Lenders (so long
as all non-consenting Lenders are so replaced) with one or more Replacement
Lenders pursuant to Section 2.11 so long as at the time of such replacement each
such Replacement Lender consents to the proposed change, waiver, discharge or
termination; provided, however, that Borrower shall not have the right to
replace a Lender solely as a result of the exercise of such Lender's rights (and
the withholding of any required consent by such Lender) pursuant to clause (I)
of Section 12.04(i)(a).
(iii) Notwithstanding anything herein to the contrary, with the consent
of the Majority Lenders, other additional extensions of credit pursuant to this
Agreement may be included in the determination of the Majority Lenders without
notice to or consent of any other Lender or Agent on substantially the same
basis as the Term Loan Commitments (and related extensions of credit) are
included on the Closing Date.
12.05. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
12.06. Assignments and Participations. (a) No Obligor may assign its
respective rights or obligations hereunder or under the Term Notes or any other
Credit Document without the prior written consent of all of the Lenders.
(b) Subject to the terms of the Syndication Letter, each Lender may
assign to any Eligible Person any of its Term Loans its Term Note, and its Term
Loan Commitments (but only with the consent (which shall not be unreasonably
withheld, delayed or conditioned) of Lead Arranger); provided, however, that (i)
no consent of Lead Arranger shall be required in the case of any assignment to
another Lender or any Lender's Affiliate or an Approved Fund of any Lender (in
which case, the assignee and assignor Lenders shall give notice of the
assignment to Lead Arranger); (ii) no consent of Lead Arranger need be obtained
if any Event of Default shall have occurred and be continuing or if Lead
Arranger, in consultation with Borrower, determine that such assignment is
necessary to achieve a successful syndication; (iii) each assignment, other than
to a Lender or any Lender's Affiliate or an Approved Fund of any Lender and
other than any assignment effected by any Agent or any of their respective
Affiliates in connection with the syndication of the Term Loan Commitments
and/or Term Loans or otherwise, shall be in an aggregate amount of at least
$500,000 (unless the assignor's Term Loans and Term Loan Commitments are reduced
to $0 or unless Borrower and Lead Arranger otherwise consent) and (iv) in no
event may any such assignment be made to any Obligor or
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any of its Affiliates without consent of all Lenders. Any assignment of a Term
Loan shall be effective only upon appropriate entries with respect thereto being
made in the Register (and each Term Note shall expressly so provide). Any
assignment or transfer of a Term Loan shall be registered on the Register only
upon surrender for registration of assignment or transfer of the Term Note
evidencing such Term Loan (if a Term Note was issued in respect thereof),
accompanied by an instrument in writing substantially in the form of Exhibit E,
and upon consent thereto by Lead Arranger to the extent required above (none of
which consents to be unreasonably withheld or delayed), one or more new Term
Notes (if requested by the New Lender) in the same aggregate principal amount
shall be issued to the designated assignee and the old Term Notes shall be
returned by Administrative Agent to Borrower marked "cancelled". Upon execution
and delivery by the assignee to Lead Arranger of an instrument in writing
substantially in the form of Exhibit E, and upon consent thereto by Lead
Arranger to the extent required above (none of which consents to be unreasonably
withheld or delayed), upon appropriate entries being made in the Register the
assignee shall have, to the extent of such assignment (unless otherwise provided
in such assignment with the consent of Administrative Agent), the obligations,
rights and benefits of a Lender hereunder holding the Term Loan Commitments,
Term Loans (or portions thereof) assigned to it (in addition to the Term Loan
Commitments, and Term Loans, if any, theretofore held by such assignee) and the
assigning Lender shall, to the extent of such assignment, be released from the
Term Loan Commitments (or portion thereof) so assigned. Upon any such assignment
(other than to a Lender or any Affiliate of a Lender or any Approved Fund and
other than any assignment by Lead Arranger or any of its Affiliates) the
assignee Lender shall pay a fee of $2,000 to Administrative Agent. Upon any such
assignment, certain rights and obligations of the assigning Lender shall survive
as set forth in Section 12.07. Each assignment shall be made pursuant to an
agreement substantially in the form of Exhibit J.
(c) A Lender may sell or agree to sell to one or more other Persons a
participation in all or any part of any Term Loans held by it, or in its Term
Loan Commitments, in which event each purchaser of a participation (a
"Participant") shall be entitled to the rights and benefits of the provisions of
Section 5 (provided, however, that no Participant shall be entitled to receive
any greater amount pursuant to Section 5 than the transferor Lender would have
been entitled to receive in respect of the participation effected by such
transferor Lender had no participation occurred) with respect to its
participation in such Term Loans and Term Loan Commitments as if such
Participant were a "Lender" for purposes of said Section, but, except as
otherwise provided in Section 4.07(c), shall not have any other rights or
benefits under any Credit Document (the Participant's rights against such Lender
in respect of such participation to be those set forth in the agreements
executed by such Lender in favor of the Participant). All amounts payable by
Borrower to any Lender under Section 5 in respect of Term Loans and its Term
Loan Commitments shall be no greater than the amount that would have applied if
such Lender had not sold or agreed to sell any participation in such Term Loans
and Term Loan Commitments, and as if such Lender were funding each of such Term
Loan and Term Loan Commitments in the same way that it is funding the portion of
such Term Loan and Term Loan Commitments in which no participations have been
sold. In no event shall a Lender that sells a participation agree with the
Participant to take or refrain from taking any action hereunder or under any
other Credit Document, except that such Lender may agree with the Participant
that it will not, without the consent of the Participant, agree to any
modification or amendment set forth in subclauses (I),
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(II), (III) or (VIII) of clause (a) of the proviso to Section 12.04 to the
extent such Lender's consent is required therefor.
(d) In addition to the assignments and participations permitted under the
foregoing provisions of this Section 12.06, any Lender may assign and pledge all
or any portion of its Term Loans and its Term Notes to any United States Federal
Reserve Bank as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank and, in the case of a Lender that is an investment
fund, any such Lender may assign or pledge all or any portion of its Term Loans
and its Term Notes to its trustee in support of its obligations to its trustee,
without notice to or consent of Borrower or any Agent. No such assignment shall
release the assigning Lender from its obligations hereunder.
(e) A Lender may furnish any information concerning any Company in the
possession of such Lender from time to time to assignees and participants
(including prospective assignees and participants) subject, however, to and so
long as the recipient agrees to be bound by the provisions of Section 12.11. In
addition, each Agent may furnish any information concerning any Obligor or any
of its Affiliates in such Agent's possession to any Affiliate of such Agent,
subject, however, to the provisions of Section 12.11. The Obligors shall assist
any Lender in effectuating any assignment or participation pursuant to this
Section 12.06 (including during syndication) in whatever manner such Lender
reasonably deems necessary, including participation in meetings with prospective
transferees.
(f) Borrower agrees to, promptly, upon the request of Lead Arranger, (a)
provide, and cause its affiliates and advisors to provide, to Lead Arranger all
information reasonably deemed necessary by Lead Arranger to complete
successfully the syndication, including information and projections (including
updated projections) contemplated hereby, (b) assist, and cause its affiliates
and advisors to assist, Lead Arranger in the preparation of a Confidential
Information Memorandum and other marketing materials to be used in connection
therewith, and (c) make available at reasonable times representatives of
Borrower. Borrower also agrees to use its reasonable best efforts to ensure that
Lead Arranger's syndication efforts benefit materially from its (and its
affiliates') existing lending relationships. Borrower agrees not to issue or
syndicate or announce the issuance or syndication of any credit facility or debt
security by Borrower or any of its subsidiaries during the syndication of the
Term Facility. The provisions of this paragraph shall survive through completion
of syndication of the Term Facility (as determined by Lead Arranger in its sole
discretion), except that the provisions of the preceding sentence shall be in
effect only until the 90th day after the Closing Date.
12.07. Survival. The obligations of the Obligors under Sections 5.01,
5.05, 5.06 and 12.03, the obligations of each Guarantor under Section 6.03, and
the obligations of the Lenders under Sections 5.06 and 11.02, shall survive the
repayment of the Term Loans and the termination of the Term Loan Commitments
and, in the case of any Lender that may assign any interest in its Term Loan
Commitments or Term Loans hereunder, shall (to the extent relating to such time
as it was a Lender) survive the making of such assignment, notwithstanding that
such assigning Lender may cease to be a "Lender" hereunder. In addition, each
representation and warranty made, or deemed to be made by a notice of any
extension of credit, herein or pursuant hereto shall be considered to have
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been relied upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the Term Notes and the making of any extension of
credit hereunder, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that Administrative Agent or any Lender may
have had notice or knowledge of any Default or incorrect representation or
warranty.
12.08. Captions. The table of contents and captions and section headings
appearing herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
12.09. Counterparts; Interpretation; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, the Fee
Letter, the Syndication Letter and the Engagement Letter constitute the entire
contract among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating to
the subject matter hereof, other than the Fee Letter and the Engagement Letter,
which are not superseded and survive. This Agreement shall become effective when
the Closing Date shall have occurred and this Agreement shall have been executed
and delivered by the Obligors and each Agent and when Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
12.10. Governing Law; Submission to Jurisdiction; Waivers; Etc. Each
Credit Document shall be governed by, and construed in accordance with, the law
of the State of New York, without regard to the principles of conflicts of laws
thereof (except in the case of the other Credit Documents, to the extent
otherwise expressly stated therein). Each Obligor hereby irrevocably and
unconditionally: (I) submits for itself and its Property in any Proceeding
relating to any Credit Document to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Supreme Court of the State of New York sitting in New York
County, the courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof; (II) consents that any such
Proceeding may be brought in any such court and waives trial by jury and any
objection that it may now or hereafter have to the venue of any such Proceeding
in any such court or that such Proceeding was brought in an inconvenient court
and agrees not to plead or claim the same; (III) agrees that service of process
in any such Proceeding may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail), postage prepaid,
to Borrower at its address set forth on the signature page hereto or at such
other address of which Administrative Agent shall have been notified pursuant
thereto; and (IV) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to ▇▇▇ in any other jurisdiction.
12.11. Confidentiality. Each Lender agrees to keep confidential
information obtained by it pursuant to the Credit Documents confidential in
accordance with such Lender's custom-
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ary practices and agrees that it will only use such information in connection
with the transactions contemplated hereby and not disclose any of such
information other than (a) to such Lender's employees, representatives,
directors, attorneys, auditors, agents, professional advisors, trustees or
affiliates who are advised of the confidential nature thereof or to any direct
or indirect contractual counterparty in swap agreements or such contractual
counterparty's professional advisor (so long as such contractual counterparty or
professional advisor to such contractual counterparty agrees to be bound by the
provision of this Section 12.11, such Lender being liable for any breach of
confidentiality by any Person described in this clause (a)), (b) to the extent
such information presently is or hereafter becomes available to such Lender on a
non-confidential basis from any source that is in the public domain at the time
of disclosure, (c) to the extent disclosure is required by any Law, subpoena or
judicial order or process (provided that notice of such requirement or order
shall be promptly furnished to Borrower unless such notice is legally
prohibited) or requested or required by bank, securities, insurance or
investment company regulations or auditors or any administrative body or
commission (including the Securities Valuation Office of the NAIC) to whose
jurisdiction such Lender may be subject, (d) to any rating agency to the extent
required in connection with any rating to be assigned to such Lender, (e) to
assignees or participants or prospective assignees or participants who agree to
be bound by the provisions of this Section 12.11, (f) to the extent required in
connection with any litigation between any Obligor and any Creditor with respect
to the Term Loans or any Credit Document or (g) with Borrower's prior written
consent.
12.12. Independence of Representations, Warranties and Covenants. The
representations, warranties and covenants contained herein shall be independent
of each other and no exception to any representation, warranty or covenant shall
be deemed to be an exception to any other representation, warranty or covenant
contained herein unless expressly provided, nor shall any such exception be
deemed to permit any action or omission that would be in contravention of
applicable law. the representation and warranties contained herein will be
terminated upon the repayment in full of all Obligations and termination of all
Commitments hereunder.
12.13. Severability. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provisions or the remaining provisions of this Agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
AETHER SYSTEMS LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
Address for Notices:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Contact Person: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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GUARANTORS:
Aether Systems, Inc.
Aether OpenSky Investments LLC*
Mobeo, Inc.,
Each as a Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
*By: Aether Systems LLC
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▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇
& ▇▇▇▇▇ INCORPORATED,
as Lead Arranger, Syndication Agent and
Administrative Agent
By: /s/ ▇▇▇▇ LUCENT
--------------------------
Name: ▇▇▇▇ Lucent
Title: Director
Address for Notices:
World Financial Center
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated
South Tower
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ Lucid
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
94
S-4
LENDERS
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION,
as a Lender
By: /s/ ▇▇▇▇ LUCENT
----------------------------
Name: ▇▇▇▇ Lucent
Title: Vice President
Lending Office for all Loans:
World Financial Center
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Address for Notices:
World Financial Center
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ Lucid
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
95
ANNEX A
TERM LOAN COMMITMENTS
Allocation
-------------------------------------- -----------------------------
Institution Term Loan Commitments
-------------------------------------- -----------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation $17,000,000
-----------------------------
Total $17,000,000
=============================