EXHIBIT 10.1
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EXECUTION COPY
CREDIT AGREEMENT
dated as of
May 29, 2003
among
INTERLINE BRANDS, INC.,
THE LENDERS PARTY HERETO,
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
and
JPMORGAN CHASE BANK,
as Syndication Agent
___________________________
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and
CREDIT SUISSE FIRST BOSTON,
as Joint Bookrunners and Joint Lead Arrangers
TABLE OF CONTENTS
PAGE
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms......................................................................................1
SECTION 1.02. Classification of Loans and Borrowings............................................................24
SECTION 1.03. Terms Generally...................................................................................24
SECTION 1.04. Accounting Terms; GAAP............................................................................24
ARTICLE II
The Credits
SECTION 2.01. Commitments ......................................................................................25
SECTION 2.02. Loans and Borrowings..............................................................................25
SECTION 2.03. Requests for Borrowings...........................................................................26
SECTION 2.04. Swingline Loans...................................................................................27
SECTION 2.05. Letters of Credit.................................................................................28
SECTION 2.06. Funding of Borrowings.............................................................................32
SECTION 2.07. Interest Elections................................................................................33
SECTION 2.08. Termination and Reduction of Commitments..........................................................34
SECTION 2.09. Repayment of Loans; Evidence of Debt..............................................................35
SECTION 2.10. Amortization of Term Loans........................................................................36
SECTION 2.11. Prepayment of Loans...............................................................................37
SECTION 2.12. Fees..............................................................................................39
SECTION 2.13. Interest .........................................................................................40
SECTION 2.14. Alternate Rate of Interest........................................................................41
SECTION 2.15. Increased Costs...................................................................................41
SECTION 2.16. Break Funding Payments............................................................................42
SECTION 2.17. Taxes ............................................................................................43
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.......................................44
SECTION 2.19. Mitigation Obligations; Replacement of Lenders....................................................46
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers..............................................................................47
SECTION 3.02. Authorization; Enforceability.....................................................................47
SECTION 3.03. Governmental Approvals; No Conflicts..............................................................47
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SECTION 3.04. Financial Condition; No Material Adverse Change...................................................47
SECTION 3.05. Properties .......................................................................................48
SECTION 3.06. Litigation and Environmental Matters..............................................................49
SECTION 3.07. Compliance with Laws and Agreements...............................................................49
SECTION 3.08. Investment and Holding Company Status.............................................................49
SECTION 3.09. Taxes ............................................................................................49
SECTION 3.10. ERISA ............................................................................................49
SECTION 3.11. Disclosure .......................................................................................50
SECTION 3.12. Subsidiaries......................................................................................50
SECTION 3.13. Insurance ........................................................................................50
SECTION 3.14. Labor Matters.....................................................................................50
SECTION 3.15. Solvency .........................................................................................51
SECTION 3.16. Senior Indebtedness...............................................................................51
ARTICLE IV
Conditions
SECTION 4.01. Effective Date....................................................................................51
SECTION 4.02. Each Credit Event.................................................................................53
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information........................................................54
SECTION 5.02. Notices of Material Events........................................................................55
SECTION 5.03. Information Regarding Collateral..................................................................55
SECTION 5.04. Existence; Conduct of Business....................................................................56
SECTION 5.05. Payment of Obligations............................................................................56
SECTION 5.06. Maintenance of Properties.........................................................................57
SECTION 5.07. Insurance ........................................................................................57
SECTION 5.08. Casualty and Condemnation.........................................................................57
SECTION 5.09. Books and Records; Inspection and Audit Rights....................................................57
SECTION 5.10. Compliance with Laws..............................................................................57
SECTION 5.11. Use of Proceeds and Letters of Credit.............................................................57
SECTION 5.12. Additional Subsidiaries...........................................................................58
SECTION 5.13. Further Assurances................................................................................58
SECTION 5.14. Interest Rate Protection..........................................................................59
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness; Certain Equity Securities...........................................................59
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SECTION 6.02. Liens.............................................................................................62
SECTION 6.03. Fundamental Changes...............................................................................63
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions.........................................64
SECTION 6.05. Asset Sales.......................................................................................66
SECTION 6.06. Sale and Leaseback Transactions...................................................................67
SECTION 6.07. Swap Agreements...................................................................................67
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.............................................67
SECTION 6.09. Transactions with Affiliates......................................................................68
SECTION 6.10. Restrictive Agreements............................................................................69
SECTION 6.11. Amendment of Material Documents...................................................................69
SECTION 6.12. Interest Expense Coverage Ratio...................................................................69
SECTION 6.13. Leverage Ratio....................................................................................70
SECTION 6.14. Maximum Capital Expenditures......................................................................71
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices...........................................................................................76
SECTION 9.02. Waivers; Amendments...............................................................................77
SECTION 9.03. Expenses; Indemnity; Damage Waiver................................................................79
SECTION 9.04. Successors and Assigns............................................................................80
SECTION 9.05. Survival..........................................................................................83
SECTION 9.06. Counterparts; Integration; Effectiveness..........................................................84
SECTION 9.07. Severability......................................................................................84
SECTION 9.08. Right of Setoff...................................................................................84
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process........................................85
SECTION 9.10. WAIVER OF JURY TRIAL..............................................................................85
SECTION 9.11. Headings..........................................................................................86
SECTION 9.12. Confidentiality...................................................................................86
SECTION 9.13. Interest Rate Limitation..........................................................................87
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SCHEDULES:
Schedule 1.01(a) -- Mortgaged Property
Schedule 1.01(b) -- Excluded Properties
Schedule 2.01 -- Commitments
Schedule 2.05 -- Existing Letters of Credit
Schedule 3.05 -- Real Property
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 4.01(f) -- Certain Promissory Notes
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Existing Investments
Schedule 6.09 -- Transactions with Affiliates
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B -- Form of Borrowing Request
Exhibit C -- Form of Interest Election Request
Exhibit D-1 -- Form of Opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
Exhibit D-2 -- Form of Opinion of Dechert LLP
Exhibit E -- Form of Guarantee and Collateral Agreement
Exhibit F -- Form of Perfection Certificate
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CREDIT AGREEMENT dated as of May 29, 2003,
among INTERLINE BRANDS, INC., a New Jersey
corporation, the LENDERS party hereto, CREDIT SUISSE
FIRST BOSTON, a bank organized under the laws of
Switzerland and acting through its Cayman Islands
branch, as Administrative Agent, and JPMORGAN CHASE
BANK, a New York banking corporation, as Syndication
Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"ADDITIONAL SENIOR SUBORDINATED NOTES" means any Senior
Subordinated Notes due 2011 to be issued by the Borrower after the Effective
Date, in accordance with the terms and conditions of the Subordinated Notes
Indenture, and the Indebtedness represented thereby.
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum equal to (a) the
LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" means Credit Suisse First Boston, in
its capacity as administrative agent for the Lenders hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"AGENTS" means the Administrative Agent and the Syndication
Agent.
"AGREEMENT" means this Credit Agreement, as the same may be
renewed, extended, modified, supplemented or amended from time to time.
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"ALTERNATE BASE RATE" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"APPLICABLE PERCENTAGE" means, with respect to any Revolving
Lender, the percentage of the total Revolving Commitments represented by such
Lender's Revolving Commitment. If the Revolving Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"APPLICABLE RATE" means, for any day (a) with respect to any
Term Loan, (i) 3.50% per annum, in the case of an ABR Loan, or (ii) 4.50% per
annum, in the case of a Eurodollar Loan, and (b) with respect to any ABR Loan or
Eurodollar Loan that is a Revolving Loan, as the case may be, the applicable
rate per annum set forth below under the caption "ABR Spread" or "Eurodollar
Spread", as the case may be, based upon the Leverage Ratio as of the most recent
determination date; PROVIDED that until the earlier of (i) the delivery of the
financial statements pursuant to Section 5.01(a) for the Borrower's fiscal year
ending on December 26, 2003 and (ii) the delivery of a Pricing Certificate for
the fiscal year ending on December 26, 2003, the "Applicable Rate" for purposes
of clause (b) shall be the applicable rate per annum set forth below in Category
1:
ABR EURODOLLAR
LEVERAGE RATIO: SPREAD SPREAD
--------------- ------ ------
CATEGORY 1
Ratio is greater than 4.25 to 1.00 2.75% 3.75%
CATEGORY 2
Ratio is less than or equal to 4.25 to
1.00 but greater than 3.50 to 1.00 2.50% 3.50%
CATEGORY 3
Ratio is less than or equal to 3.50 to
1.00 but greater than 3.00 to 1.00 2.25% 3.25%
CATEGORY 4
Ratio is less than or equal to 3.00 to 1.00 1.75% 2.75%
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon the Borrower's consolidated financial statements delivered pursuant
to Section 5.01(a) or (b) or, in the case of a fiscal quarter of any fiscal
year, a Pricing Certificate, and (ii) each change in the Applicable Rate
resulting from a change in the Leverage Ratio shall be effective during the
period commencing on and including the date that is three Business Days after
the date of delivery to the Administrative Agent of such consolidated financial
statements or Pricing Certificate indicating such change and ending on the date
immediately preceding the effective date of the next such change; PROVIDED that
the Leverage Ratio shall be deemed to be in Category 1, at the option of the
Administrative Agent or at the request of the Required Lenders, (A) at any time
that an Event of Default
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has occurred and is continuing or (B) if the Borrower fails to deliver the
consolidated financial statements required to be delivered by it pursuant to
Section 5.01(a) or (b), during the period from the expiration of the time for
delivery thereof until the third Business Day after such consolidated financial
statements are delivered.
"APPROVED FUND" has the meaning assigned to such term in
Section 9.04.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"BOARD" means the Board of Governors of the Federal Reserve
System of the United States of America.
"BORROWER" means Interline Brands, Inc., a New Jersey
corporation.
"BORROWING" means (a) Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, or (b) a Swingline Loan.
"BORROWING REQUEST" means a request by the Borrower for a
Borrowing in accordance with Section 2.03 and substantially in the form of
Exhibit B, or such other form as shall be approved by the Administrative Agent.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; PROVIDED that, when used in connection with a
Eurodollar Loan, the term "BUSINESS DAY" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"BUYERS ACCESS" means Buyers Access LLC, a Delaware limited
liability company.
"BUYERS ACCESS OPERATING AGREEMENT" means the limited
liability company agreement dated as of April 16, 2003, among Buyers Access,
Glenwood Acquisition LLC, AIMCO/NHP Holdings, Inc. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
"CAPITAL EXPENDITURES" means, for any period, (a) the
additions to property, plant and equipment and other capital expenditures of the
Borrower and the Subsidiaries, on a consolidated basis, that are (or would be)
set forth in a consolidated statement of cash flows of the Borrower for such
period prepared in accordance with GAAP (including expenditures for maintenance
and repairs which should be capitalized in accordance with GAAP) and (b) Capital
Lease Obligations incurred by the Borrower and the Subsidiaries, on a
consolidated basis, during such period; PROVIDED that Capital Expenditures shall
not include (i) expenditures of proceeds of insurance settlements, condemnation
awards and other settlements in respect of lost, destroyed, damaged or condemned
assets, equipment or other property to the extent such expenditures are made
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to replace or repair such lost, destroyed, damaged or condemned assets,
equipment or other property or otherwise to acquire, maintain, develop,
construct, improve or repair assets or properties useful in the business of the
Borrower, (ii) investments that constitute a Permitted Acquisition pursuant to
clause (a) of Section 6.04 or (iii) investments made with Retained Equity
Proceeds.
"CAPITAL LEASE OBLIGATIONS" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CERTIFICATE OF DESIGNATION" means the Wilmar Industries, Inc.
Certificate of Designation of Senior Preferred Stock dated May 16, 2000, as in
effect on the date hereof.
"CHANGE IN CONTROL" means (a) prior to an IPO, (i) the failure
by the Permitted Investors to own, directly or indirectly, beneficially and of
record, Equity Interests in the Borrower representing at least a majority of
each of the aggregate ordinary voting power and aggregate equity value
represented by the issued and outstanding Equity Interests in the Borrower or
(ii) the failure by the Sponsors to own, directly or indirectly, beneficially
and of record, Equity Interests in the Borrower representing 30% of each of the
aggregate voting power and aggregate equity value represented by the issued and
outstanding Equity Interests in the Borrower; (b) after an IPO, the failure by
the Sponsors to own, directly or indirectly, beneficially and of record, Equity
Interests in the Borrower representing 25% of each of the aggregate voting power
and aggregate equity value represented by the issued and outstanding Equity
Interests in the Borrower; (c) after an IPO, the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934, as amended, and the
rules of the SEC thereunder as in effect on the date hereof) other than the
Permitted Investors, of Equity Interests representing a greater percentage of
either the aggregate ordinary voting power or the aggregate equity value
represented by the issued and outstanding Equity Interests in the Borrower than
the percentage of the aggregate ordinary voting power or the aggregate equity
value, as applicable, owned, directly or indirectly, beneficially and of record,
by the Sponsors; (d) occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons who were neither (i)
nominated by the board of directors of the Borrower nor (ii) appointed by
directors so nominated; (e) the acquisition of direct or indirect Control of the
Borrower by any Person or group other than the Sponsors; or (f) the occurrence
of a "Change of Control", as defined in the Subordinated Debt Documents.
"CHANGE IN LAW" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
Issuing Bank (or, for purposes of Section
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2.15(b), by any lending office of such Lender or by such Lender's or Issuing
Bank's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"CLASS", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, Term Loans or Swingline Loans and, when used in reference to
any Commitment, refers to whether such Commitment is a Revolving Commitment or
Term Loan Commitment.
"CLO" has the meaning assigned to such term in Section 9.04.
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
"COLLATERAL" means any and all "Collateral", as defined in any
applicable Security Document.
"COLLATERAL AGENT" means the Administrative Agent or other
Person acting as collateral agent for the Secured Parties (as defined in the
Collateral Agreement) under the Security Documents.
"COLLATERAL AGREEMENT" means the Guarantee and Collateral
Agreement among the Borrower, the Subsidiary Loan Parties and the Collateral
Agent, substantially in the form of Exhibit E.
"COLLATERAL AND GUARANTEE REQUIREMENT" means the requirement
that:
(a) the Administrative Agent shall have received from each
Loan Party either (i) a counterpart of the Collateral Agreement duly
executed and delivered on behalf of such Loan Party or (ii) in the case
of any Person that becomes a Loan Party after the Effective Date, a
supplement to the Collateral Agreement, substantially in the form
specified therein, duly executed and delivered on behalf of such Loan
Party;
(b) all outstanding Equity Interests of each Subsidiary owned
by or on behalf of any Loan Party shall have been pledged pursuant to
the Collateral Agreement (except that the Loan Parties shall not be
required to pledge (i) more than 65% of the outstanding voting Equity
Interests of any Foreign Subsidiary that is not a Loan Party but is
owned directly by a Loan Party, (ii) any Equity Interests of a Foreign
Subsidiary that is not owned directly by a Loan Party and (iii) any
Equity Interests in a Joint Venture or Glenwood Acquisition LLC), and
the Administrative Agent shall have received certificates or other
instruments representing all such Equity Interests, together with
undated stock powers or other instruments of transfer with respect
thereto endorsed in blank;
(c) all Indebtedness of the Borrower and each Subsidiary that
is owing to any Loan Party shall be evidenced by a promissory note and
shall have been
6
pledged pursuant to the Collateral Agreement and the Administrative
Agent shall have received all such promissory notes, together with
undated instruments of transfer with respect thereto endorsed in blank;
(d) all documents and instruments, including Uniform
Commercial Code financing statements, required by law or reasonably
requested by the Administrative Agent to be filed, registered or
recorded to create the Liens intended to be created by the Collateral
Agreement and perfect such Liens to the extent required by, and with
the priority required by, the Collateral Agreement, shall have been
filed, registered or recorded or delivered to the Administrative Agent
for filing, registration or recording;
(e) the Administrative Agent shall have received (i)
counterparts of a Mortgage with respect to each Mortgaged Property duly
executed and delivered by the record owner of such Mortgaged Property,
(ii) a policy or policies of title insurance issued by a nationally
recognized title insurance company insuring the Lien of each such
Mortgage as a valid first-priority Lien on the Mortgaged Property
described therein, free of any other Liens except as expressly
permitted by Section 6.02, together with such endorsements, coinsurance
and reinsurance as the Administrative Agent may reasonably request, and
(iii) such surveys, abstracts, appraisals, legal opinions and other
documents as the Administrative Agent may reasonably request with
respect to any such Mortgage or Mortgaged Property; and
(f) each Loan Party shall have obtained all consents and
approvals required to be obtained by it in connection with the
execution and delivery of all Security Documents to which it is a
party, the performance of its obligations thereunder and the granting
by it of the Liens thereunder.
"COMMITMENT" means a Revolving Commitment or Term Loan
Commitment, or any combination thereof (as the context requires).
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period,
the excess of (a) the sum of (i) the interest expense (including imputed
interest expense in respect of Capital Lease Obligations) of the Borrower and
the Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP, (ii) any interest accrued during such period in respect of
Indebtedness of the Borrower or any Subsidiary that is required to be
capitalized rather than included in consolidated interest expense for such
period in accordance with GAAP, plus (iii) any cash payments made during such
period in respect of obligations referred to in clause (b)(ii) below that were
amortized or accrued in a previous period, minus (b) the sum of (i) to the
extent included in such consolidated interest expense for such period, non-cash
amounts attributable to amortization of financing costs paid in a previous
period, plus (ii) to the extent included in such consolidated interest expense
for such period, non-cash amounts attributable to amortization of debt discounts
or accrued interest payable in kind for such period plus (iii) interest income
for such period.
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"CONSOLIDATED EBITDA" means, for any period, Consolidated Net
Income for such period plus (a) without duplication and to the extent deducted
in determining such Consolidated Net Income, the sum of (i) consolidated
interest expense of the Borrower and the Subsidiaries for such period, (ii)
consolidated income tax expense of the Borrower and the Subsidiaries for such
period, (iii) all amounts attributable to depreciation and amortization for such
period, (iv) amortization or write-down of intangibles (including goodwill), (v)
costs and expenses paid by the Borrower in connection with the Transactions in
an aggregate amount not to exceed $11,500,000 in the fiscal year ending December
26, 2003; (vi) expenses and payments directly attributable to the termination of
real estate leases or real estate sales, the relocation of distribution and call
center facilities and severance in an aggregate amount not to exceed $1,400,000
and (vii) any extraordinary non-cash charges of the Borrower and the
Subsidiaries for such period, and minus (b) without duplication and to the
extent included in determining such Consolidated Net Income, (i) any
extraordinary gains of the Borrower and the Subsidiaries for such period and
(ii) write-up of intangibles (including goodwill), all determined on a
consolidated basis in accordance with GAAP. For purposes of calculating
Consolidated EBITDA for any period of four consecutive fiscal quarters for
testing compliance with Sections 6.12 and 6.13 and for determining the
Applicable Rate and compliance with Section 2.11(d), if the Borrower or any
consolidated Subsidiary has made any Permitted Acquisition during such period of
four consecutive fiscal quarters ending on the date on which the most recent
fiscal quarter ended, Consolidated EBITDA for the relevant period shall be
calculated after giving pro forma effect thereto (and any related incurrence or
repayment of Indebtedness, with any new Indebtedness being deemed to be
amortized over the applicable testing period in accordance with its terms) as if
such Permitted Acquisition had occurred on the first day of the four consecutive
fiscal quarter period for which such calculation is being made (including cost
savings to the extent such cost savings would be permitted to be reflected in
pro forma financial information complying with the requirements of GAAP and
Article XI of Regulation S-X under the Securities Exchange Act of 1934, as
amended). Notwithstanding anything to the contrary contained herein,
Consolidated EBITDA shall be deemed to be $19,200,000, $17,600,000 and
$17,600,000, respectively, for the fiscal quarters ended September 27, 2002,
December 27, 2002 and March 28, 2003.
"CONSOLIDATED NET INCOME" means, for any period, the net
income or loss of the Borrower and the Subsidiaries for such period, determined
on a consolidated basis in accordance with GAAP; PROVIDED that there shall be
excluded (a) the income of any Person (other than a Loan Party) in which any
other Person (other than the Borrower or any Subsidiary or any director holding
qualifying shares in compliance with applicable law) owns an Equity Interest,
except to the extent of the amount of dividends or other cash distributions
actually paid to the Borrower or any of the Subsidiaries during such period, and
(b) the income or loss of any Person accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with the Borrower or any Subsidiary
or the date that such Person's assets are acquired by the Borrower or any
Subsidiary.
"CONTROL" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through
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the ability to exercise voting power, by contract or otherwise. "CONTROLLING"
and "CONTROLLED" have meanings correlative thereto.
"DEFAULT" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"DISCLOSED MATTERS" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06.
"DOLLARS" or "$" refers to lawful money of the United States
of America.
"EFFECTIVE DATE" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"ENVIRONMENTAL LAWS" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, Release or threatened Release of any Hazardous
Material or health and safety matters.
"ENVIRONMENTAL LIABILITY" means all liabilities, obligations,
damages, losses, claims, actions, suits, judgments, orders, fines, penalties,
fees, expenses and costs, (including administrative oversight costs, natural
resource damages and remediation costs), whether contingent or otherwise,
arising out of or relating to: (a) compliance or non-compliance with any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the Release or threatened Release of any Hazardous Materials or
(e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.
"EQUITY INTERESTS" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of
9
the Code or Section 302 of ERISA), whether or not waived; (c) the filing
pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA; or (h) the existence of any event or
condition that could reasonably be expected to constitute grounds under ERISA
for the termination of, or the appointment of a trustee to administer, any Plan.
"ESCROW AGREEMENT" means the Escrow Agreement dated as of May
23, 2003, between the Borrower and The Bank of New York, as escrow agent,
entered into in connection with the issuance of the Initial Senior Subordinated
Notes.
"EURODOLLAR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"EVENT OF DEFAULT" has the meaning assigned to such term in
Article VII.
"EXCESS CASH FLOW" means, for any fiscal year, the sum
(without duplication) of:
(a) the Consolidated Net Income for such fiscal year, adjusted
to exclude any gains or losses attributable to Prepayment Events; plus
(b) the depreciation, amortization and other non-cash charges
or losses deducted in determining Consolidated Net Income for such
fiscal year; plus
(c) the amount, if any, by which Net Working Capital decreased
during such fiscal year; minus
(d) the sum of (i) any non-cash gains included in determining
such consolidated net income (or loss) for such fiscal year plus (ii)
the amount, if any, by which Net Working Capital increased during such
fiscal year; minus
(e) the sum of (i) Capital Expenditures for such fiscal year
(except to the extent attributable to the incurrence of Capital Lease
Obligations or otherwise financed by incurring Long-Term Indebtedness)
plus (ii) any consideration paid during such fiscal year to make
Permitted Acquisitions or other capital
10
investments to the extent paid using cash generated in the ordinary
course of the Borrower's business; minus
(f) the aggregate principal amount of Long-Term Indebtedness
repaid or prepaid by the Borrower and the Subsidiaries, on a
consolidated basis, during such fiscal year, excluding (i) Indebtedness
in respect of Revolving Loans and Letters of Credit (unless and to the
extent that there is a corresponding reduction in the Revolving
Commitments), (ii) Term Loans prepaid pursuant to Section 2.11(a), (c)
or (d), and (iii) repayments or prepayments of Long-Term Indebtedness
financed by incurring other Long-Term Indebtedness.
"EXCLUDED PROPERTIES" means the Properties Held for Sale;
PROVIDED that 180 days after the Effective Date, Properties Held for Sale that
have not been sold or that are not then subject to a bona fide contract of sale
shall not be Excluded Properties.
"EXCLUDED TAXES" means, with respect to the Administrative
Agent, any Lender, any Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) net
income or franchise taxes imposed by the United States of America, a state,
locality or other political subdivision thereof or by any jurisdiction (or
political subdivision thereof) under the laws of which such recipient is subject
to such taxes as a result of a present or former connection to such
jurisdiction, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction described in clause
(a) above and (c) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Borrower under Section 2.19(b)), any withholding
tax that (i) is in effect and would apply to amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to this Agreement (or
designates a new lending office), except to the extent that such Foreign Lender
(or its assignor, if any) was entitled, at the time of designation of a new
lending office (or assignment), to receive additional amounts from the Borrower
with respect to any withholding tax pursuant to Section 2.17(a), or (ii) is
attributable to such Foreign Lender's failure to comply with Section 2.17(e).
"EXISTING CREDIT AGREEMENT" means the Amended and Restated
Revolving Credit and Term Loan Agreement dated as of September 29, 2000, by and
among the Borrower (formerly known as Wilmar Industries, Inc.), Fleet National
Bank, as administrative agent, the other financial institutions named therein as
lenders, GMAC Business Credit, LLC, as documentation agent, and First Union
National Bank, as syndication agent.
"EXISTING LETTER OF CREDIT" means each letter of credit
previously issued for the account of, or guaranteed by, the Borrower or a
Subsidiary pursuant to the Existing Credit Agreement that (a) is outstanding on
the Effective Date and (b) is listed on Schedule 2.05.
"EXISTING MEZZANINE INDEBTEDNESS" means the 16% Senior
Subordinated Notes due September 29, 2008 issued by the Borrower and the
Indebtedness represented thereby.
11
"EXISTING PREFERRED STOCK" means preferred stock of the
Borrower issued pursuant to the Certificate of Designation.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day,
the average of the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"FINANCIAL OFFICER" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"FOREIGN LENDER" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"FOREIGN SUBSIDIARY" means any Subsidiary that is organized
under the laws of a jurisdiction other than the United States of America or any
State thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the
United States of America, as in effect from time to time.
"GOVERNMENTAL AUTHORITY" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
or applicant in respect of any letter of credit or letter of guaranty issued to
support such Indebtedness or obligation; PROVIDED, that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business.
12
"HAZARDOUS MATERIALS" means (a) petroleum products and
byproducts, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, radon gas, chlorofluorocarbons and all other ozone-depleting
substances; or (b) any chemical, material, substance, waste, pollutant or
contaminant that is prohibited, limited or regulated by or pursuant to any
Environmental Law.
"INDEBTEDNESS" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid, (d)
all obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (f) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person
of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party or
applicant in respect of letters of credit and letters of guaranty and (j) all
obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INFORMATION MEMORANDUM" means the Confidential Information
Memorandum dated May 2003, relating to the Borrower and the Transactions.
"INITIAL SENIOR SUBORDINATED NOTES" means the Senior
Subordinated Notes due 2011 issued by the Borrower prior to the Effective Date,
in accordance with the terms of the Subordinated Notes Indenture, in the
aggregate principal amount of $200,000,000 and the Indebtedness represented
thereby.
"INTEREST ELECTION REQUEST" means a request by the Borrower to
convert or continue a Revolving Borrowing or Term Borrowing in accordance with
Section 2.07 and substantially in the form of Exhibit C hereto, or such other
form as shall be approved by the Administrative Agent.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan
(including a Swingline Loan), the last Business Day of each March, June,
September and December and (b) with respect to any Eurodollar Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than
three months' duration, each day prior to
13
the last day of such Interest Period that occurs at intervals of three months'
duration after the first day of such Interest Period.
"INTEREST PERIOD" means, with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months (or subject to the availability to each Lender participating in such
Borrowing, nine or twelve months) thereafter, as the Borrower may elect;
PROVIDED, that (a) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (b) any Interest Period that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
"IPO" means a bona fide underwritten initial public offering
of Equity Interests of the Borrower after the Effective Date.
"ISSUING BANK" means, as the context may require, (a) Credit
Suisse First Boston, with respect to Letters of Credit issued by it, (b) Fleet
National Bank and Wachovia Bank, National Association, with respect to Existing
Letters of Credit, (c) any other Revolving Lender that becomes an Issuing Bank
pursuant to Section 2.05(i), with respect to Letters of Credit issued by it, and
(d) any Revolving Lender that has issued an Existing Letter of Credit, and in
each case, its successors in such capacity as provided in Section 2.05(i). An
Issuing Bank may, in its discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of such Issuing Bank, in which case the term "Issuing
Bank" shall include any such Affiliate with respect to Letters of Credit issued
by such Affiliate.
"JOINT VENTURE" means (a) Buyers Access and (b) any joint
venture arrangement (whether structured as a corporation, limited liability
company, partnership or other entity or arrangement), which is not a Subsidiary
but in which the Borrower or any Subsidiary owns or controls any Equity
Interests.
"LC DISBURSEMENT" means a payment made by an Issuing Bank
pursuant to a Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Revolving Lender
at any time shall be its Applicable Percentage of the total LC Exposure at such
time.
14
"LENDERS" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"LETTER OF CREDIT" means any letter of credit (including each
Existing Letter of Credit) issued pursuant to this Agreement.
"LEVERAGE RATIO" means, on any date, the ratio of (a) Total
Indebtedness as of such date to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters of the Borrower ended on such date (or, if such date
is not the last day of a fiscal quarter, ended on the last day of the fiscal
quarter of the Borrower most recently ended prior to such date).
"LIBO RATE" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate per annum determined by the Administrative
Agent at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, by reference to the British Bankers'
Association Interest Settlement Rates (as set forth by any service selected by
the Administrative Agent that has been nominated by the British Bankers'
Association as an authorized information vendor for the purpose of displaying
such rates) as the rate for dollar deposits with a maturity comparable to such
Interest Period. In the event that such rate is not available at such time for
any reason, then the "LIBO RATE" with respect to such Eurodollar Borrowing for
such Interest Period shall be the rate at which dollar deposits of $5,000,000
and for a maturity comparable to such Interest Period are offered by the
principal London office of the bank serving as the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"LOAN DOCUMENTS" means this Agreement, the promissory notes,
if any, executed and delivered pursuant to Section 2.09(e), the Collateral
Agreement and the other Security Documents.
"LOAN PARTIES" means the Borrower and the Subsidiary Loan
Parties.
"LOANS" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
15
"LONG-TERM INDEBTEDNESS" means any Indebtedness that, in
accordance with GAAP, constitutes (or, when incurred, constituted) a long-term
liability.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the condition (financial or otherwise), assets, operations or business of
the Borrower and the Subsidiaries taken as a whole, (b) the ability of any Loan
Party to perform any of its obligations under any Loan Document or (c) the
rights of or benefits available to the Lenders under any Loan Document.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the
Loans and Letters of Credit), or obligations in respect of one or more Swap
Agreements, of any one or more of the Borrower and the Subsidiaries in an
aggregate principal amount exceeding $5,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Borrower
or any Subsidiary in respect of any Swap Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Subsidiary would be required to pay if such Swap Agreement were
terminated at such time.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MORTGAGE" means a mortgage, deed of trust, assignment of
leases and rents, leasehold mortgage or other security document granting a Lien
on any Mortgaged Property to secure the Obligations. Each Mortgage shall be
satisfactory in form and substance to the Collateral Agent.
"MORTGAGED PROPERTY" means, initially, each parcel of real
property and the improvements thereon owned by a Loan Party and identified on
Schedule 1.01(a), and includes each other parcel of real property and
improvements thereon with respect to which a Mortgage is granted pursuant to
Section 5.12 or 5.13, but excludes the Excluded Properties.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"NET PROCEEDS" means, with respect to any event (a) the cash
proceeds received in respect of such event including (i) any cash received in
respect of any non-cash proceeds, but only as and when received, (ii) in the
case of a casualty, insurance proceeds, and (iii) in the case of a condemnation
or similar event, condemnation awards and similar payments, net of (b) the sum
of (i) all reasonable fees and out-of-pocket expenses paid by the Borrower and
the Subsidiaries to third parties (other than Affiliates) in connection with
such event, (ii) in the case of a sale, transfer or other disposition of an
asset (including pursuant to a sale and leaseback transaction or a casualty or a
condemnation or similar proceeding), the amount of all payments required to be
made by the Borrower and the Subsidiaries as a result of such event to repay
Indebtedness (other than Loans) secured by such asset or otherwise subject to
mandatory prepayment as a result of such event, and (iii) the amount of all
taxes paid (or reasonably estimated to be payable) by the Borrower and the
Subsidiaries, and the amount of any reserves
16
established by the Borrower and the Subsidiaries to fund contingent liabilities
reasonably estimated to be payable, in each case during the year that such event
occurred or the next succeeding year and that are directly attributable to such
event (as determined reasonably and in good faith by the chief financial officer
of the Borrower).
"NET WORKING CAPITAL" means, at any date, (a) the consolidated
current assets of the Borrower and the Subsidiaries, as of such date (excluding
cash and Permitted Investments) minus (b) the consolidated current liabilities
of the Borrower and the Subsidiaries as of such date (excluding current
liabilities in respect of Indebtedness). Net Working Capital at any date may be
a positive or negative number. Net Working Capital increases when it becomes
more positive or less negative and decreases when it becomes less positive or
more negative.
"NON-CONSENTING LENDER" has the meaning assigned to such term
in Section 9.02(b).
"OBLIGATIONS" has the meaning assigned to such term in the
Collateral Agreement.
"OTHER TAXES" means any and all present or future recording,
stamp, documentary, excise, transfer, sales, property or similar taxes, charges
or levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PARTICIPANT" has the meaning set forth in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"PERFECTION CERTIFICATE" means a certificate in the form of
Exhibit F or any other form approved by the Collateral Agent.
"PERMITTED ACQUISITION" means any acquisition by the Borrower
or a wholly owned Subsidiary Loan Party of all the outstanding Equity Interests
in, all or substantially all the assets of, or all or substantially all the
assets constituting a division or line of business of, a Person if (a) such
acquisition was not preceded by, or consummated pursuant to, a hostile offer,
(b) no Default has occurred and is continuing or would result therefrom, (c) all
transactions related thereto are consummated in accordance with applicable laws,
(d) all actions required to be taken with respect to such acquired or newly
formed Subsidiary or assets under Sections 5.12 and 5.13 shall have been taken,
(e) the Borrower and the Subsidiaries, taken as a whole, are in compliance, on a
Pro Forma Basis, with the covenants contained in Sections 6.12 and 6.13
recomputed as of the last day of the most recently ended fiscal quarter of the
Borrower for which financial statements are available, (f) the business of such
Person or such assets, as the case may be, constitute a business permitted by
Section 6.03(b), and (g) the Borrower has delivered to the Administrative Agent
an officers' certificate to the effect set forth in clauses (a), (b), (c), (d),
(e) and (f) above, together with all relevant financial information for the
Person or assets to be acquired.
17
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes, fees, assessments and
other governmental charges that are not yet due or are being contested
in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 45 days or are being contested in compliance with
Section 5.05;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way, minor
defects or irregularities of title and similar encumbrances on real
property imposed by law or arising in the ordinary course of business
that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the
ordinary conduct of business of the Borrower or any Subsidiary; and
(g) landlords' and lessors' and other like Liens in respect of
rent not in default;
PROVIDED that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, a rating of at least A1 by S&P or P-1 by ▇▇▇▇▇'▇;
18
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above; and
(e) money market funds that (i) comply with the criteria set
forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as
amended, (ii) are rated AAA by S&P and Aaa by ▇▇▇▇▇'▇ and (iii) have
portfolio assets of at least $5,000,000,000.
"PERMITTED INVESTORS" means Parthenon Capital, Inc., ▇.▇.
▇▇▇▇▇▇ Partners LLC, General Motors Investment Management Corporation, ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and any
Affiliate of the foregoing.
"PERSON" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower
has any liability or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"PREPAYMENT EVENT" means:
(a) any sale, transfer or other disposition (including
pursuant to a sale and leaseback transaction) of any property or asset
of the Borrower or any Subsidiary, other than dispositions described in
clauses (a), (b), (d) and (e) of Section 6.05; or
(b) any casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar proceeding
of, any property or asset of the Borrower or any Subsidiary, with a
fair value immediately prior to such event equal to or greater than
$1,000,000; or
(c) the issuance by the Borrower, any Subsidiary or any
holding company of the Borrower of any Equity Interests (other than
common stock or Qualified Preferred Stock issued to Permitted
Investors) in a bona fide underwritten public offering at any time when
the Leverage Ratio at the end of the most recently ended fiscal quarter
is greater than or equal to 3.00 to 1.00; or
19
(d) the incurrence by the Borrower or any Subsidiary of any
Indebtedness, other than Indebtedness permitted under Section 6.01.
"PRICING CERTIFICATE" means a certificate signed by a
Financial Officer, certifying the Leverage Ratio for any period of four fiscal
quarters for which the Leverage Ratio is calculated.
"PRIME RATE" means the rate of interest per annum determined
from time to time by Credit Suisse First Boston as its prime rate in effect for
dollars at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly announced
as being effective.
"PRO FORMA BASIS" means, with respect to the calculation of a
financial covenant in connection with an acquisition, that such calculation
shall give pro forma effect to such acquisition (and any related incurrence or
repayment of Indebtedness, with any new Indebtedness being deemed to be
amortized over the applicable testing period in accordance with its terms) as if
it occurred on the first day of the four consecutive fiscal quarter period for
which such calculation is being made (including cost savings to the extent such
cost savings would be permitted to be reflected in pro forma financial
information complying with the requirements of GAAP and Article XI of Regulation
S-X under the Securities Exchange Act of 1934, as amended).
"PRO FORMA LEVERAGE RATIO" means, in connection with any
Permitted Acquisition, the Leverage Ratio calculated on a Pro Forma Basis for
the most recently ended period of four consecutive fiscal quarters for which
financial statements are available.
"PROPERTIES HELD FOR SALE" shall mean owned properties and the
improvements thereon owned by the Borrower and the Subsidiaries, which
properties are set forth on Schedule 1.01(b).
"PROPOSED CHANGE" has the meaning assigned to such term in
Section 9.02(b).
"QUALIFIED PREFERRED STOCK" means, with respect to the
Borrower, (a) preferred stock of the Borrower issued on substantially the same
terms as the Existing Preferred Stock and (b) any other preferred stock of the
Borrower that (i) does not require cash dividends to be paid on or prior to the
date that is 180 days after the Term Loan Maturity Date, (ii) is not mandatorily
redeemable pursuant to a sinking fund obligation or otherwise prior to the date
that is 180 days after the Term Loan Maturity Date, (iii) does not contain any
maintenance covenants, other covenants adverse to the Lenders or remedies (other
than voting rights and increases in dividend rates) and (iv) is convertible only
into common stock or other securities that would constitute Qualified Preferred
Stock.
"REGISTER" has the meaning set forth in Section 9.04.
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"RELATED PARTIES" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"RELEASE" means any release, spill, emission, leaking,
dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching
or migration into or through the environment or within or upon any building,
structure, facility or fixture.
"REQUIRED LENDERS" means, at any time, Lenders having
Revolving Exposures, Term Loans and unused Commitments representing more than
50% of the sum of the total Revolving Exposures, outstanding Term Loans and
unused Commitments at such time.
"RESTRICTED PAYMENT" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in the Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Equity Interests in the Borrower or any Subsidiary or any
option, warrant or other right to acquire any such Equity Interests in the
Borrower or any Subsidiary.
"RETAINED EQUITY PROCEEDS" means, with respect to any fiscal
year ended after the Effective Date, the amount of Net Proceeds received by the
Borrower or any Subsidiary as a result of any issuance of Equity Interests that
the Borrower was not required to use to prepay the Term Loans pursuant to
Section 2.11(c).
"RETAINED EXCESS CASH FLOW" means, with respect to any fiscal
year ended after the Effective Date, the amount of Excess Cash Flow for such
fiscal year that the Borrower was not required to use to prepay the Term Loans
pursuant to Section 2.11(d).
"REVOLVING AVAILABILITY PERIOD" means the period from and
including the Effective Date to but excluding the earlier of the Revolving
Maturity Date and the date of termination of the Revolving Commitments.
"REVOLVING COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum possible aggregate amount of such Lender's
Revolving Exposure hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.08 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Revolving Commitment is set forth on Schedule
2.01, or in the Assignment and Assumption pursuant to which such Lender shall
have assumed its Revolving Commitment, as applicable. The initial aggregate
amount of the Lenders' Revolving Commitments is $65,000,000.
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"REVOLVING EXPOSURE" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and its LC Exposure and Swingline Exposure at such time.
"REVOLVING LENDER" means a Lender with a Revolving Commitment
or, if the Revolving Commitments have terminated or expired, a Lender with
Revolving Exposure.
"REVOLVING LOAN" means a Loan made pursuant to clause (b) of
Section 2.01.
"REVOLVING MATURITY DATE" means May 31, 2008.
"S&P" means Standard & Poor's Ratings Group, Inc.
"SEC" means the Securities and Exchange Commission or any
Governmental Authority succeeding to any of its principal functions.
"SECURITY DOCUMENTS" means the Collateral Agreement, the
Mortgages and each other security agreement or other instrument or document
executed and delivered pursuant to Section 5.12 or 5.13 to secure any of the
Obligations.
"SENIOR LEVERAGE RATIO" means, on any date, the ratio of (a)
Total Senior Indebtedness as of such date to (b) Consolidated EBITDA for the
period of four consecutive fiscal quarters of the Borrower ended on such date
(or, if such date is not the last day of a fiscal quarter, ended on the last day
of the fiscal quarter of the Borrower most recently ended prior to such date).
"SENIOR SUBORDINATED NOTES" means (a) the Initial Senior
Subordinated Notes and (b) the Additional Senior Subordinated Notes, if any.
"SHAREHOLDERS AGREEMENT" means the amended and restated
shareholders' agreement dated as of September 29, 2000, among the Borrower and
certain shareholders of the Borrower.
"SPONSORS" means Parthenon Capital, Inc., ▇.▇. ▇▇▇▇▇▇ Partners
LLC and their respective Controlled Affiliates.
"STATUTORY RESERVE RATE" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the bank serving as the
Administrative Agent is subject with respect to the Adjusted LIBO Rate, for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to
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time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"SUBORDINATED DEBT" means the Senior Subordinated Notes and
the Indebtedness represented thereby.
"SUBORDINATED DEBT DOCUMENTS" means the Subordinated Notes
Indenture and all other instruments, agreements and other documents evidencing
or governing the Subordinated Debt or providing for any Guarantee or other right
in respect thereof.
"SUBORDINATED NOTES INDENTURE" means the Indenture dated as of
May 23, 2003, among the Borrower, the Subsidiaries listed therein and The Bank
of New York, as trustee, in respect of the Senior Subordinated Notes.
"SUBORDINATED PROMISSORY NOTE" means the 4% Nonrecourse
Subordinated Promissory Note due 2010 to be issued by Glenwood Acquisition LLC,
in the aggregate principal amount of $3,275,000.
"SUBSIDIARY" means, with respect to any Person (the "PARENT")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the partnership
interests are, as of such date, owned, controlled or held.
"SUBSIDIARY" means any subsidiary of the Borrower. For the
avoidance of doubt, Buyers Access shall not be deemed a Subsidiary.
"SUBSIDIARY LOAN PARTY" means any wholly owned Subsidiary that
is not a Foreign Subsidiary.
"SWAP AGREEMENT" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these transactions; PROVIDED that
no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.
"SWINGLINE EXPOSURE" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.
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"SWINGLINE LENDER" means Credit Suisse First Boston, in its
capacity as lender of Swingline Loans hereunder.
"SWINGLINE LOAN" means a Loan made pursuant to Section 2.04.
"SYNDICATION AGENT" means JPMorgan Chase Bank.
"TAXES" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TERM LOAN" means a Loan made pursuant to clause (a) of
Section 2.01.
"TERM LOAN COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Term Loan hereunder on the
Effective Date, expressed as an amount representing the maximum principal amount
of the Term Loan to be made by such Lender hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Term Loan
Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption
pursuant to which such Lender shall have assumed its Term Loan Commitment, as
applicable. The initial aggregate amount of the Lenders' Term Loan Commitments
is $140,000,000.
"TERM LOAN LENDER" means a Lender with a Term Loan Commitment
or an outstanding Term Loan.
"TERM LOAN MATURITY DATE" means November 30, 2009.
"TOTAL INDEBTEDNESS" means, as of any date, the sum of (a) the
aggregate principal amount of Indebtedness of the Borrower and the Subsidiaries
outstanding as of such date, in the amount that would be reflected on a balance
sheet prepared as of such date on a consolidated basis in accordance with GAAP,
plus (b) the aggregate principal amount of Indebtedness of the Borrower and the
Subsidiaries outstanding as of such date that is not required to be reflected on
a balance sheet in accordance with GAAP, determined on a consolidated basis;
PROVIDED that, for purposes of clause (b) above, the term "Indebtedness" shall
not include (i) contingent obligations of the Borrower or any Subsidiary as an
account party in respect of any letter of credit or letter of guaranty unless
such letter of credit or letter of guaranty supports an obligation that
constitutes Indebtedness and (ii) Indebtedness permitted by clause (xi) of
Section 6.01(a) to the extent the sole recourse with respect to such
Indebtedness is to the Borrower's Equity Interests in Buyers Access.
"TOTAL SENIOR INDEBTEDNESS" means, as of any date, (a) Total
Indebtedness as of such date minus (b) the portion of Total Indebtedness as of
such date represented by the Subordinated Debt.
"TRANSACTIONS" means (a) the execution, delivery and
performance by each Loan Party of the Loan Documents to which it is to be a
party, the borrowing of Loans,
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the use of the proceeds thereof and the issuance of Letters of Credit hereunder
and (b) the execution, delivery and performance by each Loan Party of the
Subordinated Debt Documents to which it is to be a party, the issuance of the
Initial Senior Subordinated Notes and the use of the proceeds thereof.
"TYPE", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For
purposes of this Agreement, Loans may be classified and referred to by Class
(E.G., a "Revolving Loan") or by Type (E.G., a "Eurodollar Loan") or by Class
and Type (E.G., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (E.G., a "Revolving Borrowing") or by Type
(E.G., a "Eurodollar Borrowing") or by Class and Type (E.G., a "Eurodollar
Revolving Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms
herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation". The word "will" shall be construed to have the same meaning and
effect as the word "shall". Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; PROVIDED
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such
25
notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and
conditions set forth herein, each Lender agrees (a) to make a Term Loan to the
Borrower on the Effective Date in a principal amount not exceeding its Term Loan
Commitment and (b) to make Revolving Loans to the Borrower from time to time
during the Revolving Availability Period in an aggregate principal amount that
will not result in such Lender's Revolving Exposure exceeding such Lender's
Revolving Commitment; PROVIDED that the aggregate amount of Revolving Loans made
on the Effective Date may not exceed $10,000,000. Within the foregoing limits
and subject to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Revolving Loans. Amounts repaid in respect of Term
Loans may not be reborrowed.
SECTION 2.02. LOANS AND BORROWINGS. (a) Each Loan (other
than a Swingline Loan) shall be made as part of a Borrowing consisting of Loans
of the same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; PROVIDED that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith; PROVIDED that all Revolving
Borrowings made on the Effective Date must be made as ABR Borrowings. Each
Swingline Loan shall be an ABR Loan. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; PROVIDED that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 and not less than $2,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $500,000 and not less than $1,000,000.
Each Swingline Loan shall be in an amount that is an integral multiple of
$250,000 and not less than $500,000. Borrowings of more than one Type and Class
may be outstanding at the same time; PROVIDED that there shall not at any time
be more than a total of ten Eurodollar Borrowings outstanding.
26
Notwithstanding anything to the contrary in this Section 2.02(c), an ABR
Revolving Borrowing or Swingline Loan may be in an aggregate amount that is (i)
equal to the entire unused balance of the total Revolving Commitments or (ii)
required to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.05(e).
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date or Term Loan Maturity Date, as applicable.
SECTION 2.03. REQUESTS FOR BORROWINGS. To request a
Revolving Borrowing or Term Borrowing, the Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing (unless otherwise waived
by the Administrative Agent) or (b) in the case of an ABR Borrowing, not later
than 11:00 a.m., New York City time, one Business Day before the date of the
proposed Borrowing; PROVIDED that any such notice of an ABR Revolving Borrowing
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e) may be given not later than 10:00 a.m., New York City time, on the date
of the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request signed by the Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving
Borrowing or Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business
Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period";
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.06; and
(vii) in the case of a Revolving Borrowing, whether all or a
portion of the proceeds of such Borrowing will be used to finance
Permitted Acquisitions and, after giving effect to such Borrowing, the
aggregate principal amount of outstanding Revolving Loans used to
finance Permitted Acquisitions (which shall be determined as set forth
in Section 2.11(f)).
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If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. SWINGLINE LOANS. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower from time to time during the Revolving Availability Period, in
an aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline Loans exceeding
$10,000,000 or (ii) the aggregate amount of the Lenders' Revolving Exposures
exceeding the total amount of the Lenders' Revolving Commitments; PROVIDED that
the Swingline Lender shall not be required to make a Swingline Loan to refinance
an outstanding Swingline Loan. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Swingline Lender of such request by telephone (confirmed by telecopy), not later
than 12:00 noon, New York City time, on the day of a proposed Swingline Loan.
Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day), amount of the requested Swingline Loan, and the
wire transfer instructions for the account of the Borrower to which proceeds of
the Swingline Loan are to be disbursed. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the account of
the Borrower specified in the notice (or, in the case of a Swingline Loan made
to finance the reimbursement of an LC Disbursement as provided in Section
2.05(e), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York
City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such notice
shall specify the aggregate amount of Swingline Loans in which Revolving Lenders
will participate. Promptly upon receipt of such notice, the Administrative Agent
will give notice thereof to each Revolving Lender, specifying in such notice
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each
Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Administrative Agent, for the account of
the Swingline Lender, such Lender's Applicable Percentage of such Swingline Loan
or Loans. Each Revolving Lender acknowledges and agrees that its obligation to
acquire participations in Swingline Loans pursuant to this paragraph is absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Revolving
Lender shall
28
comply with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.06 with respect to
Loans made by such Lender (and Section 2.06 shall apply, MUTATIS MUTANDIS, to
the payment obligations of the Revolving Lenders), and the Administrative Agent
shall promptly pay to the Swingline Lender the amounts so received by it from
the Revolving Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Revolving
Lenders that shall have made their payments pursuant to this paragraph and to
the Swingline Lender, as their interests may appear; PROVIDED that any such
payment so remitted shall be repaid to the Swingline Lender or to the
Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to the Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof.
SECTION 2.05. LETTERS OF CREDIT. (a) GENERAL. Upon
satisfaction of the conditions specified in Section 4.02 on the Effective Date,
each Existing Letter of Credit will, automatically without any action on the
part of any Person, be deemed to be a Letter of Credit issued hereunder for all
purposes of this Agreement and the other Loan Documents. In addition, subject to
the terms and conditions set forth herein, the Borrower may request the issuance
of Letters of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the applicable Issuing Bank, at any time and from time
to time during the Revolving Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, any Issuing
Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to
the applicable Issuing Bank (which may be any Issuing Bank selected by the
Borrower if there is more than one Issuing Bank, except that the Issuing Banks
in respect of Existing Letters of Credit shall not be required to issue
additional Letters of Credit or renew or extend an Existing Letter of Credit
unless agreed by them) and the Administrative Agent (reasonably in advance of
the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c)
of this Section), the amount of such Letter of Credit, the name and
29
address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. If requested
by the applicable Issuing Bank, the Borrower also shall submit a letter of
credit application on such Issuing Bank's standard form in connection with any
request for a Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension
of each Letter of Credit the Borrower shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or extension (i)
the LC Exposure shall not exceed $20,000,000 and (ii) the aggregate amount of
the Lenders' Revolving Exposures shall not exceed the total amount of the
Lenders' Revolving Commitments.
(c) EXPIRATION DATE. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after the
date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Maturity Date; PROVIDED that
any standby Letter of Credit may contain customary automatic renewal provisions
agreed upon by the Borrower and the applicable Issuing Bank pursuant to which
the expiration date is automatically extended by a specific time period (but not
to a date later than the date set forth in clause (ii) above) unless the
applicable Issuing Bank gives notice to the beneficiary of such Letter of Credit
at least 60 days prior to the expiration date of such Letter of Credit.
(d) PARTICIPATIONS. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the applicable Issuing Bank or the Lenders,
the applicable Issuing Bank hereby grants to each Revolving Lender, and each
Revolving Lender hereby acquires from such Issuing Bank, a participation in such
Letter of Credit equal to such Lender's Applicable Percentage of the aggregate
amount available to be drawn under such Letter of Credit. In consideration and
in furtherance of the foregoing, each Revolving Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the applicable Issuing Bank, such Lender's Applicable Percentage of each LC
Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the
date due as provided in paragraph (e) of this Section, or of any reimbursement
payment required to be refunded to the Borrower for any reason. Each Revolving
Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
(e) REIMBURSEMENT. If an Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 3:00 p.m., New York City time, on the date that such
LC Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by the
30
Borrower prior to such time on such date, then not later than 3:00 p.m., New
York City time, on (i) the Business Day that the Borrower receives such notice,
if such notice is received prior to 10:00 a.m., New York City time, on the day
of receipt, or (ii) the Business Day immediately following the day that the
Borrower receives such notice, if such notice is not received prior to such time
on the day of receipt; PROVIDED that, the Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section
2.03 or 2.04 that such payment be financed with an ABR Revolving Borrowing or
Swingline Loan in an equivalent amount and, to the extent so financed, the
Borrower's obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing or Swingline Loan. If the Borrower fails
to make such payment when due, the Administrative Agent shall notify each
Revolving Lender of the applicable LC Disbursement, the payment then due from
the Borrower in respect thereof and such Lender's Applicable Percentage thereof.
Promptly following receipt of such notice, each Revolving Lender shall pay to
the Administrative Agent its Applicable Percentage of the payment then due from
the Borrower, in the same manner as provided in Section 2.06 with respect to
Loans made by such Lender (and Section 2.06 shall apply, MUTATIS MUTANDIS, to
the payment obligations of the Revolving Lenders), and the Administrative Agent
shall promptly pay to the applicable Issuing Bank the amounts so received by it
from the Revolving Lenders. Promptly following receipt by the Administrative
Agent of any payment from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the applicable Issuing
Bank or, to the extent that Revolving Lenders have made payments pursuant to
this paragraph to reimburse such applicable Issuing Bank, then to such Lenders
and the applicable Issuing Bank as their interests may appear. Any payment made
by a Revolving Lender pursuant to this paragraph to reimburse the applicable
Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving
Loans or a Swingline Loan as contemplated above) shall not constitute a Loan and
shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(f) OBLIGATIONS ABSOLUTE. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any
draft or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by an Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
the Administrative Agent, the Lenders nor any Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other
31
communication under or relating to any Letter of Credit (including any document
required to make a drawing thereunder), any error in interpretation of technical
terms or any consequence arising from causes beyond the control of any Issuing
Bank; PROVIDED that the foregoing shall not be construed to excuse the
applicable Issuing Bank from liability to the Borrower to the extent of any
direct damages (as opposed to consequential or punitive damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by such Issuing Bank's
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or wilful
misconduct on the part of an Issuing Bank (as finally determined by a court of
competent jurisdiction), such Issuing Bank shall be deemed to have exercised
care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the applicable Issuing Bank may, in its
sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) DISBURSEMENT PROCEDURES. An Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The applicable Issuing Bank shall
promptly notify the Administrative Agent and the Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether such Issuing Bank
has made or will make an LC Disbursement thereunder; PROVIDED that any failure
to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the applicable Issuing Bank and the Revolving Lenders
with respect to any such LC Disbursement in accordance with Section 2.05(e).
(h) INTERIM INTEREST. If an Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
PROVIDED that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.13(c) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
applicable Issuing Bank, except that interest accrued on and after the date of
payment by any Revolving Lender pursuant to paragraph (e) of this Section to
reimburse such Issuing Bank shall be for the account of such Lender to the
extent of such payment.
(i) ISSUING BANKS. Any Issuing Bank may be terminated, and any
existing Revolving Lender may become an Issuing Bank, in each case at any time
by written agreement among the Borrower, the Administrative Agent and the
terminated Issuing Bank or additional Issuing Bank (as applicable). The
Administrative Agent shall notify the Lenders of any such additional Issuing
Bank. At the time any such termination shall
32
become effective, the Borrower shall pay all unpaid fees accrued for the account
of the terminated Issuing Bank pursuant to Section 2.12(b). From and after the
effective date of any such addition of an Issuing Bank, the additional Issuing
Bank shall have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it. After the termination
of an Issuing Bank hereunder, the terminated Issuing Bank shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing
Bank under this Agreement with respect to Letters of Credit issued by it prior
to such termination, but shall not be required to issue additional Letters of
Credit.
(j) CASH COLLATERALIZATION. If any Event of Default shall
occur and be continuing, on the Business Day that the Borrower receives notice
from the Administrative Agent or the Required Lenders (or, if the maturity of
the Loans has been accelerated, Revolving Lenders with LC Exposures representing
greater than 50% of the total LC Exposures) demanding the deposit of cash
collateral pursuant to this paragraph, the Borrower shall deposit in an account
with the Administrative Agent, in the name of the Administrative Agent and for
the benefit of the Lenders, an amount in cash equal to the LC Exposures as of
such date plus any accrued and unpaid interest thereon; PROVIDED that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (h) or (i) of Article VII. The
Borrower also shall deposit cash collateral pursuant to this paragraph as and to
the extent required by Section 2.11(b). Each such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent shall
have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrower's risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the applicable Issuing Bank for
LC Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Revolving Lenders with LC
Exposures representing greater than 50% of the total LC Exposures), be applied
to satisfy other obligations of the Borrower under this Agreement. If the
Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business
Days after all Events of Default have been cured or waived.
SECTION 2.06. FUNDING OF BORROWINGS. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; PROVIDED that Swingline Loans shall be made as
provided in Section 2.04. The Administrative Agent will make such Loans
available to the Borrower by promptly
33
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in New York City and designated by the
Borrower in the applicable Borrowing Request; PROVIDED that ABR Revolving Loans
and Swingline Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e) shall be remitted by the Administrative Agent to the
applicable Issuing Bank.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing as of the date of such Borrowing.
SECTION 2.07. INTEREST ELECTIONS. (a) Each Revolving
Borrowing and Term Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type
or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section; provided that
the Eurodollar Borrowings made on the Effective Date shall have an Interest
Period of one month's duration. The Borrower may elect different options with
respect to different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. This Section shall not apply to Swingline
Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower
were requesting a Revolving Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request signed by the Borrower.
34
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02 and
paragraph (e) of this Section:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing (i) no outstanding Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION 2.08. TERMINATION AND REDUCTION OF COMMITMENTS.
(a) Unless previously terminated, (i) the Term Loan Commitments shall terminate
at 5:00 p.m., New York City time, on the Effective Date and (ii) the Revolving
Commitments shall terminate on the Revolving Maturity Date.
(b) The Borrower may at any time terminate, or from time to
time reduce, the Commitments of any Class; PROVIDED that (i) each reduction of
the Commitments of any Class shall be in an amount that is an integral multiple
of $5,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving
35
Loans in accordance with Section 2.11, the aggregate amount of the Lenders'
Revolving Exposures would exceed the total amount of the Lenders' Revolving
Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; PROVIDED that a notice
of termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent, which shall promptly notify the Lenders, on or
prior to the specified effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments of any Class shall be permanent.
Each reduction of the Commitments of any Class shall be made ratably among the
Lenders in accordance with their respective Commitments of such Class.
SECTION 2.09. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan of such Lender on the Revolving Maturity Date, (ii) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Term Loan of such Lender as provided in Section 2.10 and (iii) to
the Swingline Lender the then unpaid principal amount of each Swingline Loan on
the Revolving Maturity Date; PROVIDED that on each date that a Revolving
Borrowing is made, the Borrower shall repay all Swingline Loans that were
outstanding on the date such Borrowing was requested.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be PRIMA FACIE evidence of the
existence and amounts of the obligations recorded therein; PROVIDED that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
36
(e) Any Lender may request that Loans of any Class made by it
be evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.10. AMORTIZATION OF TERM LOANS. (a) Subject to
adjustment pursuant to paragraph (c) of this Section, the Borrower shall repay
Term Borrowings on each date set forth below in the aggregate principal amount
set forth opposite such date:
DATE AMOUNT
---- ------
September 30, 2003 $1,750,000
December 31, 2003 1,750,000
March 31, 2004 1,750,000
June 30, 2004 1,750,000
September 30, 2004 1,750,000
December 31, 2004 1,750,000
March 31, 2005 1,750,000
June 30, 2005 1,750,000
September 30, 2005 2,625,000
December 30, 2005 2,625,000
March 31, 2006 2,625,000
June 30, 2006 2,625,000
September 29, 2006 3,500,000
December 29, 2006 3,500,000
March 30, 2007 3,500,000
June 29, 2007 3,500,000
September 28, 2007 3,500,000
December 31, 2007 3,500,000
March 31, 2008 3,500,000
June 30, 2008 3,500,000
September 30, 2008 5,250,000
December 31, 2008 5,250,000
37
DATE AMOUNT
---- ------
March 31, 2009 5,250,000
June 30, 2009 5,250,000
November 30, 2009 66,500,000
(b) To the extent not previously paid, all Term Loans shall be
due and payable on the Term Loan Maturity Date.
(c) Any prepayment of a Term Borrowing shall be applied (i) in
the case of prepayments made pursuant to Section 2.11(a), to reduce the
remaining subsequent scheduled repayments of the Term Borrowings pursuant to
this Section in direct order of maturity and (ii) in the case of prepayments
made pursuant to Section 2.11(c), Section 2.11(d) or Section 6.01(a)(viii), to
reduce the subsequent scheduled repayments of the Term Borrowings to be made
pursuant to this Section ratably.
(d) Prior to any repayment of any Term Borrowings hereunder,
the Borrower shall select the Borrowing or Borrowings to be repaid and shall
notify the Administrative Agent by telephone (confirmed by telecopy) of such
selection not later than 11:00 a.m., New York City time, (i) three Business Days
before the scheduled date of such repayment in the case of Eurodollar Borrowings
or (ii) one Business Day before the scheduled date of repayment in the case of
ABR Borrowings. Each repayment of a Borrowing shall be applied ratably to the
Loans included in the repaid Borrowing. Repayments of Term Borrowings shall be
accompanied by accrued interest on the amount repaid.
SECTION 2.11. PREPAYMENT OF LOANS. (a) The Borrower shall
have the right at any time and from time to time to prepay any Borrowing in
whole or in part, subject to the requirements of this Section.
(b) In the event and on such occasion that the aggregate
amount of the Lenders' Revolving Exposures exceeds the total amount of the
Lenders' Revolving Commitments, the Borrower shall prepay Revolving Borrowings
or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash
collateral in an account with the Administrative Agent pursuant to Section
2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds
are received by or on behalf of the Borrower or any Subsidiary in respect of any
Prepayment Event, the Borrower shall, within three Business Days after such Net
Proceeds are received, prepay Term Borrowings in an aggregate amount equal to
(x) in the case of a prepayment event described in clause (c) of the definition
of the term "Prepayment Event", 50% of such Net Proceeds and (y) in the case of
all other Prepayment Events, 100% of such Net Proceeds; PROVIDED that, in the
case of any event described in clauses (a) or (b) of the definition of the term
"Prepayment Event", if the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer to the effect that the Borrower
38
and the Subsidiaries intend to apply the Net Proceeds from such event (or a
portion thereof specified in such certificate), within 360 days after receipt of
such Net Proceeds, to acquire real property, equipment or other tangible assets
to be used in the business of the Borrower and the Subsidiaries, and certifying
that no Default has occurred and is continuing, then no prepayment shall be
required pursuant to this paragraph in respect of the Net Proceeds in respect of
such event (or the portion of such Net Proceeds specified in such certificate,
if applicable) except to the extent of any such Net Proceeds therefrom that have
not been so applied or committed to be applied pursuant to a bona fide contract
by the end of such 360-day period, at which time a prepayment shall be required
in an amount equal to such Net Proceeds that have not been so applied.
(d) Commencing with the fiscal year ending December 26, 2003,
the Borrower shall prepay Term Borrowings in an aggregate amount equal to (i)
the excess of (A) 75% of Excess Cash Flow over (B) prepayments of Term Loans
under Section 2.11(a) during such fiscal year, for any fiscal year for which the
Leverage Ratio at the end of such fiscal year is greater than or equal to 3.75
to 1.00, (ii) the excess of (A) 50% of Excess Cash Flow over (B) prepayments of
Term Loans under Section 2.11(a) during such fiscal year, for any fiscal year
for which the Leverage Ratio at the end of such fiscal year is greater than or
equal to 2.50 to 1.00 and less than 3.75 to 1.00 and (iii) 0% of Excess Cash
Flow for any fiscal year for which the Leverage Ratio is less than 2.50 to 1.00.
Each prepayment pursuant to this paragraph shall be made on or before the date
on which financial statements are delivered pursuant to Section 5.01 with
respect to the fiscal year for which Excess Cash Flow is being calculated (and
in any event within 90 days after the end of such fiscal year).
(e) Prior to any optional or mandatory prepayment of
Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to
be prepaid and shall specify such selection in the notice of such prepayment
pursuant to paragraph (f) of this Section.
(f) The Borrower shall notify the Administrative Agent (and,
in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment; PROVIDED that, if a
notice of optional prepayment is given in connection with a conditional notice
of termination of the Revolving Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt of any such
notice (other than a notice relating solely to Swingline Loans), the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that
39
would be permitted in the case of an advance of a Borrowing of the same Type as
provided in Section 2.02, except as necessary to apply fully the required amount
of a mandatory prepayment. Each prepayment of a Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing, PROVIDED that
prepayments of Revolving Borrowings shall be deemed to be applied first, to
Revolving Borrowings used for purposes other than to finance Permitted
Acquisitions and second, to Revolving Borrowings used to finance Permitted
Acquisitions. Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.13.
SECTION 2.12. FEES. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee,
which shall accrue at a rate equal to 0.50% per annum on the average daily
unused amount of each Revolving Commitment of such Lender during the period from
and including the Effective Date to but excluding the date on which the
Revolving Commitments terminate. Accrued commitment fees shall be payable in
arrears on the last Business Day of each March, June, September and December and
on the date on which such Commitments terminate, commencing on the first such
date to occur after the date hereof. All commitment fees shall be computed on
the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). For purposes
of computing commitment fees with respect to Revolving Commitments, a Revolving
Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Revolving Loans and LC Exposure of such Lender (and the Swingline
Exposure of such Lender shall be disregarded for such purpose).
(b) The Borrower agrees to pay (i) to the Administrative Agent
for the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate used to determine the interest rate applicable to Eurodollar Revolving
Loans on the average daily amount of such Lender's LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later of the date on
which such Lender's Revolving Commitment terminates and the date on which such
Lender ceases to have any LC Exposure, and (ii) to the applicable Issuing Bank a
fronting fee, which shall accrue at the rate or rates per annum separately
agreed upon between the Borrower and such Issuing Bank on the average daily
amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Revolving Commitments and the date on which there ceases to be any LC Exposure,
as well as the applicable Issuing Bank's standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. Participation fees and fronting fees shall be payable on
the last Business Day of each March, June, September and December, commencing on
the first such date to occur after the Effective Date; PROVIDED that all such
fees shall be payable on the date on which the Revolving Commitments terminate
and any such fees accruing after the date on which the Revolving Commitments
terminate shall be payable on demand. Any other fees payable to any Issuing Bank
pursuant to this paragraph shall be payable within 10 days after demand. All
participation fees and fronting fees shall be computed on the basis of a year
40
of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent (or to the
applicable Issuing Bank, in the case of fees payable to it) for distribution, in
the case of commitment fees and participation fees, to the Lenders entitled
thereto. Fees paid shall not be refundable under any circumstances.
SECTION 2.13. INTEREST. (a) The Loans comprising each ABR
Borrowing (including each Swingline Loan) shall bear interest at the Alternate
Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other amount, 2%
plus the rate applicable to ABR Revolving Loans as provided in paragraph (a) of
this Section.
(d) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Revolving Commitments; PROVIDED that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The
41
applicable Alternate Base Rate or Adjusted LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.14. ALTERNATE RATE OF INTEREST. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate for such
Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans included in such Borrowing for such Interest
Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist (which notice the
Administrative Agent agrees to give promptly after such circumstances cease to
exist), (i) any Interest Election Request that requests the conversion of any
Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall
be ineffective and (ii) if any Borrowing Request requests a Eurodollar
Borrowing, such Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. INCREASED COSTS. (a) If any Change in Law
shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement to the extent reflected in the Adjusted LIBO Rate)
or any Issuing Bank; or
(ii) impose on any Lender or any Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or any
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or Issuing
Bank hereunder (whether of principal, interest or otherwise), then the Borrower
will pay to such Lender or Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or Issuing Bank, as the case
may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or any Issuing Bank determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or Issuing
42
Bank's capital or on the capital of such Lender's or Issuing Bank's holding
company, if any, as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by such Issuing Bank, to a level below that which such Lender or
Issuing Bank or such Lender's or Issuing Bank's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
Issuing Bank's policies and the policies of such Lender's or Issuing Bank's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or Issuing Bank or
such Lender's or Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or Issuing Bank, as the case
may be, the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender or an Issuing
Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or Issuing Bank's right to demand such compensation;
PROVIDED that the Borrower shall not be required to compensate a Lender or
Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 180 days prior to the date that such Lender or Issuing Bank,
as the case may be, notifies the Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender's or Issuing Bank's
intention to claim compensation therefor; PROVIDED FURTHER that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a)
the payment of any principal of any Eurodollar Loan other than on the last day
of an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(f) and is revoked in accordance therewith), or (d)
the assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.19, then, in any such event, the Borrower shall compensate each Lender
for the loss (other than loss of margin or anticipated profit), cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost or
expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period
43
that would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.17. TAXES. (a) Any and all payments by or on
account of any obligation of the Borrower hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; PROVIDED that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, a Lender or an Issuing Bank (as
the case may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent,
each Lender and each Issuing Bank, within 10 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or such Issuing Bank, as the case may be, on
or with respect to any payment by or on account of any obligation of the
Borrower hereunder or under any other Loan Document (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or an Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or an Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Each Foreign Lender shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly
44
completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without
withholding or at a reduced rate, pursuant to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement.
(f) If the Administrative Agent or a Lender determines, in its
sole good faith discretion, that it has received a refund of any Indemnified
Taxes or Other Taxes as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this
Section 2.17, it shall upon such determination pay over such refund to the
Borrower (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section 2.17 with respect to the
Indemnified Taxes or Other Taxes giving rise to such refund), net of all
reasonable out-of-pocket expenses of the Administrative Agent or such Lender and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); PROVIDED that the Borrower, upon the
request of the Administrative Agent or such Lender, agrees to repay the amount
paid over to the Borrower (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) to the Administrative Agent or such
Lender in the event the Administrative Agent or such Lender is required to repay
such refund to such Governmental Authority. This Section shall not be construed
to require the Administrative Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT;
SHARING OF SET-OFFS. (a) The Borrower shall make each payment required to be
made by it hereunder or under any other Loan Document (whether of principal,
interest, fees or reimbursement of LC Disbursements, or of amounts payable under
Section 2.15, 2.16 or 2.17, or otherwise) prior to the time expressly required
hereunder or under such other Loan Document for such payment (or, if no such
time is expressly required, prior to 12:00 noon, New York City time), on the
date when due, in immediately available funds, without set-off or counterclaim.
Any amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at Eleven Madison
Avenue, New York, New York, except payments to be made directly to an Issuing
Bank or Swingline Lender as expressly provided herein and except that payments
pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the
Persons entitled thereto and payments pursuant to other Loan Documents shall be
made to the Persons specified therein. The Administrative Agent shall distribute
any such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment under
any Loan Document shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments under each Loan Document shall be made in
dollars.
45
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or by taking a credit against the purchase price payable in respect
of Collateral pursuant to Section 5.01 of the Collateral Agreement or otherwise,
obtain payment in respect of any principal of or interest on any of its
Revolving Loans, Term Loans or participations in LC Disbursements or Swingline
Loans resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans, Term Loans and participations in LC Disbursements and Swingline
Loans of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Revolving Loans,
Term Loans and participations in LC Disbursements and Swingline Loans; PROVIDED
that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be construed to
apply to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements to any assignee or participant,
other than to the Borrower or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or any Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative Agent
may assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or
the applicable Issuing Bank, as the case may be, the amount due. In such event,
if the Borrower has not in fact made such payment, then each of the Lenders or
each Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender
46
or Issuing Bank with interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Effective Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or
9.03(c), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF
LENDERS. (a) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); PROVIDED that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and
if a Revolving Commitment is being assigned, each Issuing Bank and the Swingline
Lender), which consent shall not unreasonably be withheld, (ii) such Lender
shall have received payment of an amount equal to the outstanding principal of
its Loans and participations in LC Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17, such
assignment will result in a material reduction in such compensation or payments.
A Lender shall not be required to make any such assignment and delegation
47
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of the Borrower and
the Subsidiaries is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has all requisite power and
authority to own or lease its properties and to carry on its business as
currently conducted and, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The
Transactions to be entered into by each Loan Party are within such Loan Party's
powers and have been duly authorized by all necessary company and, if required,
stockholder or member action. This Agreement has been duly executed and
delivered by the Borrower and constitutes, and each other Loan Document to which
any Loan Party is to be a party, when executed and delivered by such Loan Party,
will constitute, a legal, valid and binding obligation of the Borrower or such
Loan Party (as the case may be), enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The
Transactions (a) do not require any material consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect and
except filings necessary to perfect Liens created under the Loan Documents, (b)
will not violate any material applicable law or regulation or the charter,
by-laws or other organizational documents of the Borrower or any Subsidiary or
any material order of any Governmental Authority, (c) will not violate or result
in a default under any indenture, agreement or other instrument binding upon the
Borrower or any Subsidiary or its assets, or give rise to a right thereunder to
require any payment to be made the Borrower or any of the Subsidiaries, and (d)
will not result in the creation or imposition of any Lien on any asset of the
Borrower or any of the Subsidiaries, except Liens created under the Loan
Documents.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE
CHANGE. (a) The Borrower has heretofore furnished to the Lenders its
consolidated balance sheet and statements of income, stockholders' equity and
cash flows (i) as of and for the fiscal year ended December 27, 2002, reported
on by Deloitte and Touche LLP, independent public accountants, and (ii) as of
and for the fiscal quarter and the portion of the fiscal year
48
ended March 28, 2003, certified by its chief financial officer. Such financial
statements present fairly, in all material respects, the financial position and
results of operations and cash flows of the Borrower and the Subsidiaries, on a
consolidated basis, as of such dates and for such periods in accordance with
GAAP, subject to year-end audit adjustments and the absence of footnotes in the
case of the statements referred to in clause (ii) above.
(b) The Borrower has heretofore furnished to the Lenders its
pro forma consolidated balance sheet as of March 28, 2003, prepared giving
effect to the Transactions as if the Transactions had occurred on such date.
Such pro forma consolidated balance sheet (i) has been prepared in good faith
based on the same assumptions used to prepare the pro forma financial statements
included in the Information Memorandum (which assumptions are believed by the
Borrower to be reasonable), (ii) is based on the best information available to
the Borrower after due inquiry, (iii) accurately reflects all adjustments
necessary to give effect to the Transactions and (iv) presents fairly, in all
material respects, the pro forma financial position of the Borrower and the
Subsidiaries, on a consolidated basis, as of the Effective Date as if the
Transactions had occurred on such date.
(c) Except as disclosed in the financial statements referred
to above or the notes thereto or in the Information Memorandum and except for
the Disclosed Matters, after giving effect to the Transactions, none of the
Borrower or the Subsidiaries has, as of the Effective Date, any material
contingent liabilities, unusual long-term commitments or unrealized losses.
(d) Since December 27, 2002, there has been no material
adverse change in the condition (financial or otherwise), assets, operations or
business of the Borrower and the Subsidiaries, taken as a whole.
SECTION 3.05. PROPERTIES. (a) Each of the Borrower and the
Subsidiaries has good title to, or valid leasehold interests in, all the real
and personal property material to its business (including its Mortgaged
Properties), except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of the Borrower and the Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and, to the knowledge of the
Borrower, the use thereof by the Borrower and the Subsidiaries does not infringe
upon the rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
(c) Schedule 3.05 sets forth the address of each real property
that is owned or leased by the Borrower or any of the Subsidiaries as of the
Effective Date after giving effect to the Transactions.
(d) As of the Effective Date, neither the Borrower nor any of
the Subsidiaries has received notice of, or has knowledge of, any pending or
contemplated
49
condemnation proceeding affecting any Mortgaged Property or any Excluded
Property or any sale or disposition thereof in lieu of condemnation. Neither any
Mortgaged Property or any Excluded Property nor any interest therein is subject
to any right of first refusal, option or other contractual right to purchase
such Mortgaged Property or Excluded Property or interest therein.
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS. (a)
There are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any Subsidiary (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Borrower nor any Subsidiary (i) has failed to comply with any Environmental Law
or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received notice of any claim with respect to
any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of
the Borrower and the Subsidiaries is in compliance with all laws, regulations
and orders of any Governmental Authority applicable to it or its property and
all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. No
Default has occurred and is continuing.
SECTION 3.08. INVESTMENT AND HOLDING COMPANY STATUS. Neither
the Borrower nor any of the Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. TAXES. Each of the Borrower and the
Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required
to have been paid by it, except (a) any Taxes that are being contested in good
faith by appropriate proceedings and for which the Borrower or such Subsidiary,
as applicable, has set aside on its books adequate reserves to the extent
required by GAAP or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to result, could reasonably be
expected to result in an unsatisfied liability of the Borrower and the
Subsidiaries in an aggregate amount
50
exceeding $5,000,000 for all periods. The present value of all accumulated
benefit obligations under all Plans (based on the assumptions used by such Plan
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed the fair market value of the assets of such Plan by an amount greater
than $5,000,000. The minimum funding standards of ERISA and the Code with
respect to each Plan have been satisfied.
SECTION 3.11. DISCLOSURE. The Borrower has disclosed to the
Lenders all agreements, instruments and corporate or other restrictions to which
the Borrower or any of the Subsidiaries is subject, and all other matters known
to any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the other reports, financial statements, certificates or
other information furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or any other Loan Document or delivered hereunder or thereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed by it to be reasonable at the time.
SECTION 3.12. SUBSIDIARIES. The Borrower does not have any
subsidiaries other than the Subsidiaries. Schedule 3.12 sets forth the name of,
and the ownership interest of the Borrower in, each Subsidiary and identifies
each Subsidiary that is a Subsidiary Loan Party, in each case as of the
Effective Date.
SECTION 3.13. INSURANCE. Schedule 3.13 sets forth a
description of all insurance maintained by or on behalf of the Borrower and the
Subsidiaries as of the Effective Date. As of the Effective Date, all premiums in
respect of such insurance have been paid. The Borrower believes that the
insurance maintained by or on behalf of the Borrower and the Subsidiaries is
adequate.
SECTION 3.14. LABOR MATTERS. As of the Effective Date,
there are no strikes, lockouts or slowdowns against the Borrower or any
Subsidiary pending or, to the knowledge of the Borrower, threatened. The hours
worked by and payments made to employees of the Borrower and the Subsidiaries
have not been in violation of the Fair Labor Standards Act or any other
applicable Federal, state, local or foreign law dealing with such matters. All
payments due from the Borrower or any Subsidiary, or for which any claim may be
made against the Borrower or any Subsidiary, on account of wages and employee
health and welfare insurance and other benefits, have been paid or accrued as a
liability on the books of the Borrower or such Subsidiary. The consummation of
the Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
to which the Borrower or any Subsidiary is bound.
51
SECTION 3.15. SOLVENCY. Immediately after the consummation
of the Transactions to occur on the Effective Date and immediately following the
making of each Loan made on the Effective Date and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
each Loan Party, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of each Loan Party will be greater than the amount that will be
required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) each Loan Party will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) each Loan Party will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is currently conducted and is proposed to be conducted
following the Effective Date.
SECTION 3.16. SENIOR INDEBTEDNESS. The Obligations
constitute "Senior Indebtedness" under and as defined in the Subordinated Debt
Documents and the Subordinated Promissory Note.
ARTICLE IV
CONDITIONS
SECTION 4.01. EFFECTIVE DATE. The obligations of the Lenders
to make Loans and of an Issuing Bank to issue Letters of Credit hereunder shall
not become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this Agreement
signed on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of
this Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of each of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
counsel for the Borrower, substantially in the form of Exhibit D-1, and (ii)
Dechert LLP, substantially in the form of Exhibit D-2. The Borrower hereby
requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good standing of
each Loan Party, the authorization of the Transactions and any other legal
matters relating to the Loan Parties, the Loan Documents or the Transactions,
all in form and substance reasonably satisfactory to the Administrative Agent
and its counsel.
52
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a Vice
President or a Financial Officer of the Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
(including reasonable fees, charges and disbursements of counsel) required to be
reimbursed or paid by any Loan Party hereunder or under any other Loan Document.
(f) The Collateral and Guarantee Requirement shall have been
satisfied, and the Administrative Agent shall have received a completed
Perfection Certificate dated the Effective Date and signed by an executive
officer or Financial Officer of the Borrower, together with all attachments
contemplated thereby, including the results of a search of the Uniform
Commercial Code (or equivalent) filings made with respect to the Loan Parties in
the jurisdictions contemplated by the Perfection Certificate and copies of the
financing statements (or similar documents) disclosed by such search and
evidence reasonably satisfactory to the Administrative Agent that the Liens
indicated by such financing statements (or similar documents) are permitted by
Section 6.02 or have been released; PROVIDED that to the extent that it is not
practicable for the Loan Parties to deliver the promissory notes specified on
Schedule 4.01(f) prior to the Effective Date, together with undated instruments
of transfer with respect thereto, such promissory notes may be delivered after
the Effective Date in accordance with Section 5.13(d).
(g) The Administrative Agent shall have received evidence that
the insurance required by Section 5.07 and the Security Documents is in effect.
(h) The Borrower shall have received gross cash proceeds of
not less than $200,000,000 from the issuance of the Senior Subordinated Notes
and such proceeds shall have been released to the Borrower from the escrow
account established pursuant to the Escrow Agreement. The Administrative Agent
shall have received copies of the Subordinated Debt Documents, certified by a
Financial Officer as complete and correct.
(i) The Lenders shall have received a pro forma consolidated
capitalization table of the Borrower as of March 28, 2003, reflecting all pro
forma adjustments as if the Transactions had been consummated on such date, and
such pro forma consolidated capitalization table shall be consistent in all
material respects with the forecasts and other information previously provided
to the Lenders. After giving effect to the Transactions, neither the Borrower
nor any of the Subsidiaries shall have outstanding any shares of preferred stock
or any Indebtedness, other than (i) Indebtedness incurred under the Loan
Documents, (ii) the Senior Subordinated Notes, (iii) Existing Preferred Stock
and (iv) Indebtedness permitted pursuant to Section 6.01(a)(iii).
(j) The Existing Credit Agreement shall have been terminated,
and all loans, interest and other amounts accrued or owing thereunder shall have
been repaid in full and all liens granted in respect thereof shall have been
released and the terms and
53
conditions of any such release shall be reasonably satisfactory to the
Administrative Agent. The Administrative Agent shall have received a payoff and
release letter in form and substance reasonably satisfactory to the
Administrative Agent from Fleet National Bank.
(k) All Existing Mezzanine Indebtedness shall have been
redeemed, canceled and retired, and all Indebtedness in respect thereof
(including all interest and other amounts accrued or owing thereunder) shall
have been repaid in full.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of an Issuing
Bank to issue Letters of Credit hereunder shall not become effective unless each
of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at
or prior to 5:00 p.m., New York City time, on May 30, 2003 (and, in the event
such conditions are not so satisfied or waived, the Commitments shall terminate
at such time).
SECTION 4.02. EACH CREDIT EVENT. The obligation of each
Lender to make a Loan on the occasion of any Borrowing, and of any Issuing Bank
to issue, amend, renew or extend any Letter of Credit, is subject to receipt of
the request therefor in accordance herewith and to the satisfaction of the
following conditions:
(a) The representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct in all material respects
on and as of the date of such Borrowing or the date of issuance, amendment,
renewal or extension of such Letter of Credit, except to the extent such
representations and warranties expressly relate to an earlier date, as
applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
54
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION.
The Borrower will furnish to the Administrative Agent and each Lender through
the Administrative Agent:
(a) within 90 days (or such shorter period as the SEC shall
specify for the filing of annual reports on Form 10-K) after the end of
each fiscal year of the Borrower, a copy of its audited consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such year, setting forth
in each case in comparative form the figures as of the end of and for
the previous fiscal year, all reported on by Deloitte and Touche LLP or
other independent public accountants of recognized national standing
(without a "going concern" or like qualification or exception and
without any qualification or exception as to the scope of such audit)
to the effect that such consolidated financial statements present
fairly in all material respects the financial condition and results of
operations of the Borrower and the Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied;
(b) within 45 days (or such shorter period as the SEC shall
specify for the filing of quarterly reports on Form 10-Q) after the end
of each of the first three fiscal quarters of each fiscal year of the
Borrower, its consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and
for such fiscal quarter and the then elapsed portion of such fiscal
year, setting forth in each case in comparative form the figures for
the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by a
Financial Officer as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and the
Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and
the absence of footnotes; PROVIDED that the foregoing shall not apply
if the Borrower is required to file periodic reports pursuant to the
Securities Exchange Act of 1934 and has filed a quarterly report on
Form 10-Q with the SEC, which report shall be furnished to the
Administrative Agent promptly following such filing;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer (i)
certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating whether there has been
compliance with Sections 6.12, 6.13 and 6.14 and (iii) stating whether
any change in GAAP or in the application thereof has occurred since the
date of the Borrower's audited financial statements referred to in
Section 3.04 and, if any such change has occurred, specifying the
effect of such change on the financial statements accompanying such
certificate;
(d) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their
55
examination of such financial statements of any Default and, if such
knowledge has been obtained, describing such Default (which certificate
may be limited to the extent required by accounting rules or
guidelines);
(e) within 30 days after the commencement of each fiscal year
of the Borrower, a detailed consolidated budget for such fiscal year
(including a projected consolidated balance sheet and related
statements of projected operations and cash flows as of the end of and
for such fiscal year and setting forth the assumptions used for
purposes of preparing such budget) and, promptly when available, any
significant revisions of such budget;
(f) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Borrower or any Subsidiary with the SEC, or with any
national securities exchange, as the case may be; and
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any Subsidiary, or compliance with the
terms of any Loan Document, as the Administrative Agent or any Lender
may reasonably request.
SECTION 5.02. NOTICES OF MATERIAL EVENTS. The Borrower will
furnish to the Administrative Agent and each Lender through the Administrative
Agent prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in an unsatisfied liability of the Borrower and the
Subsidiaries in an aggregate amount exceeding $250,000; and
(d) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. INFORMATION REGARDING COLLATERAL. (a) The
Borrower will furnish to the Administrative Agent prompt written notice of any
change (i) in any Loan Party's name, (ii) in the jurisdiction of incorporation
or organization of any Loan
56
Party, (iii) in any office in which any Loan Party maintains books or records
relating to Collateral owned by it, or (iv) in any Loan Party's organizational
identification number. The Borrower also agrees to promptly provide the
Administrative Agent with certified organizational documents reflecting any of
the changes described in the preceding sentence. The Borrower agrees not to
effect or permit any change referred to in the preceding sentence unless all
filings have been made under the Uniform Commercial Code or otherwise that are
required in order for the Administrative Agent, for the benefit of the Lenders,
to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral. The Borrower also agrees
promptly to notify the Administrative Agent if any material portion of the
Collateral owned or held by it is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a) of
Section 5.01, the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer and the chief legal officer of the Borrower
(i) setting forth the information required pursuant to the Perfection
Certificate or confirming that there has been no change in such information
since the date of the Perfection Certificate delivered on the Effective Date or
the date of the most recent certificate delivered pursuant to this Section and
(ii) certifying that all Uniform Commercial Code financing statements (including
fixture filings, as applicable) or other appropriate filings, recordings or
registrations, including all refilings, rerecordings and reregistrations,
containing a description of the Collateral have been filed of record in each
governmental, municipal or other appropriate office in each jurisdiction
identified pursuant to clause (i) above to the extent necessary to protect and
perfect the security interests under the Collateral Agreement for a period of
not less than 18 months after the date of such certificate (except as noted
therein with respect to any continuation statements to be filed within such
period). Each certificate delivered pursuant to this Section 5.03(b) shall
identify in the format of Schedule III to the Collateral Agreement all
Intellectual Property (as defined in the Collateral Agreement) in existence on
the date thereof and then not listed on such Schedule or previously so
identified.
SECTION 5.04. EXISTENCE; CONDUCT OF BUSINESS. The Borrower
will, and will cause each of the Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its business;
PROVIDED that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.03.
SECTION 5.05. PAYMENT OF OBLIGATIONS. The Borrower will, and
will cause each of the Subsidiaries to, pay its Material Indebtedness and other
material obligations, including Tax liabilities, on or before the time that the
same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto to the extent required by GAAP, (c) such contest
effectively suspends collection of the contested obligation and the enforcement
of any Lien securing such obligation and (d) the failure to make payment
57
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.06. MAINTENANCE OF PROPERTIES. The Borrower will,
and will cause each of the Subsidiaries to, keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted.
SECTION 5.07. INSURANCE. The Borrower will, and will cause
each of the Subsidiaries to, maintain, with financially sound and reputable
insurance companies (a) insurance in such amounts (with no greater risk
retention) and against such risks as are customarily maintained by companies of
established repute engaged in the same or similar businesses operating in the
same or similar locations and (b) all insurance required to be maintained
pursuant to the Security Documents. The Borrower will furnish to the
Administrative Agent, promptly following its request, information in reasonable
detail as to the insurance so maintained.
SECTION 5.08. CASUALTY AND CONDEMNATION. The Borrower
(a) will furnish to the Administrative Agent and each Lender, through the
Administrative Agent, prompt written notice of any casualty or other insured
damage to any material portion of the Collateral or the commencement of any
action or proceeding for the taking of any material portion of the Collateral or
interest therein under power of eminent domain or by condemnation or similar
proceeding and (b) will ensure that the Net Proceeds of any such event (whether
in the form of insurance proceeds, condemnation awards or otherwise) are
collected and applied in accordance with the applicable provisions of the
Security Documents.
SECTION 5.09. BOOKS AND RECORDS; INSPECTION AND AUDIT
RIGHTS. The Borrower will, and will cause each of the Subsidiaries to, keep
proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of the Subsidiaries to,
permit any representatives designated by the Administrative Agent or any Lender,
upon reasonable prior notice, to visit and inspect its properties during normal
business hours, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested.
SECTION 5.10. COMPLIANCE WITH LAWS. The Borrower will, and
will cause each of the Subsidiaries to, comply with all laws, rules, regulations
and orders of any Governmental Authority applicable to it or its property,
including Environmental Laws, except where the failure to do so, individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.11. USE OF PROCEEDS AND LETTERS OF CREDIT. The
proceeds of the Term Loans, together with the proceeds of the Initial Senior
Subordinated Notes, will be used only for the payment of (a) all loans, interest
and other amounts accrued and owing under the Existing Credit Agreement and the
Existing Mezzanine Indebtedness and (b) fees (including accrued interest,
prepayment penalties and premiums) and
58
expenses payable in connection with the Transactions. The proceeds of the
Revolving Loans will be used only for general corporate purposes in the ordinary
course of the Borrower's business, including Permitted Acquisitions, PROVIDED
that (i) no more than $25,000,000 of Revolving Loans may be used to effect
Permitted Acquisitions as provided in Section 6.04(a) and (ii) no more than
$10,000,000 of Revolving Loans may be used on the Effective Date in connection
with the payment of amounts described in clauses (a) and (b) of the immediately
preceding sentence. The proceeds of the Swingline Loans will be used only for
general corporate purposes in the ordinary course of the Borrower's business. No
part of the proceeds of any Loan and no Letter of Credit will be used, whether
directly or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations T, U and X. Letters of Credit
will be issued only for general corporate purposes.
SECTION 5.12. ADDITIONAL SUBSIDIARIES. If any additional
Subsidiary is formed or acquired after the Effective Date, the Borrower will,
within three Business Days after such Subsidiary is formed or acquired, notify
the Administrative Agent and the Lenders (through the Administrative Agent)
thereof and cause the Collateral and Guarantee Requirement to be satisfied with
respect to such Subsidiary (if it is a Subsidiary Loan Party) and with respect
to any Equity Interest in or Indebtedness of such Subsidiary owned by or on
behalf of any Loan Party (except for Equity Interests in any Foreign Subsidiary
other than up to 65% of the outstanding voting Equity Interests of a Foreign
Subsidiary that is owned directly by a Loan Party).
SECTION 5.13. FURTHER ASSURANCES. (a) The Borrower will, and
will cause each Subsidiary Loan Party to, execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents), which may be required
under any applicable law, or which the Administrative Agent or the Required
Lenders may reasonably request, to cause the Collateral and Guarantee
Requirement to be and remain satisfied, all at the expense of the Loan Parties.
The Borrower also agrees to provide to the Administrative Agent, from time to
time upon reasonable request, evidence reasonably satisfactory to the
Administrative Agent as to the perfection and priority of the Liens created or
intended to be created by the Security Documents.
(b) If any material assets (including any owned real property
or improvements thereon or any interest therein) are acquired by the Borrower or
any Subsidiary Loan Party after the Effective Date (other than assets
constituting Collateral under the Collateral Agreement that become subject to
the Lien of the Collateral Agreement upon acquisition thereof), the Borrower
will, within five Business Days after such material asset is acquired, notify
the Administrative Agent and the Lenders (through the Administrative Agent)
thereof, and, if requested by the Administrative Agent or the Required Lenders,
the Borrower will cause such assets to be subjected to a Lien securing the
Obligations and will take, and cause the Subsidiary Loan Parties to take, such
actions as shall be necessary or reasonably requested by the Administrative
Agent to grant and perfect such Liens, including actions described in paragraph
(a) of this Section, all at the expense of the Loan Parties.
59
(c) The Borrower will, and will cause each Subsidiary Loan
Party to, deliver to the Administrative Agent, with respect to any Excluded
Property that is owned by the Borrower or any Subsidiary on the date that is 180
days after the Effective Date, within five Business Days of such date, (i)
counterparts of a Mortgage duly executed and delivered by the record owner of
each such Excluded Property, (ii) a policy or policies of title insurance issued
by a nationally recognized title insurance company reasonably satisfactory to
the Administrative Agent insuring the Lien created by each such Mortgage as a
valid first-priority Lien on such Excluded Property, free of any other Liens
except as expressly permitted by Section 6.02, together with such endorsements,
coinsurance and reinsurance as the Administrative Agent may reasonably request
and (iii) such surveys, abstracts, appraisals, legal opinions and other
documents with respect thereto as the Administrative Agent may reasonably
request with respect to any such Mortgage or Excluded Property, all at the
expense of the Loan Parties.
(d) In the event that any promissory notes set forth on
Schedule 4.01(f) are not delivered as permitted by the proviso to Section
4.01(f) on or prior to the Effective Date, the Borrower will, and will cause
each Subsidiary Loan Party to, cause such promissory notes, together with
undated instruments of transfer with respect thereto endorsed in blank, to be
delivered to the Administrative Agent as promptly as practicable after the
Effective Date and, in any event, no later than 15 Business Days following the
Effective Date.
SECTION 5.14. INTEREST RATE PROTECTION. As promptly as
practicable, and in any event within 90 days after the Effective Date, the
Borrower will enter into, and thereafter for a period of not less than three
years will maintain in effect, one or more interest rate protection agreements
on such terms and with such parties as shall be reasonably satisfactory to the
Administrative Agent, the effect of which shall be to fix or limit the interest
cost to the Borrower with respect to at least 50% of the Long-Term Indebtedness
of the Borrower and the Subsidiaries.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 6.01. INDEBTEDNESS; CERTAIN EQUITY SECURITIES.
(a) The Borrower will not, and will not permit any Subsidiary to, create, incur,
assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
60
(ii) in the case of the Borrower, the Initial Senior
Subordinated Notes and extensions, renewals and replacements of any
such Initial Senior Subordinated Notes that do not increase the
outstanding principal amount thereof or result in an earlier maturity
date or decreased weighted average life thereof and that do not have
terms less favorable to the Lenders and the Borrower than the Initial
Senior Subordinated Notes;
(iii) Indebtedness existing on the date hereof (other than the
Initial Senior Subordinated Notes) and set forth in Schedule 6.01 and
extensions, renewals and replacements of any such Indebtedness that do
not increase the outstanding principal amount thereof or result in an
earlier maturity date or decreased weighted average life thereof;
(iv) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary; PROVIDED that (A)
Indebtedness of any Subsidiary that is not a Loan Party to the Borrower
or any Subsidiary Loan Party shall be subject to Section 6.04 and (B)
Indebtedness of the Borrower to any Subsidiary and Indebtedness of any
Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan
Party shall be subordinated to the Obligations on terms reasonably
satisfactory to the Administrative Agent;
(v) Guarantees by the Borrower of Indebtedness of any
Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any
other Subsidiary; PROVIDED that (A) the Indebtedness so guaranteed is
permitted by this Section, (B) Guarantees by the Borrower or any
Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a
Loan Party shall be subject to Section 6.04 and (C) the Subordinated
Debt shall not be guaranteed by any Subsidiary that is not a Subsidiary
Loan Party and any such Guarantee shall be subordinated to the
Obligations of the applicable Subsidiary on the same terms as the
Subordinated Debt is subordinated to its Obligations;
(vi) Indebtedness of the Borrower or any Subsidiary incurred
to finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations (other than Capital
Lease Obligations incurred pursuant to clause (x) of this Section
6.01(a)), and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets
prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity
date or decreased weighted average life thereof; PROVIDED that (A) such
Indebtedness is incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement and
(B) the aggregate principal amount of Indebtedness permitted by this
clause (vi) shall not exceed $7,500,000 at any time outstanding;
(vii) (A) Indebtedness of any Person that becomes a Subsidiary
after the date hereof; PROVIDED that (1) such Indebtedness exists at
the time such Person becomes a Subsidiary and is not created in
contemplation of or in connection with
61
such Person becoming a Subsidiary and (2) the aggregate principal
amount of Indebtedness permitted by this clause (vii) shall not exceed
$10,000,000 at any time outstanding and (B) any refinancings, renewals
and replacements of any such Indebtedness pursuant to the preceding
clause (A) that do not increase the outstanding principal amount
thereof or result in an earlier maturity date or decreased weighted
average life thereof;
(viii) in the case of the Borrower, (A) the Additional Senior
Subordinated Notes; PROVIDED that the proceeds of such Additional
Senior Subordinated Notes shall be used (1) if no Default has occurred
and is continuing or would result therefrom, to finance a Permitted
Acquisition pursuant to Section 6.04(a) or (2) to repay Term Loans and
(B) extensions, renewals and replacements of any such Additional Senior
Subordinated Notes that do not increase the outstanding principal
amount thereof or result in an earlier maturity date or decreased
weighted average life thereof and that do not have terms less favorable
to the Lenders and the Borrower than the Additional Senior Subordinated
Notes;
(ix) Indebtedness of the Borrower or any Subsidiary issued to
holders of capital stock of the Borrower that is required to be
repurchased by the Borrower pursuant to the Shareholders Agreement;
PROVIDED that (A) such Indebtedness is expressly subordinated to the
Obligations on terms reasonably satisfactory to the Administrative
Agent, (B) no cash interest or principal is payable on such
Indebtedness until after the Obligations are indefeasibly paid in full
in cash, (C) the maturity date of such Indebtedness is at least 180
days after the Term Loan Maturity Date, (D) both before and after the
incurrence thereof, no Default shall have occurred or be continuing,
and (E) the documentation evidencing such Indebtedness shall be in form
and substance reasonably satisfactory to the Administrative Agent;
(x) Indebtedness of the Borrower or any Subsidiary consisting
of Capital Lease Obligations incurred in connection with the sale and
leaseback transactions relating to the Excluded Properties permitted by
Section 6.06(b);
(xi) the Subordinated Promissory Note and any pledge of the
Equity Interests of Buyers Access owned by Glenwood Acquisition LLC to
secure the Subordinated Promissory Note; and
(xii) other unsecured Indebtedness in an aggregate principal
amount not exceeding $12,000,000 at any time outstanding; PROVIDED that
the aggregate principal amount of Indebtedness of Subsidiaries that are
not Loan Parties permitted by this clause (xii) shall not exceed
$3,500,000 at any time outstanding.
(b) The Borrower will not, nor will it permit any Subsidiary
to, issue any preferred Equity Interests other than Qualified Preferred Stock
issued to the Permitted Investors.
62
SECTION 6.02. LIENS. The Borrower will not, and will not
permit any Subsidiary to, create, incur, assume or permit to exist any Lien on
any property or asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or rights in respect of
any thereof, except:
(a) Liens created under the Loan Documents;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02;
PROVIDED that (i) such Lien shall not apply to any other property or
asset of the Borrower or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(d) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on
any property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a Subsidiary;
PROVIDED that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary,
as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary and (iii) such
Lien shall secure only those obligations which it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as
the case may be, and extensions, renewals and replacements thereof that
do not increase the outstanding principal amount thereof;
(e) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; PROVIDED that (i) such
security interests secure Indebtedness permitted by clause (vi) of
Section 6.01(a), (ii) such security interests and the Indebtedness
secured thereby are incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement,
(iii) the Indebtedness secured thereby does not exceed the cost of
acquiring, constructing or improving such fixed or capital assets and
(iv) such security interests shall not apply to any other property or
assets of the Borrower or any Subsidiary;
(f) Liens that are contractual rights of set-off relating to
deposit accounts in favor of banks and other depositary institutions in
the ordinary course of business;
(g) Liens of a collection bank arising in the ordinary course
of business under Section 4-210 of the Uniform Commercial Code in
effect in the relevant jurisdiction covering only the items being
collected upon;
63
(h) Liens disclosed on any title insurance policy in respect
of a Mortgaged Property reasonably approved by the Administrative Agent
or any Lien of any lessee reasonably approved by the Administrative
Agent;
(i) any Lien arising out of the pledge of the Equity Interests
owned by Glenwood Acquisition LLC in Buyers Access permitted by clause
(xi) of Section 6.01(a);
(j) any interest or title of a lessor under any lease entered
into by the Borrower and any Lien arising from precautionary Uniform
Commercial Code financing statements (or equivalent filings,
registrations or agreements in foreign jurisdictions) relating to and
covering only equipment leased in accordance with any Loan Document;
and
(k) Liens arising out of sale and leaseback transactions
relating to the Excluded Properties permitted by Section 6.06(b).
SECTION 6.03. FUNDAMENTAL CHANGES. (a) The Borrower will
not, nor will it permit any Subsidiary to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be continuing (i)
any Person may merge into the Borrower in a transaction in which the surviving
entity is a Person organized or existing under the laws of the United States of
America, any State thereof or the District of Columbia and, if such surviving
entity is not the Borrower, such Person expressly assumes, in writing, all of
the obligations of the Borrower under the Loan Documents, (ii) any Person may
merge into any Subsidiary in a transaction in which the surviving entity is a
Subsidiary and, if any party to such merger is a Subsidiary Loan Party, is a
Subsidiary Loan Party, and (iii) any Subsidiary (other than a Subsidiary Loan
Party) may liquidate or dissolve if the Borrower determines in good faith that
such liquidation or dissolution is in the best interests of the Borrower and is
not materially disadvantageous to the Lenders; PROVIDED that any such merger
involving a Person that is not a wholly owned Subsidiary immediately prior to
such merger shall not be permitted unless also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of the
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Borrower and the Subsidiaries on the
Effective Date and businesses reasonably related thereto.
(c) Glenwood Acquisition LLC will not engage in any business
or activity other than the ownership of Equity Interests in Buyers Access and
activities incidental thereto. Glenwood Acquisition LLC will not own or acquire
any assets (other than Equity Interests in Buyers Access, cash and Permitted
Investments) or incur any liabilities (other than liabilities under the Loan
Documents, liabilities in respect of Guarantees permitted by Section 6.01,
liabilities imposed by law, including tax liabilities, and other liabilities
incidental to its existence and permitted business and activities).
64
SECTION 6.04. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND
ACQUISITIONS. The Borrower will not, and will not permit any of the Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly owned Subsidiary prior to such merger) any Equity
Interests in or evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person, or
purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit, except:
(a) Permitted Acquisitions; PROVIDED that (i) if the Pro Forma
Leverage Ratio is greater than or equal to 4.25 to 1.00, the aggregate
cash consideration paid or required to be paid by the Borrower or a
wholly owned Subsidiary in connection with each Permitted Acquisition
does not exceed the sum of (A) Retained Excess Cash Flow for the fiscal
year ended immediately prior to the date of such Permitted Acquisition
(to the extent not previously applied to repurchase Subordinated Debt
or to make Permitted Acquisitions), plus (B) the Retained Equity
Proceeds, plus (C) an amount equal to (1) $25,000,000 minus (2) the
aggregate principal amount of Revolving Loans outstanding immediately
prior to the date of such Permitted Acquisition the proceeds of which
were used to finance Permitted Acquisitions prior to such date
(PROVIDED that the portion of the cash consideration set forth in this
clause (C) is financed with the proceeds of a Revolving Borrowing) or
(ii) if the Pro Forma Leverage Ratio is less than 4.25 to 1.00, the
aggregate cash consideration paid or required to be paid by the
Borrower or a wholly owned Subsidiary in connection with each Permitted
Acquisition does not exceed the sum of (A) Retained Excess Cash Flow
for the fiscal year ended immediately prior to the date of such
acquisition (to the extent not previously applied to repurchase
Subordinated Debt or to finance Permitted Acquisitions), plus (B) cash
generated in the ordinary course of the Borrower's business, plus (C)
the proceeds of the Additional Senior Subordinated Notes, plus (D)
Retained Equity Proceeds plus (E) an amount equal to (1) $25,000,000
minus (2) the aggregate principal amount of Revolving Loans outstanding
immediately prior to the date of such Permitted Acquisition the
proceeds of which were used to finance Permitted Acquisitions prior to
such date (PROVIDED that the portion of the cash consideration set
forth in this clause (E) is financed with the proceeds of a Revolving
Borrowing); PROVIDED that in the case of clauses (i) and (ii),
immediately before and on a Pro Forma Basis after giving effect to such
Permitted Acquisition and any related incurrence of Indebtedness, the
aggregate Revolving Commitments exceed the aggregate Revolving Exposure
by not less than $15,000,000;
(b) Permitted Investments;
(c) investments existing on the date hereof and set forth on
Schedule 6.04;
(d) investments by the Borrower and the Subsidiaries in Equity
Interests in their respective subsidiaries; PROVIDED that (i) any such
Equity Interests held by a
65
Loan Party shall be pledged pursuant to the Collateral Agreement
(subject to the limitations applicable to Equity Interests of a Foreign
Subsidiary or a Joint Venture referred to in the definition of the term
"Collateral and Guarantee Requirement") and (ii) the aggregate amount
of investments by Loan Parties in, and loans and advances by Loan
Parties to, and Guarantees by Loan Parties of Indebtedness of,
Subsidiaries that are not Loan Parties (including all such investments,
loans, advances and Guarantees existing on the Effective Date) shall
not exceed $3,500,000 at any time outstanding;
(e) loans or advances made by the Borrower to any Subsidiary
and made by any Subsidiary to the Borrower or any other Subsidiary;
PROVIDED that (i) any such loans and advances made by a Loan Party
shall be evidenced by a promissory note pledged pursuant to the
Collateral Agreement and (ii) the amount of such loans and advances
made by Loan Parties to Subsidiaries that are not Loan Parties shall be
subject to the limitation set forth in clause (d)(ii) above;
(f) Guarantees constituting Indebtedness permitted by Section
6.01; PROVIDED that (i) a Subsidiary shall not Guarantee the
Subordinated Debt unless (A) such Subsidiary also has Guaranteed the
Obligations pursuant to the Collateral Agreement and (B) such Guarantee
of the Subordinated Debt is subordinated to such Guarantee of the
Obligations on terms no less favorable to the Lenders than the
subordination provisions of the Subordinated Debt and (ii) the
aggregate principal amount of Indebtedness of Subsidiaries that are not
Loan Parties that is Guaranteed by any Loan Party shall be subject to
the limitation set forth in clause (d)(ii) above;
(g) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course of
business;
(h) receivables owing to the Borrower or a Subsidiary if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; PROVIDED that
such trade terms may include such concessionary trade terms as the
Borrower or any such Subsidiary deems reasonable under the
circumstances;
(i) investments consisting of Equity Interests, obligations,
securities or other property received in settlement of delinquent
accounts in the ordinary course of business and owing to the Borrower
or any Subsidiary or in satisfaction of judgments;
(j) investments in payroll, travel and similar advances to
cover matters that are expected at the time of such advances ultimately
to be treated as expenses for accounting purposes and that are made in
the ordinary course of business;
66
(k) loans or advances to employees made in the ordinary course
of business of the Borrower or a Subsidiary not exceeding $1,000,000 in
the aggregate outstanding at any one time;
(l) investments in the form of Swap Agreements permitted under
Section 6.07;
(m) investments by the Borrower or any Subsidiary financed by
Retained Equity Proceeds not otherwise applied pursuant to this Section
6.04; and
(n) other investments in an aggregate amount, as valued at
cost at the time each such investment is made, not exceeding
$10,000,000 in the aggregate for all such investments made from and
after the Effective Date plus an amount equal to any repayments,
interest, returns, profits, distributions, income and similar amounts
actually received in cash in respect of any such investment (which
amount shall not exceed the amount of such investment valued at cost at
the time such investment was made).
SECTION 6.05. ASSET SALES. The Borrower will not, and will
not permit any of the Subsidiaries to, sell, transfer, lease or otherwise
dispose of any asset, including any Equity Interest owned by it, nor will the
Borrower permit any Subsidiary to issue any additional Equity Interest in such
Subsidiary (other than to the Borrower or another Subsidiary in compliance with
Section 6.04), except:
(a) sales, transfers and dispositions of inventory, used,
obsolete, worn out or surplus equipment or property and Permitted
Investments in the ordinary course of business;
(b) sales, transfers and dispositions to the Borrower or a
Subsidiary; PROVIDED that any such sales, transfers or dispositions
involving a Subsidiary that is not a Loan Party shall be made in
compliance with Section 6.09;
(c) sales, transfers and dispositions of the Excluded
Properties;
(d) sales, transfers and dispositions of accounts receivable
in connection with the compromise, settlement or collection thereof;
(e) sales, transfers and dispositions of investments permitted
by Section 6.04(g);
(f) within 360 days after the consummation of a Permitted
Acquisition, the sale, transfer or disposition of assets acquired in
connection with such Permitted Acquisition and not required in the
operation of the business of the Borrower or any of the Subsidiaries;
(g) sales, transfers and dispositions of Equity Interests in
Buyers Access in accordance with the terms of the Buyers Access
Operating Agreement; and
67
(h) sales, transfers and other dispositions of assets (other
than Equity Interests in a Subsidiary unless 100% of such Subsidiary)
that are not permitted by any other clause of this Section; PROVIDED
that the aggregate fair market value of all assets sold, transferred or
otherwise disposed of in reliance upon this clause (d) shall not exceed
$2,500,000 during any fiscal year of the Borrower.
PROVIDED that all sales, transfers, leases and other dispositions permitted
hereby (other than those permitted by clauses (b) and (d) above) shall be made
for fair value and for at least 80% cash consideration.
SECTION 6.06. SALE AND LEASEBACK TRANSACTIONS. The Borrower
will not, and will not permit any of the Subsidiaries to, enter into any
arrangement, directly or indirectly, whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
that it intends to use for substantially the same purpose or purposes as the
property sold or transferred, except for (a) any such sale of any fixed or
capital assets that is made for cash consideration in an amount not less than
the cost of such fixed or capital asset and is consummated within 90 days after
the Borrower or such Subsidiary acquires or completes the construction of such
fixed or capital asset and (b) any transaction involving Excluded Properties.
SECTION 6.07. SWAP AGREEMENTS. The Borrower will not, and
will not permit any of the Subsidiaries to, enter into any Swap Agreement,
except (a) Swap Agreements entered into to hedge or mitigate risks to which the
Borrower or any Subsidiary has actual exposure (other than those in respect of
Equity Interests of the Borrower or any of the Subsidiaries) and (b) Swap
Agreements entered into in order to effectively cap, collar or exchange interest
rates (from fixed to floating rates, from one floating rate to another floating
rate or otherwise) with respect to any interest-bearing liability or investment
of the Borrower or any Subsidiary.
SECTION 6.08. RESTRICTED PAYMENTS; CERTAIN PAYMENTS OF
INDEBTEDNESS. (a) The Borrower will not, nor will it permit any Subsidiary to,
declare or make, or agree to pay or make, directly or indirectly, any Restricted
Payment, or incur any obligation (contingent or otherwise) to do so, except (i)
the Borrower may declare and pay dividends with respect to its common stock,
payable solely in additional shares of its common stock, and, with respect to
its preferred stock, payable solely in additional shares of such preferred stock
or in shares of common stock of the Borrower, (ii) Subsidiaries may declare and
pay dividends ratably with respect to their capital stock, (iii) the Borrower
may make Restricted Payments, not exceeding $2,500,000 during any fiscal year,
pursuant to and in accordance with stock option plans or other benefit plans for
management or employees of the Borrower and the Subsidiaries, (iv) so long as no
Default has occurred and is continuing or would result therefrom, the Borrower
may make payments of or on account of monitoring or management or similar fees
payable to the Permitted Investors in an aggregate amount in any fiscal year not
in excess of $500,000 (plus any reasonable out-of-pocket expenses in connection
therewith) and (v) the Borrower may (A) redeem the Qualified Preferred Stock
pursuant to a conversion into common stock of the Borrower and (B) make any
Restricted Payments in connection
68
with such conversion, in each case, in accordance with the terms of the
Qualified Preferred Stock.
(b) The Borrower will not, nor will it permit any Subsidiary
to, make or agree to pay or make, directly or indirectly, any payment or other
distribution (whether in cash, securities or other property) of or in respect of
principal of or interest on any Indebtedness, or any payment or other
distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal
payments as and when due in respect of any Indebtedness, other than
payments in respect of the Subordinated Debt or the Subordinated
Promissory Note prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by
Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets
securing such Indebtedness; and
(v) redemption, repurchase and retirement of the Senior
Subordinated Notes, including any premium (if any) and accrued and
unpaid interest thereon to the date of such redemption or repurchase,
at any time during any fiscal year in an aggregate amount equal to (a)
$15,000,000, plus (b) the Retained Excess Cash Flow for the previous
fiscal year (to the extent such Retained Excess Cash Flow not been
applied previously to make Permitted Acquisitions or to repurchase
Senior Subordinated Notes); PROVIDED that (i) on a pro forma basis
after giving effect to such redemption, repurchase and retirement (and
any Indebtedness incurred in connection therewith), as of the end of
the quarter most recently ended prior to the date of any such
repurchase, the Senior Leverage Ratio is less than 1.00 to 1.00 and
(ii) the aggregate purchase price of all Senior Subordinated Notes
redeemed and repurchased pursuant to this clause (v) after the
Effective Date shall not exceed $40,000,000 (it being understood and
agreed that any Senior Subordinated Notes redeemed or repurchased
pursuant to this clause (v) shall immediately be canceled by the
Borrower).
SECTION 6.09. TRANSACTIONS WITH AFFILIATES. Except as set
forth on Schedule 6.09, the Borrower will not, nor will it permit any Subsidiary
to, sell, lease or otherwise transfer any property or assets to, or purchase,
lease or otherwise acquire any property or assets from, or otherwise engage in
any other transactions with, any of its Affiliates, except (a) transactions in
the ordinary course of business that are at prices and on terms and conditions
not less favorable to the Borrower or such Subsidiary than could be obtained on
an arm's-length basis from unrelated third parties, (b) transactions
69
between or among the Borrower and the Subsidiary Loan Parties not involving any
other Affiliate, (c) any investment permitted by Sections 6.04(d)(ii), (e), (f),
(m) or (n) or any Restricted Payment permitted by Section 6.08, (d) customary
compensation and reimbursement of expenses of officers and directors of any Loan
Party, including the issuance of Equity Interests of the Borrower, in each case
in the ordinary course of business and (e) any sale or disposition of inventory
by the Borrower or any Subsidiary to wholly owned Foreign Subsidiaries in the
ordinary course of business, at a price not less than the cost of such
inventory.
SECTION 6.10. RESTRICTIVE AGREEMENTS. The Borrower will not,
nor will it permit any Subsidiary to, directly or indirectly, enter into, incur
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon (a) the ability of the Borrower or any Subsidiary
to create, incur or permit to exist any Lien upon any of its property or assets,
or (b) the ability of any Subsidiary to pay dividends or other distributions
with respect to any shares of its capital stock or to make or repay loans or
advances to the Borrower or any other Subsidiary or to Guarantee Indebtedness of
the Borrower or any other Subsidiary; PROVIDED that (i) the foregoing shall not
apply to restrictions and conditions imposed by law or by any Loan Document or
Subordinated Debt Document, (ii) the foregoing shall not apply to restrictions
and conditions existing on or about the date hereof and identified on Schedule
6.10 (but shall apply to any extension or renewal of, or any amendment or
modification expanding the scope of, any such restriction or condition), (iii)
the foregoing shall not apply to customary restrictions and conditions contained
in agreements relating to the sale of a Subsidiary pending such sale, provided
such restrictions and conditions apply only to the Subsidiary that is to be sold
and such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness and (v) clause
(a) of the foregoing shall not apply to customary provisions in leases
restricting the assignment thereof.
SECTION 6.11. AMENDMENT OF MATERIAL DOCUMENTS. The Borrower
will not, nor will it permit any Subsidiary to, amend, modify or waive any of
its rights under (a) any Subordinated Debt Document, (b) the Subordinated
Promissory Note, (c) its certificate of incorporation, by-laws or other
organizational documents (other than to change its name) or (d) the Certificate
of Designation, except for such amendments, modifications or waivers that could
not be reasonably expected to effect any change materially adverse to the
interests and rights of the Administrative Agent or the Lenders under any Loan
Document.
SECTION 6.12. INTEREST EXPENSE COVERAGE RATIO. The Borrower
will not permit the ratio of (a) Consolidated EBITDA to (b) Consolidated Cash
Interest Expense, in each case on the last day of any period of four consecutive
fiscal quarters ending on or about any date set forth below, to be less than the
ratio set forth below opposite such period:
70
PERIOD RATIO
------ -----
June 30, 2003 1.60 to 1.00
September 30,2003 1.60 to 1.00
December 31, 2003 1.60 to 1.00
March 31, 2004 1.60 to 1.00
June 30, 2004 1.60 to 1.00
September 30, 2004 1.75 to 1.00
December 31, 2004 1.75 to 1.00
March 31, 2005 1.75 to 1.00
June 30, 2005 1.75 to 1.00
September 30, 2005 2.00 to 1.00
December 31, 2005 2.00 to 1.00
March 31, 2006 2.00 to 1.00
June 30, 2006 2.00 to 1.00
September 30, 2006 2.25 to 1.00
December 31, 2006 2.25 to 1.00
March 31, 2007 2.25 to 1.00
June 30, 2007 2.25 to 1.00
Thereafter 2.50 to 1.00
SECTION 6.13. LEVERAGE RATIO. The Borrower will not permit
the Leverage Ratio as of the last day of any fiscal quarter ending on or about
any date set forth below to exceed the ratio set forth opposite such period:
PERIOD RATIO
------ -----
June 30, 2003 5.25 to 1.00
September 30, 2003 5.25 to 1.00
December 31, 2003 5.25 to 1.00
March 31, 2004 5.25 to 1.00
June 30, 2004 5.00 to 1.00
September 30, 2004 5.00 to 1.00
December 31, 2004 4.75 to 1.00
March 31, 2005 4.50 to 1.00
June 30, 2005 4.50 to 1.00
September 30, 2005 4.25 to 1.00
December 31, 2005 4.25 to 1.00
March 31, 2006 4.00 to 1.00
June 30, 2006 4.00 to 1.00
September 30, 2006 3.75 to 1.00
December 31, 2006 3.75 to 1.00
Thereafter 3.50 to 1.00
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SECTION 6.14. MAXIMUM CAPITAL EXPENDITURES. (a) The Borrower
will not, nor will it permit any Subsidiary to, incur or make any Capital
Expenditures during any fiscal year set forth below in an amount exceeding the
amount set forth opposite such fiscal year:
MAXIMUM
FISCAL YEAR CAPITAL EXPENDITURES
----------- --------------------
2003 $ 7,000,000
2004 $ 8,000,000
Each fiscal year thereafter $10,000,000
(b) The amount of any Capital Expenditures permitted to be made in respect of
any fiscal year shall be increased by the unused amount of Capital Expenditures
that were permitted to be made during the immediately preceding fiscal year
pursuant to Section 6.14(a). Capital Expenditures in any fiscal year shall be
deemed to use, first, the amount for such fiscal year set forth in Section
6.14(a) and, second, any amount carried forward to such fiscal year pursuant to
this Section 6.14(b).
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any LC Disbursement when and as
the same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any Subsidiary in or in connection with any Loan
Document or any amendment or modification thereof or waiver thereunder, or in
any report, certificate, financial statement or other document furnished
pursuant to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been incorrect in
any material respect on or as of the date when made or deemed made;
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(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.04 (with respect
to the existence of the Borrower), 5.11, 5.13(c) or 5.13(d) or in Article VI;
(e) any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in any Loan Document (other than
those specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the request
of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in respect
of any Material Indebtedness, when and as the same shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; PROVIDED that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower or any Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Subsidiary or for a substantial part of
its assets, and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any formal action
for the purpose of effecting any of the foregoing;
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(j) the Borrower or any Subsidiary shall become unable, admit
in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $3,000,000 shall be rendered against the Borrower,
any Subsidiary or any combination thereof and the same shall remain undischarged
for a period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor
to attach or levy upon any assets of the Borrower or any Subsidiary to enforce
any such judgment;
(l) an ERISA Event shall have occurred that, in the reasonable
opinion of the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in an unsatisfied
liability of the Borrower and the Subsidiaries in an aggregate amount exceeding
$5,000,000 for all periods;
(m) (i) any Loan Document shall for any reason be asserted by
the Borrower or any Subsidiary Loan Party not to be a legal, valid and binding
obligation of any party thereto; (ii) any Lien purported to be created under any
Security Document shall cease to be, or shall be asserted by any Loan Party not
to be, a valid and perfected Lien on any Collateral, with the priority required
by the applicable Security Document, except (A) as a result of the sale or other
disposition of the applicable Collateral in a transaction permitted under the
Loan Documents or (B) as a result of the Administrative Agent's failure to
maintain possession of any stock certificates, promissory notes or other
instruments delivered to it under the Collateral Agreement or (iii) the
Guarantees pursuant to the Security Documents by the Subsidiary Loan Parties of
any of the Obligations shall cease to be in full force and effect (other than in
accordance with the terms hereof) or shall be asserted by any Subsidiary Loan
Party not to be in effect or not to be legal, valid and binding obligations; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall
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automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Banks hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms of the Loan Documents,
together with such actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent 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 the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth in the Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated by the
Loan Documents that the Administrative Agent is required to exercise in writing
as directed by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02), and (c) except as expressly set forth in the Loan Documents and except
for documents, notices and other information to be provided to the Lenders
through the Administrative Agent, the Administrative Agent shall not have any
duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of the Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.02) or in the
absence of its own gross negligence or wilful misconduct. The Administrative
Agent shall not be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by the Borrower or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the
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contents of any certificate, report or other document delivered thereunder or in
connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time upon 30 days' notice to the Lenders, the Issuing Banks and
the Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor, which successor shall be approved by the Borrower
in writing, such approval not to be unreasonably withheld. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Banks, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
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respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. (a) Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(i) if to the Borrower, to it at ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Executive
Vice President and Chief Financial Officer (Telecopy No. (904)
358-2486), with a copy to Parthenon Capital, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇) ;
(ii) if to the Administrative Agent, to Credit Suisse First
Boston, Eleven Madison Avenue, New York, New York 10010, Attention of
Agency Group (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(iii) if to an Issuing Bank, to it at its address (or
facsimile number set forth in its Administrative Questionnaire (unless
such Issuing Bank has specified another address or facsimile number by
notice to the Borrower and the Administrative Agent));
(iv) if to the Swingline Lender, to it at Eleven ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of Agency Group (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(v) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
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(b) Notices and other communications to the Lenders hereunder
may be delivered or furnished by electronic communications pursuant to
procedures approved by the Administrative Agent; PROVIDED that the foregoing
shall not apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; PROVIDED that approval of such procedures may be
limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number
for notices and other communications hereunder by notice to the Administrative
Agent. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 9.02. WAIVERS; AMENDMENTS. (a) No failure or delay by
the Administrative Agent, any Issuing Bank or any Lender in exercising any right
or power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing
Banks and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan Document or consent to
any departure by any Loan Party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing, the
making of a Loan or issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether the Administrative Agent, any
Lender or any Issuing Bank may have had notice or knowledge of such Default at
the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing entered
into by the Administrative Agent and the Loan Party or Loan Parties that are
parties thereto, in each case with the consent of the Required Lenders; PROVIDED
that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan
or LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the maturity of any Loan, or any scheduled date of payment of the
principal amount of any Term Loan under Section 2.10, or the required date of
reimbursement of any LC Disbursement, or any date for the payment of any
interest or fees payable hereunder, or reduce the amount of, waive or excuse any
such payment, postpone the scheduled date of expiration of any Commitment or
permit the expiration date of any Letter of Credit to be after the fifth
Business Day prior to the
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Revolving Maturity Date, without the written consent of each Lender affected
thereby, (iv) change Section 2.18(b) or (c) in a manner that would alter the pro
rata sharing of payments required thereby, without the written consent of each
Lender, (v) change any of the provisions of this Section or the percentage set
forth in the definition of the term "Required Lenders" or any other provision of
any Loan Document specifying the number or percentage of Lenders (or Lenders of
any Class) required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender (or each Lender of such Class, as the case may be), (vi) release any
Subsidiary Loan Party from its Guarantee under the Collateral Agreement (except
as expressly provided in the Collateral Agreement), or limit its liability in
respect of such Guarantee, without the written consent of each Lender, (vii)
release all or substantially all of the Collateral from the Liens of the
Security Documents (except as expressly provided in the Collateral Agreement),
without the written consent of each Lender, or (viii) change any provisions of
any Loan Document in a manner that by its terms adversely affects the rights in
respect of payments due to Lenders holding Loans of any Class differently than
those holding Loans of any other Class, without the written consent of Lenders
holding a majority in interest of the outstanding Loans and unused Commitments
of each adversely affected Class; PROVIDED FURTHER that (A) no such agreement
shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, any Issuing Bank or the Swingline Lender without the prior
written consent of the Administrative Agent, such Issuing Bank or the Swingline
Lender, as the case may be, and (B) any waiver, amendment or modification of
this Agreement that by its terms affects the rights or duties under this
Agreement of the Revolving Lenders (but not the Term Loan Lenders) or the Term
Loan Lenders (but not the Revolving Lenders) may be effected by an agreement or
agreements in writing entered into by the Borrower and the requisite percentage
in interest of the affected Class of Lenders that would be required to consent
thereto under this Section if such Class of Lenders were the only Class of
Lenders hereunder at the time. Notwithstanding the foregoing, any provision of
this Agreement may be amended by an agreement in writing entered into by the
Borrower, the Required Lenders and the Administrative Agent (and, if their
rights or obligations are affected thereby, the Issuing Banks and the Swingline
Lender) if (i) by the terms of such agreement the Commitment of each Lender not
consenting to the amendment provided for therein shall terminate upon the
effectiveness of such amendment and (ii) at the time such amendment becomes
effective, each Lender not consenting thereto receives payment in full of the
principal of and interest accrued on each Loan made by it and all other amounts
owing to it or accrued for its account under this Agreement. In connection with
any proposed amendment, modification, waiver or termination (a "PROPOSED
CHANGE") requiring the consent of all affected Lenders, if the consent of the
Required Lenders to such Proposed Change is obtained, but the consent to such
Proposed Change of other Lenders whose consent is required is not obtained (any
such Lender whose consent is not obtained as described in this Section 9.02(b)
being referred to as a "NON-CONSENTING LENDER"), then, so long as the Lender
that is acting as the Administrative Agent is not a Non-Consenting Lender, at
the Borrower's request, any assignee that is acceptable to the Administrative
Agent shall have the right, with the Administrative Agent's consent, to purchase
from such Non-Consenting Lender, and such Non-Consenting Lender agrees that it
shall, upon the Borrower's request, sell and assign
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to such assignee, at no expense to such Non-Consenting Lender, all of the
Commitments, Term Loans and Revolving Exposure of such Non-Consenting Lender for
an amount equal to the principal balance of all Term Loans and Revolving Loans
(and funded participations in Swingline Loans and unreimbursed LC Disbursements)
held by such Non-Consenting Lender and all accrued interest and fees with
respect thereto through the date of sale, such purchase and sale to be
consummated pursuant to an executed Assignment and Assumption in accordance with
Section 9.04(b).
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Agents and their respective Affiliates (including expenses incurred in
connection with due diligence), including the reasonable fees, charges and
disbursements of counsel for the Agents, in connection with the syndication of
the credit facilities provided for herein, the preparation and administration of
the Loan Documents or any amendments, modifications or waivers of the provisions
thereof (whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by any Issuing
Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, any Issuing Bank or
any Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such reasonable out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent,
each Issuing Bank and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "INDEMNITEE") against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the reasonable fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of any Loan Document or any other agreement or instrument
contemplated hereby, the performance by the parties to the Loan Documents of
their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit
or the use of the proceeds therefrom (including any refusal by an Issuing Bank
to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or Release of
Hazardous Materials on or from any Mortgaged Property or any other property
currently or formerly owned or operated by the Borrower or any of the
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of the Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; PROVIDED that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses,
80
claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction to have resulted from the gross negligence or wilful
misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent, any Issuing Bank or any
Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, the applicable Issuing Bank
or applicable Swingline Lender, as the case may be, such Lender's pro rata share
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; PROVIDED that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent, the
applicable Issuing Bank or the applicable Swingline Lender in its capacity as
such. For purposes hereof, a Lender's "pro rata share" shall be determined based
upon its share of the sum of the total Revolving Exposures, outstanding Term
Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be payable not
later than three Business Days after written demand therefor.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) The provisions
of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby (including
any Affiliate of an Issuing Bank that issues any Letter of Credit), except that
(i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
such attempted assignment or transfer by the Borrower without such consent shall
be null and void) and (ii) no Lender may assign or otherwise transfer its rights
or obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of any Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, any Issuing Bank and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitments and the Loans at the
81
time owing to it), with the prior written consent (such consent not to be
unreasonably withheld) of:
(A) the Borrower, PROVIDED that no consent of the Borrower
shall be required for an assignment to a Lender, an Affiliate of a
Lender, an Approved Fund or, if an Event of Default has occurred and is
continuing, or if such assignment is made in connection with the
syndication of the Revolving Commitments and the Term Loans by the
Agents, any other assignee;
(B) the Administrative Agent; and
(C) in the case of an assignment of all or a portion of a
Revolving Commitment or any Lender's obligations in respect of its LC
Exposure, the Issuing Banks and the Swingline Lender.
(ii) Assignments shall be subject to the following conditions:
(A) except in the case of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund or an assignment of the
entire remaining amount of the assigning Lender's Commitment, the
amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $2,500,000 (or, in the case of the Term
Loans, $1,000,000) unless each of the Borrower and the Administrative
Agent otherwise consent, provided that no such consent of the Borrower
shall be required if an Event of Default has occurred and is
continuing;
(B) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, PROVIDED that this clause shall not
be construed to prohibit assignment of a proportionate part of all the
assigning Lender's rights and obligations in respect of one Class of
Commitments or Loans;
(C) the parties to each assignment shall (1) electronically
execute and deliver to the Administrative Agent an Assignment and
Assumption via an electronic settlement system acceptable to the
Administrative Agent (which initially shall be ClearPar, LLC) or (2) if
no such system shall be acceptable to the Administrative Agent,
manually execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee of
$3,500; PROVIDED that only one such fee shall be payable in connection
with simultaneous assignments to or by two or more Approved Funds; and
(D) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire.
For purposes of this Section 9.04(b), the terms "Approved
Fund" and "CLO" have the following meanings:
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"APPROVED FUND" means (a) a CLO and (b) with respect to any
Lender that is a fund which invests in bank loans and similar extensions of
credit, any other fund that invests in bank loans and similar extensions of
credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"CLO" means any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its business and is administered or managed by a Lender or an Affiliate of
such Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Assumption the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 9.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans and LC Disbursements owing to, each Lender pursuant to the
terms hereof from time to time (the "REGISTER"). The entries in the Register
shall be conclusive in the absence of clearly demonstrable error, and the
Borrower, the Administrative Agent, the Issuing Banks and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower,
any Issuing Bank and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
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(c) (i) Any Lender may, without the consent of the Borrower,
the Administrative Agent, any Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitments and the Loans owing to it);
PROVIDED that (A) such Lender's obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (C) the Borrower, the
Administrative Agent, the Issuing Banks and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; PROVIDED
that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.18(c) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any
greater payment under Section 2.15 or 2.17 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 2.17
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.17(e) as though it were a Lender.
(d) Any Lender may at any time pledge, assign or grant a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge, assignment or grant to
secure obligations to a Federal Reserve Bank, and this Section shall not apply
to any such pledge, assignment or grant of a security interest; PROVIDED that no
such pledge, assignment or grant of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such pledgee, assignee
or grantee for such Lender as a party hereto.
SECTION 9.05. SURVIVAL. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent,
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any Issuing Bank or any Lender may have had notice or knowledge of any Default
or incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any fee or any other amount payable
under this Agreement is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.
SECTION 9.06. COUNTERPARTS; INTEGRATION; 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 other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If an Event of Default shall
have occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender or Affiliate to or for the credit or the account
of the Borrower against any of and all the obligations of the Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The applicable Lender shall notify
the Borrower and the Administrative Agent of such setoff or application;
PROVIDED that any failure to give or delay in giving such notice shall not
affect the validity of any such setoff or application under this Section. The
rights of each Lender under this
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Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO
SERVICE OF PROCESS. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to any Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Administrative Agent, any Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT
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AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. HEADINGS. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. CONFIDENTIALITY. Each of the Administrative
Agent, the Issuing Banks and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential
basis from a source other than the Borrower; PROVIDED that such source is not
actually known by such disclosing party to be bound by an agreement containing
provisions substantially the same as those of this Section. For the purposes of
this Section, "INFORMATION" means all information received from the Borrower
relating to the Borrower or its business, other than any such information that
is available to the Administrative Agent, any Issuing Bank or any Lender on a
nonconfidential basis prior to disclosure by the Borrower; PROVIDED that, in the
case of information received from the Borrower after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information. Notwithstanding anything herein to the contrary, any
party to this Agreement (and each employee, representative, or other agent of
any party to this Agreement) may disclose to any and all Persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
contemplated by this Agreement, and all materials of any kind (including
opinions or other tax analyses) related to such tax treatment and tax structure;
PROVIDED that this sentence shall not permit any Person to disclose the name of,
or other information that would identify, any party to such
87
transactions or to disclose confidential commercial information regarding such
transactions.
SECTION 9.13. INTEREST RATE LIMITATION. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "CHARGES"), shall
exceed the maximum lawful rate (the "MAXIMUM RATE") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
INTERLINE BRANDS, INC.
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
89
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman
Islands branch, individually
and as Administrative Agent,
by /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Director
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
90
JPMORGAN CHASE BANK, individually and as
Syndication Agent,
by /s/ ▇▇▇▇▇▇ ▇. Kozlerk
------------------------------------
Name: ▇▇▇▇▇▇ ▇. Kozlerk
Title: Vice President
91
FLEET NATIONAL BANK,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
GMAC COMMERCIAL FINANCE LLC,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
WACHOVIA BANK N.A.,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK,
by /s/ ▇▇▇▇▇▇▇ ▇. Warrent
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
ORIX FINANCIAL SERVICES, INC.,
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President