EXHIBIT 99.2
[EXECUTION COPY]
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CREDIT AGREEMENT
Dated as of February 28, 2003
among
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM, INC.
ALLRIGHT CORPORATION
▇▇▇▇▇▇ SYSTEM, INC.
CPS FINANCE, INC.
CENTRAL PARKING SYSTEM OF TENNESSEE, INC.,
as Borrowers,
and
The Subsidiaries of Central Parking Corporation
from time to time party hereto,
as Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer,
and
FLEET NATIONAL BANK,
as Syndication Agent
JPMORGAN CHASE BANK,
as Co-Documentation Agent
SUNTRUST BANK,
as Co-Documentation Agent
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC
as
Lead Arranger and Book Manager
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.................................................. 1
1.01 Defined Terms................................................................ 1
1.02 Other Interpretive Provisions................................................ 26
1.03 Accounting Terms............................................................. 27
1.04 Rounding..................................................................... 27
1.05 References to Agreements and Laws............................................ 27
1.06 Times of Day................................................................. 28
1.07 Letter of Credit Amounts..................................................... 28
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS............................................ 28
2.01 Revolving Loans and Tranche B Term Loans..................................... 28
2.02 Borrowings, Conversions and Continuations of Loans........................... 29
2.03 Letters of Credit............................................................ 30
2.04 Swing Line Loans............................................................. 38
2.05 Prepayments.................................................................. 41
2.06 Termination or Reduction of Aggregate Revolving Commitments.................. 43
2.07 Repayment of Loans........................................................... 43
2.08 Interest..................................................................... 45
2.09 Fees......................................................................... 45
2.10 Computation of Interest and Fees............................................. 46
2.11 Evidence of Debt............................................................. 46
2.12 Payments Generally........................................................... 47
2.13 Sharing of Payments.......................................................... 49
2.14 Joint and Several Liability of the Borrowers................................. 49
2.15 Appointment of Parent as Agent for Borrowers................................. 51
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY.......................................... 51
3.01 Taxes........................................................................ 51
3.02 Illegality................................................................... 53
3.03 Inability to Determine Rates................................................. 53
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves
on Eurodollar Rate Loans. ................................................... 53
3.05 Funding Losses............................................................... 54
3.06 Matters Applicable to all Requests for Compensation.......................... 55
3.07 Survival..................................................................... 55
ARTICLE IV GUARANTY......................................................................... 55
4.01 The Guaranty................................................................. 55
4.02 Obligations Unconditional.................................................... 56
4.03 Reinstatement................................................................ 57
4.04 Certain Additional Waivers................................................... 57
4.05 Remedies..................................................................... 57
4.06 Rights of Contribution....................................................... 57
4.07 Guarantee of Payment; Continuing Guarantee................................... 58
ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS......................................... 59
5.01 Conditions of Initial Credit Extension....................................... 59
5.02 Conditions to all Credit Extensions.......................................... 61
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ARTICLE VI REPRESENTATIONS AND WARRANTIES................................................... 62
6.01 Existence, Qualification and Power; Compliance with Laws..................... 62
6.02 Authorization; No Contravention.............................................. 62
6.03 Governmental Authorization; Other Consents................................... 63
6.04 Binding Effect............................................................... 63
6.05 Financial Statements; No Material Adverse Effect............................. 63
6.06 Litigation................................................................... 64
6.07 No Default................................................................... 64
6.08 Ownership of Property; Liens................................................. 64
6.09 Environmental Compliance..................................................... 65
6.10 Insurance.................................................................... 65
6.11 Taxes........................................................................ 66
6.12 ERISA Compliance............................................................. 66
6.13 Subsidiaries................................................................. 66
6.14 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act. ........................................................ 67
6.15 Disclosure................................................................... 67
6.16 Compliance with Laws......................................................... 68
6.17 Intellectual Property........................................................ 68
6.18 Solvency..................................................................... 68
6.19 Investments.................................................................. 68
6.20 Business Locations........................................................... 68
6.21 Brokers' Fees................................................................ 68
6.22 Labor Matters................................................................ 69
6.23 Representations and Warranties from Other Loan Documents..................... 69
ARTICLE VII AFFIRMATIVE COVENANTS........................................................... 69
7.01 Financial Statements......................................................... 69
7.02 Certificates; Other Information.............................................. 70
7.03 Notices and Information...................................................... 71
7.04 Payment of Obligations....................................................... 72
7.05 Preservation of Existence, Etc............................................... 72
7.06 Maintenance of Properties.................................................... 72
7.07 Maintenance of Insurance..................................................... 73
7.08 Compliance with Laws......................................................... 73
7.09 Books and Records............................................................ 73
7.10 Inspection Rights............................................................ 73
7.11 Use of Proceeds.............................................................. 74
7.12 Additional Guarantors........................................................ 74
7.13 Pledged Assets............................................................... 74
7.14 Interest Rate Protection Agreement........................................... 75
ARTICLE VIII NEGATIVE COVENANTS............................................................. 76
8.01 Liens........................................................................ 76
8.02 Investments.................................................................. 77
8.03 Indebtedness................................................................. 80
8.04 Fundamental Changes.......................................................... 81
8.05 Dispositions................................................................. 81
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8.06 Restricted Payments.......................................................... 82
8.07 Change in Nature of Business................................................. 82
8.08 Transactions with Affiliates and Insiders.................................... 82
8.09 Burdensome Agreements........................................................ 83
8.10 Use of Proceeds.............................................................. 83
8.11 Financial Covenants.......................................................... 83
8.12 Prepayment of Other Indebtedness, Etc........................................ 84
8.13 Organization Documents; Fiscal Year.......................................... 84
8.14 Ownership of Subsidiaries.................................................... 84
8.15 Sale Leasebacks.............................................................. 85
8.16 Capital Expenditures......................................................... 85
ARTICLE IX EVENTS OF DEFAULT AND REMEDIES................................................... 85
9.01 Events of Default............................................................ 85
9.02 Remedies Upon Event of Default............................................... 87
9.03 Application of Funds......................................................... 88
ARTICLE X ADMINISTRATIVE AGENT.............................................................. 89
10.01 Appointment and Authorization of Administrative Agent........................ 89
10.02 Delegation of Duties......................................................... 89
10.03 Liability of Administrative Agent............................................ 90
10.04 Reliance by Administrative Agent............................................. 90
10.05 Notice of Default............................................................ 91
10.06 Credit Decision; Disclosure of Information by Administrative Agent........... 91
10.07 Indemnification of Administrative Agent...................................... 91
10.08 Administrative Agent in its Individual Capacity.............................. 92
10.09 Successor Administrative Agent............................................... 92
10.10 Administrative Agent May File Proofs of Claim................................ 93
10.11 Collateral and Guaranty Matters.............................................. 94
10.12 Other Agents; Arrangers and Managers......................................... 94
ARTICLE XI MISCELLANEOUS.................................................................... 95
11.01 Amendments, Etc.............................................................. 95
11.02 Notices and Other Communications; Facsimile Copies........................... 97
11.03 No Waiver; Cumulative Remedies............................................... 98
11.04 Attorney Costs, Expenses and Taxes........................................... 99
11.05 Indemnification by the Borrowers............................................. 99
11.06 Payments Set Aside........................................................... 100
11.07 Successors and Assigns....................................................... 100
11.08 Confidentiality.............................................................. 104
11.09 Set-off...................................................................... 104
11.10 Interest Rate Limitation..................................................... 105
11.11 Counterparts................................................................. 105
11.12 Integration.................................................................. 105
11.13 Survival of Representations, Warranties and Covenants........................ 105
11.14 Severability................................................................. 106
11.15 Tax Forms.................................................................... 106
11.16 Replacement of Lenders....................................................... 108
11.17 Governing Law................................................................ 108
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11.18 Waiver of Right to Trial by Jury............................................. 109
SIGNATURES.................................................................................. S-1
iv
SCHEDULES
1.01 Existing Letters of Credit
1.02 Preferred Stock
2.01 Commitments and Pro Rata Shares
6.03 Required Consents, Authorizations, Notices and Filings
6.10 Insurance
6.13(a) Corporate Structure
6.13(b) Subsidiaries
6.17 Intellectual Property Matters
6.20 Real Properties
6.22 Labor Matters
8.01 Existing Permitted Liens
8.02 Existing Permitted Investments
8.03 Existing Permitted Indebtedness
11.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
2.02 Form of Loan Notice
2.04 Form of Swing Line Loan Notice
2.11(a) Form of Revolving Note
2.11(b) Form of Swingline Note
2.11(c) Form of Tranche B Term Note
7.02(b) Form of Compliance Certificate
7.12 Form of Joinder Agreement
7.13 Form of Pledge Agreement
11.07 Form of Assignment and Assumption
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CREDIT AGREEMENT
This CREDIT AGREEMENT (as amended, modified, restated or supplemented
from time to time, the "Agreement") is entered into as of February 28, 2003 by
and among CENTRAL PARKING CORPORATION, a Tennessee corporation ("CPC" or the
"Parent"), CENTRAL PARKING SYSTEM, INC., a Tennessee corporation ("CPS"),
ALLRIGHT CORPORATION, a Delaware corporation ("Allright"), ▇▇▇▇▇▇ SYSTEM, INC.,
a Delaware corporation ("▇▇▇▇▇▇"), CPS FINANCE, INC., a Delaware corporation
("CPSF"), CENTRAL PARKING SYSTEM OF TENNESSEE, INC., a Tennessee corporation
("CPST"), (CPC, CPS, Allright, ▇▇▇▇▇▇, CPSF and CPST are hereinafter referred to
individually as a "Borrower" and collectively as the "Borrowers"), the
Subsidiary Guarantors (as defined herein), the Lenders (as defined herein), and
BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer
(each, as defined herein) and FLEET NATIONAL BANK, as Syndication Agent and
JPMORGAN CHASE BANK and SUNTRUST BANK, as Co-Syndication Agents.
The Borrowers have requested that the Lenders provide credit facilities
in an aggregate amount of $350,000,000 (the "Credit Facilities") for the
purposes hereinafter set forth, and the Lenders are willing to do so on the
terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS.
As used in this Agreement, the following terms shall have the meanings
set forth below:
"Acquisition", by any Person, means the acquisition by such Person, in a
single transaction or in a series of related transactions, of all of the Capital
Stock or all or substantially all of the Property of another Person and whether
for cash, property, services, assumption of Indebtedness, securities or
otherwise.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under this Agreement and the other Loan Documents, or any
successor administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 11.02 or such other
address or account as the Administrative Agent may from time to time notify the
Borrowers and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any 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. "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 the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto. Without limiting the generality
of the foregoing, a Person shall be deemed to be Controlled by another Person if
such other Person possesses, directly or indirectly, power to vote 5% or more of
the securities having ordinary voting power for the election of directors,
managing general partners or the equivalent.
"Agent-Related Persons" means the Administrative Agent, together with
its Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Revolving Commitments" means the Revolving Commitments of all
the Lenders. The initial amount of the Aggregate Revolving Commitments in effect
on the Closing Date is ONE HUNDRED SEVENTY FIVE MILLION DOLLARS ($175,000,000).
"Agreement" shall have the meaning assigned to such term in the heading
hereof.
"Allright" means Allright Corporation, a Delaware corporation.
"Applicable Rate" means each of the following percentages per annum, as
applicable, based upon the Consolidated Leverage Ratio as set forth in the most
recent Compliance Certificate received by the Administrative Agent pursuant to
Section 7.02(b):
APPLICABLE RATES
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PRICING CONSOLIDATED EURODOLLAR RATE BASE RATE LOANS LETTER OF CREDIT COMMITMENT FEE
LEVEL LEVERAGE RATIO LOANS FEES
------- ----------------- --------------- --------------- ---------------- -----------------
1 < 2.25 to 1.0 1.75% 0.25% 1.75% 0.375%
2 > 2.25 to 1.0 2.00% 0.50% 2.00% 0.50%
but < 2.75 to 1.0
3 > 2.75 to 1.0 2.25% 0.75% 2.25% 0.50%
but < 3.25 to 1.0
4 > 3.25 to 1.0 2.75% 1.25% 2.75% 0.50%
Any increase or decrease in the Applicable Rates resulting from a change in the
Consolidated Leverage Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is delivered pursuant to
Section 7.02(b); provided, however, that if a Compliance Certificate is not
delivered when due in accordance with such Section, then Pricing Level 4 shall
apply as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered until the first Business Day
after the date on which such Compliance Certificate is delivered. The Applicable
Rates in effect from the Closing
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Date through the date that the Parent delivers the Compliance Certificate for
the fiscal quarter ending March 31, 2003 shall be determined based upon Pricing
Level 3.
"Arranger" means Banc of America Securities LLC, in its capacity as
co-lead arranger and joint book manager.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit 11.07.
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel and, without
duplication, the reasonable allocated cost of internal legal services and all
expenses and disbursements of internal counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear as
debt on a balance sheet of such Person prepared as of such date in accordance
with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized
amount of the remaining lease payments under the relevant lease that would
appear as debt on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease were accounted for as a Capital Lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Parent and its Subsidiaries for the fiscal year ended September 30,
2002, and the related consolidated statements of earnings, shareholders' equity
and cash flows for such fiscal year of the Parent and its Subsidiaries,
including the notes thereto.
"Availability Period" means, with respect to the Revolving Commitments,
the period from the Closing Date to the earliest of (a) the Revolving Loan
Maturity Date, (b) the date of termination of the Aggregate Revolving
Commitments pursuant to Section 2.06 and (c) the date of termination of the
commitment of each Lender to make Loans and of the obligation of the L/C Issuer
to make L/C Credit Extensions pursuant to Section 9.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Borrowers" has the meaning specified in the heading hereof.
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"Borrowing" means a borrowing consisting of simultaneous Loans of the
same Type and, in the case of Eurodollar Rate Loans, having the same Interest
Period made by each of the Lenders pursuant to Section 2.01.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent's Office is located
and, if such day relates to any Eurodollar Rate Loan, means any such day on
which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.
"Businesses" means, at any time, a collective reference to the
businesses operated by the Consolidated Parties at such time.
"Capital Lease" means, as applied to any Person, any lease of any
Property (whether real, personal or mixed) by that Person as lessee which, in
accordance with GAAP, is required to be accounted for as a capital lease on the
balance sheet of that Person.
"Capital Stock" means (i) in the case of a corporation, capital stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (iii) in the case of a partnership, partnership interests
(whether general or limited), (iv) in the case of a limited liability company,
membership interests and (v) any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Cash Equivalents" means, as at any date, (a) securities issued or
directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with maturities
of not more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within six
months of the date of acquisition, (d) repurchase agreements entered into by any
Person with a bank or trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of $500,000,000 for
direct obligations issued by or fully guaranteed by the United States in which
such Person shall have a perfected first priority security interest (subject to
no other Liens) and having, on the date of purchase thereof, a fair market value
of at least 100% of the amount of the repurchase obligations and (e)
Investments, classified in accordance with GAAP as current assets, in money
market investment programs registered under the Investment Company Act of 1940,
as amended, which are administered by reputable financial institutions having
capital of at
4
least $500,000,000 and the portfolios of which are limited to Investments of the
character described in the foregoing subdivisions (a) through (d).
"Change of Control" means that, except for members of the Monroe J.
Carell, Jr. Group, any Person or two or more Persons acting in concert shall
have acquired beneficial ownership, directly or indirectly, of, or shall have
acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their acquisition of
or control over, Voting Stock of the Parent (or other securities convertible
into such Voting Stock) representing 30% or more of the combined voting power of
all Voting Stock of the Parent.
"Closing Date" means February 28, 2003.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means a collective reference to all real and personal
Property (other than Excluded Property) with respect to which Liens in favor of
the Administrative Agent are purported to be granted pursuant to and in
accordance with the terms of the Collateral Documents.
"Collateral Documents" means a collective reference to the Pledge
Agreement and such other security documents as may be executed and delivered by
the Loan Parties pursuant to the terms of Section 7.13.
"Commitment" means, as to each Lender, the Revolving Commitment of such
Lender.
"Commitment Fee" means that certain fee described in Section 2.09(a).
"Compliance Certificate" means a certificate substantially in the form
of Exhibit 7.02(b).
"Consolidated Capital Expenditures" means for any period for the
Consolidated Parties on a consolidated basis, all capital expenditures, as
determined in accordance with GAAP, including, without duplication, the
principal component of payments made under Capital Leases and the aggregate
consideration paid with respect to Acquisitions; provided that the term
"Consolidated Capital Expenditures" shall not include, for purposes hereof, (i)
expenditures of proceeds of insurance settlements and other settlements in
respect of lost, destroyed or damaged assets, equipment or other property to the
extent such expenditures are made to replace or repair such lost, destroyed or
damaged assets, equipment or other property or otherwise to acquire assets or
properties useful in the business of the Consolidated Parties and (ii) the Net
Cash Proceeds of Dispositions to the extent such Net Cash Proceeds are used to
replace or repair assets, equipment or other property or otherwise to acquire
assets or properties useful in the business of the Consolidated Parties within
180 days of the date of such Disposition.
"Consolidated Cash Taxes" means for any period for Consolidated Parties
on a consolidated basis, the aggregate of all taxes, as determined in accordance
with GAAP, to the extent the same are paid in cash during such period.
5
"Consolidated EBITDA" means for any period for the Consolidated Parties
on a consolidated basis, the sum of (a) Consolidated Net Income, plus (b) an
amount which, in the determination of Consolidated Net Income, has been deducted
for the following (without duplication): (i) Consolidated Interest Expense, (ii)
Consolidated Cash Taxes, (iii) depreciation and amortization expense and (iv)
dividends paid on the Preferred Stock on the dates and at the rate set forth in
the description of the Preferred Stock contained in Schedule 1.02 (but with
respect to the Preferred Stock, without duplication to the extent a comparable
amount is taken by the Parent as interest expense on the related subordinated
debt) all as determined in accordance with GAAP.
"Consolidated EBITDAR" means, for any period, with respect to the
Consolidated Parties on a consolidated basis, the sum of Consolidated EBITDA for
such period plus an amount which in the determination of Consolidated Net Income
for such period has been deducted for Consolidated Rent Expense, all as
determined in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, for the Consolidated
Parties on a consolidated basis, calculated as of any date of determination for
the most recent period of four fiscal quarters and taking into account
transactions on a Pro Forma Basis, as appropriate, the ratio of (a) Consolidated
EBITDAR for the applicable period minus Consolidated Capital Expenditures for
the applicable period (excluding the aggregate consideration paid with respect
to Acquisitions) minus Consolidated Cash Taxes for the applicable period to (b)
the sum of Consolidated Interest Expense for the applicable period plus
Consolidated Scheduled Funded Debt Payments for the immediately following
four-quarter period plus Consolidated Rent Expense for the applicable period
plus dividends paid on capital stock or equity securities of the Parent or the
PS Subsidiary (but with respect to the Preferred Stock, without duplication to
the extent a comparable amount is taken by the Parent as interest expense on the
related subordinated debt) for the applicable period.
"Consolidated Funded Indebtedness" means, as of any date of
determination, for the Consolidated Parties on a consolidated basis, without
duplication, the sum of (a) the principal portion of all obligations for
borrowed money, (b) the principal portion of all obligations evidenced by bonds,
debentures, notes or similar instruments, or upon which interest payments are
customarily made, (c) the principal portion of all obligations under conditional
sale or other title retention agreements relating to Property purchased by the
Consolidated Parties (other than customary reservations or retentions of title
under agreements with suppliers entered into in the ordinary course of
business), (d) the principal portion of all obligations issued or assumed as the
deferred purchase price of Property or services purchased by the Consolidated
Parties (other than trade debt incurred in the ordinary course of business and
due within six months of the incurrence thereof) which would appear as
liabilities on a balance sheet of the Consolidated Parties, (e) the Attributable
Indebtedness with respect to Capital Leases and Synthetic Lease Obligations, (f)
the principal portion of all obligations as an account party in respect of
letters of credit (other than trade letters of credit) and bankers' acceptances,
including, without duplication, all unreimbursed drafts drawn thereunder (less
the amount of any cash collateral securing any such letters of credit or and
bankers' acceptances), (g) all obligations to repurchase any securities issued
by the Consolidated Parties at any time prior to the Tranche B Term Loan
Maturity Date, which repurchase obligations are related to the issuance thereof,
including, without limitation, obligations commonly known as residual equity
appreciation
6
potential shares, (h) the aggregate amount of uncollected accounts receivable
subject at such time to a sale of receivables (or similar transaction) to the
extent such transaction is effected with recourse to the Consolidated Parties
(whether or not such transaction would be reflected on the balance sheet of the
Consolidated Parties in accordance with GAAP), (i) all Indebtedness of the types
described in the preceding clauses (a) through (h) that is owed by others and
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, Property owned or acquired by the Consolidated
Parties, whether or not the obligations secured thereby have been assumed, (j)
all Guarantees with respect to Indebtedness of the types described in the
preceding clauses (a) through (h) that is owed by another Person and (k) the
Indebtedness of the types described in the preceding clauses (a) through (h)
that is owed by any partnership or unincorporated joint venture in which a
Consolidated Party a general partner or a joint venturer to the extent such
Indebtedness is recourse to a Consolidated Party.
"Consolidated Interest Expense" means for any period with respect to the
Parent and its Subsidiaries on a consolidated basis, interest expense (including
the amortization of debt discount and premium, the interest component under
Capital Leases and the implied interest component of Synthetic Lease
Obligations), as determined in accordance with GAAP.
"Consolidated Leverage Ratio" means, as of any date of determination,
the ratio of (a) Consolidated Funded Indebtedness as of such date to (b)
Consolidated EBITDA for the period of the four fiscal quarters most recently
ended for which the Parent has delivered the Required Financial Information,
taking into account transactions on a Pro Forma Basis, as appropriate.
"Consolidated Net Income" means for any period, the net income with
respect to the Consolidated Parties on a consolidated basis as determined in
accordance with GAAP applied on a consistent basis, but excluding for purposes
of determining the Consolidated Leverage Ratio, Consolidated Senior Leverage
Ratio and the Consolidated Fixed Charge Coverage Ratio, minority interests and
any extraordinary gains or losses and any non-cash, non-recurring losses
incurred prior to the date hereof and no more than $10,000,000 during any four
quarter period hereafter.
"Consolidated Net Worth" means, as of any date of determination, the
consolidated shareholders' equity of the Consolidated Parties as of that date
determined in accordance with GAAP.
"Consolidated Parties" means a collective reference to the Parent and
its Subsidiaries, and "Consolidated Party" means any one of them.
"CPC" means Central Parking Corporation, a Tennessee corporation.
"CPS" means Central Parking System, Inc., a Tennessee corporation.
"CPSF" means CPS Finance, Inc., a Delaware corporation.
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"CPST" means Central Parking System of Tennessee, Inc., a Tennessee
corporation.
"Consolidated Rent Expense" means, for any period, with respect to the
Consolidated Parties on a consolidated basis, all rent payable under all
Operating Leases (whether leases of real property, personal property or mixed),
as determined in accordance with GAAP.
"Consolidated Scheduled Funded Debt Payments" means for any period for
the Consolidated Parties on a consolidated basis, the sum of all scheduled
payments of principal on Consolidated Funded Indebtedness, as determined in
accordance with GAAP. For purposes of this definition, "scheduled payments of
principal" (a) shall be determined without giving effect to any reduction of
such scheduled payments resulting from the application of any voluntary or
mandatory prepayments made during the applicable period, (b) shall be deemed to
include the principal component of scheduled payments with respect to
Attributable Indebtedness in respect of Capital Leases and Synthetic Lease
Obligations and (c) shall not include any voluntary prepayments or mandatory
prepayments required pursuant to Section 2.05.
"Consolidated Senior Funded Indebtedness" means Consolidated Funded
Indebtedness of the Consolidated Parties which is not Subordinated Indebtedness,
determined on a consolidated basis in accordance with GAAP applied on a
consistent basis.
"Consolidated Senior Leverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Senior Funded Indebtedness as of
such date to (b) Consolidated EBITDA for the period of the four fiscal quarters
most recently ended for which the Parent has delivered the Required Financial
Information, taking into account transactions on a Pro Forma Basis, as
appropriate.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any material agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" has the meaning specified in the definition of "Affiliate" set
forth in this Section 1.01.
"Credit Extension" means each of the following: (a) a Borrowing and (b)
an L/C Credit Extension.
"Debt Issuance" means the issuance by any Consolidated Party of any
Indebtedness of the type referred to in clause (a) or (b) of the definition
thereof set forth in this Section 1.01 (other than an Excluded Debt Issuance).
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
8
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus
(b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each
case to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans, participations in L/C Obligations or participations in
Swing Line Loans required to be funded by it hereunder within one Business Day
of the date required to be funded by it hereunder, (b) has otherwise failed to
pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when
due, unless the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any Sale and Leaseback Transaction) of any Property
by a Borrower or any Subsidiary (including the Capital Stock of any Subsidiary),
including any sale, assignment, transfer or other disposal, with or without
recourse, of any notes or accounts receivable or any rights and claims
associated therewith, but excluding (i) the sale, lease, license, transfer or
other disposition of inventory (other than any Real Property assets constituting
inventory) in the ordinary course of business of the Parent and its
Subsidiaries, (ii) the sale, lease, license, transfer or other disposition of
machinery and equipment no longer used or useful in the conduct of the business
of the Parent and its Subsidiaries, (iii) any sale, lease, license, transfer or
other disposition of Property by a Borrower or any Subsidiary to any Loan Party;
provided, that the Loan Parties shall cause to be executed and delivered such
documents, instruments and certificates as the Administrative Agent may request
so as to cause the Loan Parties to be in compliance with the terms of Section
7.13 after giving effect to such transaction, (iv) any sale, lease, license,
transfer or other disposition of Property by a Consolidated Party that is not a
Loan Party to any other Consolidated Party that is not a Loan Party, (v) any
Involuntary Disposition, (vi) any Disposition by a Borrower or any Subsidiary
constituting an Investment permitted by Section 8.02, (vii) any sale, lease,
license, transfer or other disposition of Property by any Foreign Subsidiary to
another Foreign Subsidiary and (viii) the sale of delinquent receivables in the
ordinary course of business in connection with the collection or compromise
thereof. The term "Disposition" shall not be deemed to include any Equity
Issuance.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"Eligible Assignee" has the meaning specified in Section 11.07(h).
9
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, licenses or governmental restrictions relating to pollution
and the protection of the environment or the release of any Hazardous Materials
into the environment, including those related to hazardous substances or wastes,
air emissions and discharges to waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrowers, any other Loan Party or any of
their respective Subsidiaries directly or indirectly resulting from or based
upon (a) violation of 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 into the environment 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 Issuance" means any issuance by any Consolidated Party to any
Person of (a) shares of its Capital Stock, (b) any shares of its Capital Stock
pursuant to the exercise of options or warrants, (c) any shares of its Capital
Stock pursuant to the conversion of any debt securities to equity or the
conversion of any class equity securities to any other class of equity
securities or (d) any options or warrants relating to its Capital Stock. The
term "Equity Issuance" shall not be deemed to include (a) any Disposition and
(b) any Equity Issuance by any Consolidated Party to any Consolidated Party.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Parent within the meaning of Section
414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes
of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Parent or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Parent or any ERISA Affiliate
from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or
the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Parent or any ERISA Affiliate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan:
10
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in
Dollars of an amount equal to the principal amount of such Eurodollar
Rate Loan (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not
appear on such page or service or such page or service shall not be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b)
are not available, the rate per annum (rounded to the next 1/10000th of
1%) determined by the Administrative Agent as the rate of interest at
which deposits in Dollars for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the Eurodollar
Rate Loan being made, continued or converted by Bank of America and with
a term equivalent to such Interest Period would be offered by Bank of
America's London Branch to major banks in the London interbank
eurodollar market at their request at approximately 4:00 p.m. (London
time) two Business Days prior to the first day of such Interest Period.
"Eurodollar Rate Loan" means a Loan that bears interest at a rate based
on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 9.01.
"Excess Cash Flow" means, with respect to any fiscal year of the
Consolidated Parties on a consolidated basis, an amount equal to (a)
Consolidated EBITDA minus (b) Consolidated Capital Expenditures of up to (i)
$45,000,000 for any fiscal year in which the Consolidated Leverage Ratio as of
the end of such fiscal year is greater than or equal to 2.75 to 1.0 and (ii)
$60,000,000 for any fiscal year in which the Consolidated Leverage Ratio as of
the end of such fiscal year is less than 2.75 to 1.0 minus (c) Consolidated
Interest Expense minus (d) Consolidated Cash Taxes minus (e) Consolidated
Scheduled Funded Debt Payments minus the aggregate amount of Restricted Payments
permitted by Section 8.06(c) and (d).
"Excluded Debt Issuance" means any Debt Issuance permitted by Section
8.03.
"Excluded Property" means, with respect to any Loan Party, including any
Person that becomes a Loan Party after the Closing Date as contemplated by
Section 7.12, (a) any leased real or personal Property which is located outside
of the United States, (b) any owned real or personal
11
Property which is located outside of the United States, (c) any owned
real Property which has a net book value of less than $500,000, provided that
the aggregate net book value of all real Property of all of the Loan Parties
excluded pursuant to this clause (c) shall not exceed $20,000,000, (d) any
leased real Property, except to the extent the Administrative Agent determines
that such leased real Property shall not be deemed "Excluded Property"
hereunder, (e) any leased personal Property, (f) any personal Property
(including, without limitation, motor vehicles) in respect of which perfection
of a Lien is not governed by the Uniform Commercial Code and (g) any Property
which, subject to the terms of Section 8.09, is subject to a Permitted Lien
pursuant to documents which prohibit such Loan Party from granting any other
Liens in such Property.
"Existing Credit Agreement" means that certain Credit Agreement dated as
of March 19, 1999 (as amended, modified and restated, the "Credit Agreement")
among Central Parking Corporation, Central Parking System, Inc., Central Parking
System Realty, Inc., Central Parking System of Massachusetts, Inc., CPC Finance
of Tennessee, Inc., ▇▇▇▇▇▇ System of Sudbury St., Inc., and Allright Holdings,
Inc., as borrowers, the guarantors identified therein, the Lenders identified
therein and Bank of America, N.A. (formerly known as NationsBank, N.A.), as
Agent.
"Existing Letters of Credit" means the Letters of Credit identified on
Schedule 1.01.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
"Fee Letter" means the letter agreement, dated January 6, 2003, among
the Parent, the Administrative Agent and the Arranger, as amended, modified and
restated.
"Foreign Lender" has the meaning specified in Section 11.15(a)(i).
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fully Satisfied" means, with respect to the Obligations as of any date,
that, as of such date, (a) all principal of and interest accrued to such date
which constitute Obligations shall have been irrevocably paid in full in cash,
(b) all fees, expenses and other amounts then due and payable which constitute
Obligations shall have been irrevocably paid in cash, (c) all outstanding
Letters of Credit shall have been (i) terminated, (ii) fully irrevocably Cash
Collateralized or
12
(iii) secured by one or more letters of credit on terms and conditions, and with
one or more financial institutions, reasonably satisfactory to the L/C Issuer
and (d) the Commitments shall have expired or been terminated in full.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee" means, as to any Person, any (a) any obligation, contingent
or otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term "Guarantee" as a verb has a corresponding meaning.
"Guarantors" means a collective reference to the Subsidiary Guarantors,
and "Guarantor" means any one of them.
"Guaranty" means the Guaranty made by the Guarantors pursuant to Article
IV hereof.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas,
13
infectious or medical wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.
"Indebtedness" means, with respect to any Person, 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, or
upon which interest payments are customarily made, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to
Property purchased by such Person (other than customary reservations or
retentions of title under agreements with suppliers entered into in the ordinary
course of business), (d) all obligations of such Person issued or assumed as the
deferred purchase price of Property or services purchased by such Person (other
than trade debt incurred in the ordinary course of business and due within six
months of the incurrence thereof) which would appear as liabilities on a balance
sheet of such Person, (e) all obligations of such Person under take-or-pay or
similar arrangements or under commodities agreements, (f) the Attributable
Indebtedness of such Person with respect to Capital Leases and Synthetic Lease
Obligations, (g) all net obligations of such Person under Swap Contracts, (h)
the principal portion of all obligations of such Person as an account party in
respect of letters of credit (other than trade letters of credit) and bankers'
acceptances, including, without duplication, all unreimbursed drafts drawn
thereunder (less the amount of any cash collateral securing any such letters of
credit or and bankers' acceptances), (i) all obligations of such Person to
repurchase any securities issued by such Person at any time prior to the Tranche
B Term Loan Maturity Date, which repurchase obligations are related to the
issuance thereof, including, without limitation, obligations commonly known as
residual equity appreciation potential shares, (j) the aggregate amount of
uncollected accounts receivable of such Person subject at such time to a sale of
receivables (or similar transaction) to the extent such transaction is effected
with recourse to such Person (whether or not such transaction would be reflected
on the balance sheet of such Person in accordance with GAAP), (k) all
Indebtedness of the types described in the preceding clauses (a) through (j)
that is owed by others and secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on, or payable out of the proceeds of production from, Property owned
or acquired by such Person, whether or not the obligations secured thereby have
been assumed, (l) all Guarantees of such Person with respect to Indebtedness of
the types described in the preceding clauses (a) through (j) that is owed by
another Person and (m) Indebtedness of the types described in the preceding
clauses (a) through (j) that is owed by any partnership or unincorporated joint
venture in which such Person is a general partner or a joint venturer to the
extent such Indebtedness is recourse to such Person. The amount of any net
obligation under any Swap Contract on any date shall be deemed to be the Swap
Termination Value thereof as of such date.
"Indemnified Liabilities" has the meaning set forth in Section 11.05.
"Indemnitees" has the meaning set forth in Section 11.05.
"Index Debt" means senior, unsecured, long-term indebtedness for
borrowed money of the Parent that is not guaranteed by any other Person (other
than one or more of the Consolidated Parties) or subject to any other credit
enhancement.
"Intellectual Property" has the meaning set forth in Section 6.17.
14
"Interest Payment Date" means (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Revolving Loan Maturity Date or Tranche B Term Loan Maturity Date, as
applicable; provided, however, that if any Interest Period for a Eurodollar Rate
Loan exceeds three months, the respective dates that fall every three months
after the beginning of such Interest Period shall also be Interest Payment
Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last
Business Day of each March, June, September and December and the Revolving Loan
Maturity Date or Tranche B Term Loan Maturity Date, as applicable.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Parent in its Loan Notice; provided
that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Revolving Loan
Maturity Date or the Tranche B Term Loan Maturity Date, as applicable.
"Investment" in any Person means (a) any Acquisition of such Person, (b)
any other acquisition of Capital Stock, bonds, notes, debentures or partnership,
joint venture or other ownership interests or other securities of such other
Person, (c) any deposit with, or advance, loan or other extension of credit to,
such Person (other than deposits made in connection with the purchase of
equipment, inventory and supplies in the ordinary course of business and
deposits in the nature of security for the performance of obligations to such
Person) or (d) any other capital contribution to or investment in such Person,
including, without limitation, any Guarantee (including any support for a letter
of credit issued on behalf of such Person) incurred for the benefit of such
Person and any Disposition to such Person for consideration less than the fair
market value of the Property disposed in such transaction, but excluding any
Restricted Payment to such Person. Investments which are capital contributions
or purchases of Capital Stock which have a right to participate in the profits
of the issuer thereof shall be valued at the amount (or, in the case of any
Investment made with Property other than cash, the book value of such Property)
actually contributed or paid (including cash and non-cash consideration and any
assumption of Indebtedness) to purchase such Capital Stock as of the date of
such contribution or payment. Investments which are loans, advances, extensions
of credit or Guarantees shall be valued at the principal amount of such loan,
advance or extension of credit outstanding as of the date of determination or,
as applicable, the principal
15
amount of the loan or advance outstanding as of the date of determination
actually guaranteed by such Guarantees.
"Involuntary Disposition" means any loss of, damage to or destruction
of, or any condemnation or other taking for public use of, any Property of any
Consolidated Party.
"IRS" means the United States Internal Revenue Service.
"Joinder Agreement" means a Joinder Agreement substantially in the form
of Exhibit 7.12 hereto, executed and delivered by a new Guarantor in accordance
with the provisions of Section 7.12.
"▇▇▇▇▇▇" means ▇▇▇▇▇▇ System, Inc., a Delaware corporation.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding
of its participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Borrowing of Revolving Loans.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means (i) Bank of America in its capacity as issuer of
Letters of Credit hereunder other than as provided in clause (ii) and (iii) of
this definition, or any successor issuer of Letters of Credit hereunder, (ii)
Fleet National Bank with respect to the Existing Letters of Credit issued by it
in a face amount not to exceed $5,000,000 in the aggregate and (iii) SunTrust
Bank with respect to the Existing Letters of Credit issued by it in a face
amount not to exceed $5,300,000 in the aggregate.
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings.
"Lenders" means a collective reference to the Persons identified as
"Lenders" on the signature pages hereto, together with any Person that
subsequently becomes a Lender by way of
16
assignment in accordance with the terms of Section 11.07, together with their
respective successors, and "Lender" means any one of them.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Parent (on
behalf of the Borrowers) and the Administrative Agent.
"Letter of Credit" means any letter of credit issued hereunder and shall
include the Existing Letters of Credit. A Letter of Credit may be a commercial
letter of credit or a standby letter of credit.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a Letter of Credit in the form from time to time in
use by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven days
prior to the Revolving Loan Maturity Date (or, if such day is not a Business
Day, the next preceding Business Day).
"Letter of Credit Fees" means those certain fees described in Section
2.03(i).
"Letter of Credit Sublimit" means an amount equal to SIXTY MILLION
DOLLARS ($60,000,000). The Letter of Credit Sublimit is part of, and not in
addition to, the Aggregate Revolving Commitments.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, and any financing lease having substantially the same economic effect
as any of the foregoing).
"Loan" means an extension of credit by a Lender to the Borrowers under
Article II in the form of a Revolving Loan, Swing Line Loan or Tranche B Term
Loan.
"Loan Documents" means this Agreement, each Note, each Letter of Credit,
each Letter of Credit Application, each Joinder Agreement, the Collateral
Documents and the Fee Letter.
"Loan Notice" means a notice of (a) a Borrowing of Revolving Loans or
Tranche B Term Loans, (b) a conversion of Loans from one Type to the other, or
(c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which,
if in writing, shall be substantially in the form of Exhibit 2.02.
"Loan Parties" means, collectively, the Borrowers and each Guarantor.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect on, the operations, business, assets, properties,
liabilities (actual or contingent), condition
17
(financial or otherwise) or prospects of the Parent or the Parent and its
Subsidiaries taken as a whole, or (b) a material adverse effect on or a material
impairment of (i) the legality, validity, binding effect or enforceability of
this Agreement or any of the other Loan Documents, (ii) the validity,
enforceability or priority of the Liens purported to be created by the Loan
Documents, or (iii) the rights or remedies of any Lender hereunder or under any
of the other Loan Documents.
"Material Foreign Subsidiary" means any Foreign Subsidiary that is
directly owned by the Parent or any Domestic Subsidiary and whose consolidated
revenue, as of the end of the most recently completed fiscal year of the Parent,
exceeds the equivalent of $10,000,000.
"Monroe J. Carell, Jr. Group" means Monroe Carell, Jr.; ▇▇▇ ▇▇▇▇▇
Carell; ▇▇▇▇▇ Carell ▇▇▇▇▇▇▇; ▇▇▇▇▇▇▇ Carell ▇▇▇▇▇; ▇▇▇▇▇ Carell ▇▇▇▇▇▇▇; The
Carell Children's Trust; Monroe Carell, Jr. 2000 Grantor Retained Annuity Trust;
1996 Carell Grandchildren's Trust F/B/O ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; 1996 Carell
Grandchildren's Trust F/B/O ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; 1996 Carell Grandchildren's
Trust F/B/O Carell ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; 1996 Carell Grandchildren's Trust F/B/O
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; 1996 Carell Grandchildren's Trust F/B/O ▇▇▇▇▇▇▇ Carell
▇▇▇▇▇▇▇; 1999 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust; The ▇▇▇ and Monroe Carell Foundation; The
▇▇▇▇▇▇▇ Carell ▇▇▇▇▇ Foundation; The ▇▇▇▇▇ Carell ▇▇▇▇▇▇▇ Foundation; The ▇▇▇▇▇
Carell ▇▇▇▇▇▇▇ Foundation; Carell Scholarship (at Vanderbilt University) Lead
Unitrust; 1990 Carell Grandchildren's Trust F/B/O ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; 1990
Carell Grandchildren's Trust F/B/O ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; 1990 Carell
Grandchildren's Trust F/B/O Carell ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; 1990 Carell Grandchildren's
Trust F/B/O ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; 1990 Carell Grandchildren's Trust F/B/O
▇▇▇▇▇▇▇ Carell ▇▇▇▇▇▇▇; 1990 Carell Grandchildren's Trust F/B/O ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇; 1997 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust; 1997 ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust; 1997
Carell ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Trust; 1997 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Trust; 1997 ▇▇▇▇▇▇▇
Carell ▇▇▇▇▇▇▇ Trust; 1997 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust; 1999 ▇▇▇▇▇▇▇ Carell ▇▇▇▇▇
Family Trust; 1999 ▇▇▇▇▇ Carell ▇▇▇▇▇▇▇ Family Trust; 1999 ▇▇▇▇▇ Carell ▇▇▇▇▇▇▇
Family Trust; ▇▇▇▇▇▇▇ Carell ▇▇▇▇▇ 2002 Marital Q-TIP Trust; ▇▇▇▇▇ Carell
▇▇▇▇▇▇▇ 2002 Marital Q-TIP Trust; ▇▇▇▇▇ Carell ▇▇▇▇▇▇▇ 2002 Marital Q-TIP Trust;
▇▇▇▇▇▇▇ Carell ▇▇▇▇▇ 2002 Charitable Remainder Unitrust; ▇▇▇▇▇ Carell ▇▇▇▇▇▇▇
2002 Charitable Remainder Unitrust; ▇▇▇▇▇ Carell ▇▇▇▇▇▇▇ 2002 Charitable
Remainder Unitrust and any other trust or entity which may be created in the
future for the benefit of the children or other family members of Monroe J.
Carell, Jr., or for charitable purposes.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Parent or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.
"Net Cash Proceeds" means the aggregate cash or Cash Equivalents
proceeds received by the Borrowers or any Subsidiary in respect of any
Disposition, Equity Issuance, Debt Issuance or Involuntary Disposition, net of
(a) direct costs incurred in connection therewith (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions), (b) taxes paid or payable as a result thereof and (c) in the case
of any Disposition, the amount to be applied to retire
18
any Indebtedness secured by a Permitted Lien (ranking senior to any Lien of the
Administrative Agent) on the related Property; it being understood that "Net
Cash Proceeds" shall include, without limitation, any cash or Cash Equivalents
received upon the sale or other disposition of any non-cash consideration
received by the Borrowers or any Subsidiary in any Disposition, Equity Issuance,
Debt Issuance or Involuntary Disposition.
"Note" or "Notes" means the Revolving Notes, the Swing Line Note, and/or
the Tranche B Term Notes, individually or collectively, as appropriate.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding. The foregoing
shall also include any Swap Contract of any Loan Party to which a Lender or any
Affiliate of such Lender is a party.
"Operating Lease" means, as applied to any Person, any lease (including,
without limitation, leases which may be terminated by the lessee at any time) of
any Property (whether real, personal or mixed) which is not a Capital Lease,
other than any such lease in which that Person is the lessor.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Outstanding Amount" means (i) with respect to any Loans on any date,
the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of any Loans occurring on such date;
and (ii) with respect to any L/C Obligations on any date, the amount of such L/C
Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Letters of Credit or any reductions in the
maximum amount available for drawing under Letters of Credit taking effect on
such date.
"Parent" means Central Parking Corporation, a Tennessee corporation.
"Participant" has the meaning specified in Section 11.07(e).
19
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Parent or any
ERISA Affiliate or to which the Parent or any ERISA Affiliate contributes or has
an obligation to contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at any time during
the immediately preceding five plan years.
"Permitted Acquisition" means an Acquisition by the Parent or any
Subsidiary of the Parent permitted pursuant to the terms of Section 8.02(i).
"Permitted Liens" means, at any time, Liens in respect of Property of
the Consolidated Parties permitted to exist at such time pursuant to the terms
of Section 8.01.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Parent or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Pledge Agreement" means the pledge agreement dated as of the Closing
Date executed in favor of the Administrative Agent by each of the Loan Parties,
as amended, modified, restated or supplemented from time to time.
"Preferred Stock" means the convertible preferred stock issued by the PS
Subsidiary in the form and subject to the terms set forth in Schedule 1.02.
"Pro Forma Basis" means, for purposes of calculating compliance with
each of the financial covenants set forth in Section 8.11 in respect of a
proposed transaction, that such transaction shall be deemed to have occurred as
of the first day of the four fiscal-quarter period ending as of the most recent
fiscal quarter end preceding the date of such transaction with respect to which
the Administrative Agent has received the Required Financial Information. As
used herein, "transaction" shall mean (a) any Disposition as referred to in
Section 8.05 or (b) any Acquisition as referred to in Section 8.02(i). In
connection with any calculation of the financial covenants set forth in Section
8.11 and giving effect to a transaction on a Pro Forma Basis:
(i) for purposes of any such calculation in respect of any
Disposition as referred to in Section 8.05, (A) income statement
items (whether positive or negative) and capital expenditures
attributable to the Person or Property disposed of shall be
excluded and (B) any Indebtedness which is retired in connection
with such transaction shall be excluded and deemed to have been
retired as of the first day of the applicable period; and
20
(ii) for purposes of any such calculation in respect of any
Acquisition as referred to in Section 8.02(i), (A) any
Indebtedness incurred or assumed by any Consolidated Party
(including the Person or Property acquired) in connection with
such transaction and any Indebtedness of the Person or Property
acquired which is not retired in connection with such
transaction (1) shall be deemed to have been incurred as of the
first day of the applicable period and (2) if such Indebtedness
has a floating or formula rate, shall have an implied rate of
interest for the applicable period for purposes of this
definition determined by utilizing the rate which is or would be
in effect with respect to such Indebtedness as at the relevant
date of determination, (B) income statement items (whether
positive or negative) and capital expenditures attributable to
the Person or Property acquired shall be included beginning as
of the first day of the applicable period and (C) pro forma
adjustments may be included to the extent that such adjustments
would give effect to events that are (1) directly attributable
to such transaction, (2) expected to have a continuing impact on
the Consolidated Parties and (3) factually supportable.
"Pro Forma Compliance Certificate" means a certificate of a Responsible
Officer of the Parent delivered to the Administrative Agent in connection with
(a) any Disposition as referred to in Section 8.05 or (b) any Acquisition as
referred to in Section 8.02(i), as applicable, and containing reasonably
detailed calculations, upon giving effect to the applicable transaction on a Pro
Forma Basis, of the Consolidated Leverage Ratio, the Consolidated Senior
Leverage Ratio, the Consolidated Fixed Charge Coverage Ratio and Consolidated
Net Worth as of the most recent fiscal quarter end preceding the date of the
applicable transaction with respect to which the Administrative Agent shall have
received the Required Financial Information.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Pro Rata Share" means as to each Lender (a) with respect to such
Lender's Revolving Commitment at any time, a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is
the amount of the Revolving Commitment of such Lender at such time and the
denominator of which is the amount of the Aggregate Revolving Commitments at
such time; provided that if the commitment of each Lender to make Revolving
Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have
been terminated pursuant to Section 9.02, then the Pro Rata Share of such Lender
shall be determined based on the Pro Rata Share of such Lender immediately prior
to such termination and after giving effect to any subsequent assignments made
pursuant to the terms hereof and (b) with respect to each Lender holding any of
the outstanding Tranche B Term Loan at any time, a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is
the principal amount of the Tranche B Term Loan held by such Lender at such time
and the denominator of which is the aggregate principal amount of the Tranche B
Term Loan at such time. The initial Pro Rata Share of each Lender is set forth
opposite the name of such Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable.
"PS Subsidiary" means the trust formed by the Parent to issue the
Preferred Stock.
21
"Real Properties" means, at any time, a collective reference to each of
the facilities and real properties owned, leased or operated by the Consolidated
Parties at such time.
"Register" has the meaning set forth in Section 11.07(c).
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Loans, a Loan Notice, (b) with respect to an L/C
Credit Extension, a Letter of Credit Application, and (c) with respect to a
Swing Line Loan, a Swing Line Loan Notice.
"Required Financial Information" means, with respect to each fiscal
period or quarter of the Parent, (a) the financial statements required to be
delivered pursuant to Section 7.01(a) or (b) for such fiscal period or quarter,
and (b) the certificate of a Responsible Officer of the Parent required by
Section 7.02(b) to be delivered with the financial statements described in
clause (a) above.
"Required Lenders" means, at any time, Lenders holding in the aggregate
more than fifty percent (50%) of (a) the Revolving Commitments and the
outstanding Tranche B Term Loans or (b) if the Revolving Commitments have been
terminated, the outstanding Loans, L/C Obligations, Swing Line Loans and
participations therein. The Revolving Commitments of, and the outstanding
Tranche B Term Loans held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president,
chief financial officer or treasurer of a Loan Party. Any document delivered
hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
such Loan Party.
"Restricted Payment" means (a) any dividend or other payment or
distribution, direct or indirect, on account of any shares of any class of
Capital Stock of any Consolidated Party, now or hereafter outstanding (including
without limitation any payment in connection with any dissolution, merger,
consolidation or disposition involving any Consolidated Party), or to the
holders, in their capacity as such, of any shares of any class of Capital Stock
of any Consolidated Party, now or hereafter outstanding, (b) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of Capital Stock of any
Consolidated Party, now or hereafter outstanding or (c) any payment made to
retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of Capital Stock of any Consolidated
Party, now or hereafter outstanding.
"Revolving Commitment" means, as to each Lender, its obligation to (a)
make Revolving Loans to the Borrowers pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one
22
time outstanding not to exceed the amount set forth opposite such Lender's name
on Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement.
"Revolving Lenders" means a collective reference to the Lenders holding
Revolving Loans or Revolving Commitments.
"Revolving Loan" has the meaning specified in Section 2.01(a).
"Revolving Loan Maturity Date" means February 28, 2008.
"Revolving Note" has the meaning specified in Section 2.11(a).
"Revolving Obligations" means Revolving Loans, L/C Obligations and Swing
Line Loans.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and any successor thereto.
"Sale and Leaseback Transaction" means any arrangement pursuant to which
any Consolidated Party, directly or indirectly, becomes liable as lessee,
guarantor or other surety with respect to any lease, whether an Operating Lease
or a Capital Lease, of any Property (a) which such Consolidated Party has sold
or transferred (or is to sell or transfer) to a Person which is not a
Consolidated Party or (b) which such Consolidated Party intends to use for
substantially the same purpose as any other Property which has been sold or
transferred (or is to be sold or transferred) by such Consolidated Party to
another Person which is not a Consolidated Party in connection with such lease.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Solvent" or "Solvency" means, with respect to any Person as of a
particular date, that on such date (a) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they mature
in the ordinary course of business, (b) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature in their ordinary course,
(c) such Person is not engaged in a business or a transaction, and is not about
to engage in a business or a transaction, for which such Person's Property would
constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged or is to
engage, (d) the fair value of the Property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (e) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in
23
light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
"Subordinated Indebtedness" means Indebtedness in the original amount of
$110,000,000 (net of any treasury shares outstanding) (the balance of which as
of the Closing Date is approximately $78,085,000) evidenced by the subordinated
notes dated March 18, 1998, issued by the Parent to the PS Subsidiary in
connection with the Preferred Stock or by virtue of the issuance of the
Preferred Stock.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of Capital Stock having ordinary voting power for the election of
directors or other members of its governing body (other than Capital Stock
having such power only by reason of the happening of a contingency) are at the
time beneficially owned, or the management of which is otherwise controlled,
directly, or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise specified, all references herein to a "Subsidiary" or
to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the Parent.
"Subsidiary Guarantors" means a collective reference to the Persons
identified as "Guarantors" on the signature pages hereto, and each other Person
that subsequently becomes a Subsidiary Guarantor by executing a Joinder
Agreement as contemplated by Section 7.12, and "Subsidiary Guarantor" means any
one of them.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more
24
mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.04.
"Swing Line Lender" means Bank of America in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Loan Notice" means a notice of a Borrowing of Swing Line
Loans pursuant to Section 2.04(b), which, if in writing, shall be substantially
in the form of Exhibit 2.04.
"Swing Line Note" has the meaning specified in Section 2.11(a).
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$25,000,000 and (b) the Aggregate Revolving Commitments. The Swing Line Sublimit
is part of, and not in addition to, the Aggregate Revolving Commitments.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Threshold Amount" means $5,000,000.
"Total Revolving Outstandings" means the aggregate Outstanding Amount of
all Revolving Loans, all Swing Line Loans and all L/C Obligations.
"Tranche B Term Loan Lenders" means a collective reference to the
Lenders holding Tranche B Term Loans or Tranche B Term Loan Commitments.
"Tranche B Term Loan" has the meaning specified in Section 2.01(b).
"Tranche B Term Loan Commitment" means, as to each Lender, its
obligation to make its portion of the Tranche B Term Loan to the Borrowers
pursuant to Section 2.01(b), in the principal amount set forth opposite such
Lender's name on Schedule 2.01. The aggregate principal amount of the Tranche B
Term Loan Commitments of all of the Lenders as in effect on the Closing Date is
ONE HUNDRED SEVENTY FIVE MILLION DOLLARS ($175,000,000).
"Tranche B Term Loan Maturity Date" means March 31, 2010.
"Tranche B Term Note" has the meaning specified in Section 2.11(a).
25
"Type" means, with respect to any Loan, its character as a Base Rate
Loan or a Eurodollar Rate Loan.
"UCC" means the Uniform Commercial Code in effect in the State of New
York.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning set forth in Section 2.03(c)(i).
"Voting Stock" means, with respect to any Person, Capital Stock issued
by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency.
"Wholly Owned Subsidiary" means any Person 100% of whose Capital Stock
is at the time owned by the Parent directly or indirectly through other Persons
100% of whose Capital Stock is at the time owned, directly or indirectly, by the
Parent.
1.02 OTHER INTERPRETIVE PROVISIONS.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and "hereunder"
and words of similar import when used in any Loan Document shall refer
to such Loan Document as a whole and not to any particular provision
thereof.
(ii) Article, Section, Exhibit and Schedule references are
to the Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all
instruments, documents, agreements, certificates, notices,
reports, financial statements and other writings, however
evidenced, whether in physical or electronic form.
26
(c) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS.
(a) Except as otherwise specifically prescribed herein, all accounting
terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement
shall be prepared in conformity with, GAAP applied on a consistent basis, as in
effect from time to time, applied in a manner consistent with that used in
preparing the Audited Financial Statements; provided, however, that calculations
of Attributable Indebtedness under any Synthetic Lease Obligations or the
implied interest component of any Synthetic Lease Obligations shall be made by
the Parent in accordance with accepted financial practice and consistent with
the terms of such Synthetic Lease Obligations.
(b) If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and either
the Parent or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Parent shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Parent shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
(c) Notwithstanding the above, the parties hereto acknowledge and agree
that for purposes of (i) calculating compliance with each of the financial
covenants set forth in Section 8.11 and (ii) the definition of "Applicable Rate"
set forth in Section 1.01, with respect to any Disposition as referred to in
Section 8.05 or any Acquisition as referred to in Section 8.02(i), the parties
shall utilize the principles set forth in the definition of "Pro Forma Basis"
set forth in Section 1.01.
1.04 ROUNDING.
Any financial ratios required to be maintained by the Borrowers pursuant
to this Agreement shall be calculated by dividing the appropriate component by
the other component, carrying the result to one place more than the number of
places by which such ratio is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number).
1.05 REFERENCES TO AGREEMENTS AND LAWS.
Unless otherwise expressly provided herein, (a) references to
Organization Documents, agreements (including the Loan Documents) and other
contractual instruments shall be deemed
27
to include all subsequent amendments, restatements, extensions, supplements and
other modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
1.06 TIMES OF DAY.
Unless otherwise specified, all references herein to times of day shall
be references to Eastern time (daylight or standard, as applicable).
1.07 LETTER OF CREDIT AMOUNTS.
Unless otherwise specified, all references herein to the amount of a
Letter of Credit at any time shall be deemed to mean the maximum face amount of
such Letter of Credit after giving effect to all increases thereof contemplated
by such Letter of Credit or the Letter of Credit Application therefor, whether
or not such maximum face amount is in effect at such time.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 REVOLVING LOANS AND TRANCHE B TERM LOANS.
(a) Revolving Loans. Subject to the terms and conditions set forth
herein, each Revolving Lender severally agrees to make loans (each such loan, a
"Revolving Loan") to the Parent (on behalf of one or more Borrowers) in Dollars
from time to time on any Business Day during the Availability Period in an
aggregate amount not to exceed at any time outstanding the amount of such
Lender's Revolving Commitment; provided, however, that after giving effect to
any Borrowing of Revolving Loans, (i) the Total Revolving Outstandings shall not
exceed the Aggregate Revolving Commitments and (ii) the aggregate Outstanding
Amount of the Revolving Loans of any Lender, plus such Lender's Pro Rata Share
of the Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata
Share of the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender's Revolving Commitment. Within the limits of each Lender's Revolving
Commitment, and subject to the other terms and conditions hereof, the Parent (on
behalf of one or more Borrowers) may borrow under this Section 2.01, prepay
Revolving Loans under Section 2.05, and reborrow under this Section 2.01.
Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein, provided, however, that all Borrowings of Revolving Loans made
on the Closing Date shall be made as Base Rate Loans.
(b) Tranche B Term Loan. Subject to the terms and conditions set forth
herein, each Tranche B Term Loan Lender severally agrees to make its portion of
a term loan (the "Tranche B Term Loan") to the Parent (on behalf of one or more
Borrowers) on the Closing Date in an amount not to exceed such Lender's Tranche
B Term Loan Commitment. Amounts repaid or prepaid on the Tranche B Term Loan may
not be reborrowed. The Tranche B Term Loan may
28
consist of Base Rate Loans or Eurodollar Rate Loans, as further provided herein,
provided, however, that the Borrowing of the Tranche B Term Loan made on the
Closing Date shall be made as Base Rate Loans.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS.
(a) Each Borrowing, each conversion of Loans from one Type to the other,
and each continuation of Eurodollar Rate Loans shall be made upon the Parent's
irrevocable notice to the Administrative Agent, which may be given by telephone.
Each such notice must be received by the Administrative Agent not later than
11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing
of, conversion to or continuation of Eurodollar Rate Loans or of any conversion
of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of
any Borrowing of Base Rate Loans. Each telephonic notice by the Parent pursuant
to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Loan Notice, appropriately completed and
signed by a Responsible Officer of the Parent. Each Borrowing of, conversion to
or continuation of Eurodollar Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof. Except as provided
in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate
Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000
in excess thereof. Each Loan Notice (whether telephonic or written) shall
specify (i) whether the Parent (on behalf of the Borrowers) is requesting a
Borrowing, a conversion of Loans from one Type to the other, or a continuation
of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion
or continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Loans to be borrowed, converted or continued, (iv) the Type
of Loans to be borrowed or to which existing Loans are to be converted, and (v)
if applicable, the duration of the Interest Period with respect thereto. If the
Parent (on behalf of the Borrowers) fails to specify a Type of Loan in a Loan
Notice or if the Parent (on behalf of the Borrowers) fails to give a timely
notice requesting a conversion or continuation, then the applicable Loans shall
be made as, or converted to, Base Rate Loans. Any such automatic conversion to
Base Rate Loans shall be effective as of the last day of the Interest Period
then in effect with respect to the applicable Eurodollar Rate Loans. If the
Parent (on behalf of the Borrowers) requests a Borrowing of, conversion to, or
continuation of Eurodollar Rate Loans in any such Loan Notice, but fails to
specify an Interest Period, it will be deemed to have specified an Interest
Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Pro Rata Share of the
applicable Loans, and if no timely notice of a conversion or continuation is
provided by the Parent (on behalf of the Borrowers), the Administrative Agent
shall notify each Lender of the details of any automatic conversion to Base Rate
Loans described in the preceding subsection. In the case of a Borrowing, each
applicable Lender shall make the amount of its Loan available to the
Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m. on the Business Day specified in the
applicable Loan Notice. Upon satisfaction of the applicable conditions set forth
in Section 5.02 (and, if such Borrowing is the initial Credit Extension, Section
5.01), the Administrative Agent shall make all funds so received available to
the Parent (on behalf of the Borrowers) in like funds as received by the
Administrative Agent either by (i) crediting the account of the Parent on the
books of the Administrative Agent with the amount of such funds or
29
(ii) wire transfer of such funds, in each case in accordance with instructions
provided to (and reasonably acceptable to) the Administrative Agent by the
Parent (on behalf of the Borrowers); provided, however, that if, on the date a
Borrowing of Revolving Loans, there are Swing Line Loans or L/C Borrowings
outstanding, then the proceeds of such Borrowing shall be applied, first, to the
payment in full of any such L/C Borrowings, second, to the payment in full of
any such Swing Line Loans, and third, to the Parent (on behalf of the Borrowers)
as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of the Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Parent and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate. The determination of the
Eurodollar Rate by the Administrative Agent shall be conclusive in the absence
of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Parent and the Lenders of any change in
Bank of America's prime rate used in determining the Base Rate promptly
following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type, there
shall not be more than (i) eight (8) Interest Periods in effect with respect to
Revolving Loans and (ii) eight (8) Interest Periods in effect with respect to
the Tranche B Term Loan.
2.03 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the
L/C Issuer agrees, in reliance upon the agreements of the other
Revolving Lenders set forth in this Section 2.03, (1) from time to time
on any Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date, to issue Letters of Credit in Dollars
for the account of a Borrower or any Subsidiary, and to amend or renew
Letters of Credit previously issued by it, in accordance with subsection
(b) below, and (2) to honor drafts under the Letters of Credit; and (B)
the Revolving Lenders severally agree to participate in Letters of
Credit issued for the account of a Borrower or any Subsidiary; provided
that the L/C Issuer shall not be obligated to make any L/C Credit
Extension with respect to any Letter of Credit, and no Revolving Lender
shall be obligated to participate in any Letter of Credit if as of the
date of and after giving effect to such L/C Credit Extension, (x) the
Total Revolving Outstandings would exceed the Aggregate Revolving
Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans
of any Lender, plus such Lender's Pro Rata Share of the Outstanding
Amount of all L/C Obligations, plus such Lender's Pro Rata Share of the
Outstanding Amount of all Swing Line Loans would exceed such Lender's
Revolving Commitment or (z) the Outstanding Amount of the L/C
Obligations would exceed the Letter of Credit Sublimit. Within the
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foregoing limits, and subject to the terms and conditions hereof, a
Consolidated Party's ability to obtain Letters of Credit shall be fully
revolving, and accordingly a Borrower or any Subsidiary may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit
that have expired or that have been drawn upon and reimbursed. All
Existing Letters of Credit shall be deemed to have been issued pursuant
hereto, and from and after the Closing Date shall be subject to and
governed by the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the L/C Issuer from issuing such Letter of Credit, or
any Law applicable to the L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over the L/C Issuer shall prohibit,
or request that the L/C Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in
particular or shall impose upon the L/C Issuer with respect to
such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or
shall impose upon the L/C Issuer any unreimbursed loss, cost or
expense which was not applicable on the Closing Date and which
the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) subject to Section 2.03(b)(iii), the expiry date of
such requested Letter of Credit would occur more than twelve
months after the date of issuance or last renewal, unless the
Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit
would occur after the Letter of Credit Expiration Date, unless
all the Lenders have approved such expiry date; or
(D) such Letter of Credit is in an initial amount less
than $100,000 or is to be denominated in a currency other than
Dollars.
(iii) The L/C Issuer shall not amend any Letter of Credit if (A)
the L/C Issuer would have no obligation at such time to issue such
Letter of Credit in its amended form under the terms hereof, or (B) the
beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(iv) The L/C Issuer shall not issue or amend any Letter of Credit
if the L/C Issuer has received written notice from any Revolving Lender,
the Administrative Agent or any Loan Party, on or prior to the Business
Day prior to the requested date of issuance or amendment of such Letter
of Credit, that one or more applicable conditions contained in Article V
shall not then be satisfied.
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(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of the Parent (on behalf of the Borrowers)
delivered to the L/C Issuer (with a copy to the Administrative Agent) in
the form of a Letter of Credit Application, appropriately completed and
signed by a Responsible Officer of the Parent. Such Letter of Credit
Application must be received by the L/C Issuer and the Administrative
Agent not later than 11:00 a.m. at least two Business Days (or such
later date and time as the L/C Issuer may agree in a particular instance
in its sole discretion) prior to the proposed issuance date or date of
amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer: (A) the
proposed issuance date of the requested Letter of Credit (which shall be
a Business Day); (B) the amount thereof; (C) the expiry date thereof;
(D) the name and address of the beneficiary thereof; (E) the documents
to be presented by such beneficiary in case of any drawing thereunder;
(F) the full text of any certificate to be presented by such beneficiary
in case of any drawing thereunder; and (G) such other matters as the L/C
Issuer may reasonably require. In the case of a request for an amendment
of any outstanding Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the L/C Issuer (A) the
Letter of Credit to be amended; (B) the proposed date of amendment
thereof (which shall be a Business Day); (C) the nature of the proposed
amendment; and (D) such other matters as the L/C Issuer may reasonably
require.
(ii) Promptly after receipt of any Letter of Credit Application,
the L/C Issuer will confirm with the Administrative Agent (by telephone
or in writing) that the Administrative Agent has received a copy of such
Letter of Credit Application from the Parent (on behalf of the
Borrowers) and, if not, the L/C Issuer will provide the Administrative
Agent with a copy thereof. Upon receipt by the L/C Issuer of
confirmation from the Administrative Agent that the requested issuance
or amendment is permitted in accordance with the terms hereof, then,
subject to the terms and conditions hereof, the L/C Issuer shall, on the
requested date, issue a Letter of Credit for the account of the
Borrowers or enter into the applicable amendment, as the case may be, in
each case in accordance with the L/C Issuer's usual and customary
business practices. Immediately upon the issuance of each Letter of
Credit, each Revolving Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product
of such Revolving Lender's Pro Rata Share times the amount of such
Letter of Credit.
(iii) If the Parent (on behalf of the Borrowers) so requests in
any applicable Letter of Credit Application, the L/C Issuer may, in its
sole and absolute discretion, agree to issue a Letter of Credit that has
automatic renewal provisions (each, an "Auto-Renewal Letter of Credit");
provided that any such Auto-Renewal Letter of Credit must permit the L/C
Issuer to prevent any such renewal at least once in each twelve-month
period (commencing with the date of issuance of such Letter of Credit)
by giving prior notice to
32
the beneficiary thereof not later than a day (the "Nonrenewal Notice
Date") in each such twelve-month period to be agreed upon at the time
such Letter of Credit is issued. Unless otherwise directed by the L/C
Issuer, the Parent shall not be required to make a specific request to
the L/C Issuer for any such renewal. Once an Auto-Renewal Letter of
Credit has been issued, the Revolving Lenders shall be deemed to have
authorized (but may not require) the L/C Issuer to permit the renewal of
such Letter of Credit at any time to an expiry date not later than the
Letter of Credit Expiration Date; provided, however, that the L/C Issuer
shall not permit any such renewal if (A) the L/C Issuer has determined
that it would have no obligation at such time to issue such Letter of
Credit in its renewed form under the terms hereof (by reason of the
provisions of Section 2.03(a)(ii) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day
that is two Business Days before the Nonrenewal Notice Date from the
Administrative Agent, any Revolving Lender, the Parent or any Borrower
that one or more of the applicable conditions specified in Section 5.02
is not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto
or to the beneficiary thereof, the L/C Issuer will also deliver to the
Parent and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of
any notice of drawing under such Letter of Credit, the L/C Issuer shall
notify the Parent and the Administrative Agent thereof. Not later than
11:00 a.m. on the date of any payment by the L/C Issuer under a Letter
of Credit (each such date, an "Honor Date"), the Parent (on behalf of
the Borrowers) shall reimburse the L/C Issuer through the Administrative
Agent in an amount equal to the amount of such drawing. If the Parent
(on behalf of the Borrowers) fails to so reimburse the L/C Issuer by
such time, the Administrative Agent shall promptly notify each Revolving
Lender of the Honor Date, the amount of the unreimbursed drawing (the
"Unreimbursed Amount"), and the amount of such Revolving Lender's Pro
Rata Share thereof. In such event, the Parent (on behalf of the
Borrowers) shall be deemed to have requested a Borrowing of Base Rate
Revolving Loans to be disbursed on the Honor Date in an amount equal to
the Unreimbursed Amount, without regard to the minimum and multiples
specified in Section 2.02 for the principal amount of Base Rate Loans,
but subject to the amount of the unutilized portion of the Aggregate
Revolving Commitments and the conditions set forth in Section 5.02
(other than the delivery of a Loan Notice). Any notice given by the L/C
Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i)
may be given by telephone if immediately confirmed in writing; provided
that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(ii) Each Revolving Lender (including the Revolving Lender acting
as L/C Issuer) shall upon any notice pursuant to Section 2.03(c)(i) make
funds available to the Administrative Agent for the account of the L/C
Issuer at the Administrative Agent's Office in an amount equal to its
Pro Rata Share of the Unreimbursed Amount not later
33
than 1:00 p.m. on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section
2.03(c)(iii), each Revolving Lender that so makes funds available shall
be deemed to have made a Base Rate Revolving Loan to the Parent (on
behalf of the Borrowers) in such amount. The Administrative Agent shall
remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Borrowing of Base Rate Revolving Loans because the
conditions set forth in Section 5.02 cannot be satisfied or for any
other reason, the Parent (on behalf of the Borrowers) shall be deemed to
have incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall
be due and payable on demand (together with interest) and shall bear
interest at the Default Rate. In such event, each Revolving Lender's
payment to the Administrative Agent for the account of the L/C Issuer
pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of
its participation in such L/C Borrowing and shall constitute an L/C
Advance from such Revolving Lender in satisfaction of its participation
obligation under this Section 2.03.
(iv) Until each Revolving Lender funds its Revolving Loan or L/C
Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for
any amount drawn under any Letter of Credit, interest in respect of such
Revolving Lender's Pro Rata Share of such amount shall be solely for the
account of the L/C Issuer.
(v) Each Revolving Lender's obligation to make Revolving Loans or
L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters
of Credit, as contemplated by this Section 2.03(c), shall be absolute
and unconditional and shall not be affected by any circumstance,
including (A) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against the L/C Issuer, the Parent, the
other Borrowers or any other Person for any reason whatsoever; (B) the
occurrence or continuance of a Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing;
provided, however, that each Revolving Lender's obligation to make
Revolving Loans pursuant to this Section 2.03(c) is subject to the
conditions set forth in Section 5.02 (other than delivery by the Parent
of a Loan Notice). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the Borrowers to reimburse the L/C
Issuer for the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.
(vi) If any Revolving Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing provisions
of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),
the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the L/C Issuer at
a rate per annum equal to the Federal Funds Rate from time to time in
effect. A certificate of the L/C Issuer submitted to any
34
Revolving Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (vi) shall be conclusive absent manifest
error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Revolving Lender such
Lender's L/C Advance in respect of such payment in accordance with
Section 2.03(c), if the Administrative Agent receives for the account of
the L/C Issuer any payment in respect of the related Unreimbursed Amount
or interest thereon (whether directly from the Parent, the other
Borrowers or otherwise, including proceeds of Cash Collateral applied
thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Pro Rata Share thereof (appropriately
adjusted, in the case of interest payments, to reflect the period of
time during which such Lender's L/C Advance was outstanding) in the same
funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to
be returned under any of the circumstances described in Section 11.06
(including pursuant to any settlement entered into by the L/C Issuer in
its discretion), each Revolving Lender shall pay to the Administrative
Agent for the account of the L/C Issuer its Pro Rata Share thereof on
demand of the Administrative Agent, plus interest thereon from the date
of such demand to the date such amount is returned by such Lender, at a
rate per annum equal to the Federal Funds Rate from time to time in
effect.
(e) Obligations Absolute. The obligations of the Borrowers to reimburse
the L/C Issuer for each drawing under each Letter of Credit and to repay each
L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, any other Loan Document or any other agreement
or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense
or other right that the Borrowers may have at any time against any
beneficiary or any transferee of such Letter of Credit (or any Person
for whom any such beneficiary or any such transferee may be acting), the
L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of
Credit or any agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
35
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by
the L/C Issuer under such Letter of Credit to any Person purporting to
be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor
Relief Law; or
(v) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge
of, the Borrowers.
The Parent (on behalf of the Borrowers) shall promptly examine a copy of
each Letter of Credit and each amendment thereto that is delivered to it and, in
the event of any claim of noncompliance with the Parent's instructions or other
irregularity, the Parent will immediately notify the L/C Issuer. The Borrowers
shall be conclusively deemed to have waived any such claim against the L/C
Issuer and its correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Revolving Lender and each Borrower agree
that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not
have any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the
L/C Issuer, any Agent-Related Person nor any of the correspondents, participants
or assignees of the L/C Issuer shall be liable to any Revolving Lender for (i)
any action taken or omitted in connection herewith at the request or with the
approval of the Lenders or the Required Lenders, as applicable; (ii) any action
taken or omitted in the absence of gross negligence or willful misconduct; or
(iii) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Letter of Credit
Application. The Borrowers hereby assume all risks of the acts or omissions of
any beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not,
preclude a Borrower's pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under any other agreement. None of the
L/C Issuer, any Agent-Related Person, nor any of the respective correspondents,
participants or assignees of the L/C Issuer, shall be liable or responsible for
any of the matters described in clauses (i) through (v) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrowers may have a claim against the L/C Issuer, and the
L/C Issuer may be liable to the Borrowers, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrowers which the Borrowers prove were caused by the L/C
Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the
36
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent or the
Required Lenders, (i) if the L/C Issuer has honored any full or partial drawing
request under any Letter of Credit and such drawing has resulted in an L/C
Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any Letter of
Credit may for any reason remain outstanding and partially or wholly undrawn,
the Parent (on behalf of the Borrowers) shall immediately Cash Collateralize the
then Outstanding Amount of all L/C Obligations (in an amount equal to such
Outstanding Amount determined as of the date of such L/C Borrowing or the Letter
of Credit Expiration Date, as the case may be). For purposes hereof, "Cash
Collateralize" means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuer and the Revolving Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Administrative Agent and
the L/C Issuer (which documents are hereby consented to by the Revolving
Lenders). Derivatives of such term have corresponding meanings. Each Borrower
hereby grants to the Administrative Agent, for the benefit of the L/C Issuer and
the Revolving Lenders, a security interest in all such cash, deposit accounts
and all balances therein and all proceeds of the foregoing. Cash collateral
shall be maintained in blocked, non-interest bearing deposit accounts with the
Administrative Agent.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by
the L/C Issuer and the Parent (on behalf of the Borrowers) when a Letter of
Credit is issued (including any such agreement applicable to an Existing Letter
of Credit), (i) the rules of the "International Standby Practices 1998"
published by the Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of issuance) shall apply
to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and
Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce (the "ICC") at the time of issuance (including
the ICC decision published by the Commission on Banking Technique and Practice
on April 6, 1998 regarding the European single currency (euro)) shall apply to
each commercial Letter of Credit.
(i) Letter of Credit Fees. The Borrowers shall pay to the Administrative
Agent for the account of each Revolving Lender in accordance with its Pro Rata
Share (i) a Letter of Credit fee for each commercial Letter of Credit equal to
the Applicable Rate times the daily maximum amount available to be drawn under
such Letter of Credit (whether or not such maximum amount is then in effect
under such Letter of Credit) and (ii) a Letter of Credit fee for each standby
Letter of Credit equal to the Applicable Rate times the daily maximum amount
available to be drawn under such Letter of Credit (whether or not such maximum
amount is then in effect under such Letter of Credit). Such letter of credit
fees shall be computed on a quarterly basis in arrears. Such letter of credit
fees shall be due and payable on the first Business Day after the end of each
March, June, September and December, commencing with the first such date to
occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand. If there is any change in the
Applicable Rate during any quarter, the daily maximum
37
amount of each Letter of Credit shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrowers shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit in an amount equal to the
amount specified in the Fee Letter on the daily maximum amount available to be
drawn thereunder, due and payable quarterly in arrears on the Business Day
immediately following the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such Letter of Credit, and on the Letter of Credit Expiration Date. In addition,
the Borrowers shall pay directly to the L/C Issuer for its own account the
customary issuance, presentation, amendment and other processing fees, and other
standard costs and charges, of the L/C Issuer relating to letters of credit as
from time to time in effect. Such customary fees and standard costs and charges
are due and payable on demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.04 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees to make loans (each such loan, a "Swing
Line Loan") to Parent (on behalf of the Borrowers) in Dollars from time to time
on any Business Day during the Availability Period in an aggregate amount not to
exceed at any time outstanding the amount of the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans, when aggregated with the
Pro Rata Share of the Outstanding Amount of Revolving Loans and L/C Obligations
of the Swing Line Lender in its capacity as a Lender of Revolving Loans, may
exceed the amount of such Lender's Revolving Commitment; provided, however, that
after giving effect to any Swing Line Loan, (i) the Total Revolving Outstandings
shall not exceed the Aggregate Revolving Commitments, and (ii) the aggregate
Outstanding Amount of the Revolving Loans of any Lender, plus such Lender's Pro
Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender's
Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not
exceed such Lender's Revolving Commitment. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Borrowers may borrow under
this Section 2.04, prepay under Section 2.05, and reborrow under this Section
2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the
making of a Swing Line Loan, each Revolving Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Swing Line
Lender a risk participation in such Swing Line Loan in an amount equal to the
product of such Revolving Lender's Pro Rata Share times the amount of such Swing
Line Loan.
(b) Borrowing Procedures. Each Borrowing of Swing Line Loans shall be
made upon the Parent's (on behalf of the Borrowers) irrevocable notice to the
Swing Line Lender and the Administrative Agent, which may be given by telephone.
Each such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the requested borrowing date,
and shall specify (i) the amount to be borrowed, which shall be a minimum of
$100,000 and (ii) the requested borrowing date, which shall be a Business Day.
Each such
38
telephonic notice must be confirmed promptly by delivery to the Swing Line
Lender and the Administrative Agent of a written Swing Line Loan Notice,
appropriately completed and signed by a Responsible Officer of the Parent.
Promptly after receipt by the Swing Line Lender of any telephonic Swing Line
Loan Notice, the Swing Line Lender will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of the contents thereof.
Unless the Swing Line Lender has received notice (by telephone or in writing)
from the Administrative Agent (including at the request of any Revolving Lender)
prior to 2:00 p.m. on the date of the proposed Borrowing of Swing Line Loans (A)
directing the Swing Line Lender not to make such Swing Line Loan as a result of
the limitations set forth in the proviso to the first sentence of Section
2.04(a), or (B) that one or more of the applicable conditions specified in
Article V is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing
date specified in such Swing Line Loan Notice, make the amount of its Swing Line
Loan available to the Parent (on behalf of the Borrowers).
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrowers (which hereby
irrevocably request and authorize the Swing Line Lender to so request on
its behalf), that each Revolving Lender make a Base Rate Revolving Loan
in an amount equal to such Lender's Pro Rata Share of the amount of
Swing Line Loans then outstanding. Such request shall be made in writing
(which written request shall be deemed to be a Loan Notice for purposes
hereof) and in accordance with the requirements of Section 2.02, without
regard to the minimum and multiples specified therein for the principal
amount of Base Rate Revolving Loans, but subject to the unutilized
portion of the Aggregate Revolving Commitments and the conditions set
forth in Section 5.02. The Swing Line Lender shall furnish the Parent
(on behalf of the Borrowers) with a copy of the applicable Loan Notice
promptly after delivering such notice to the Administrative Agent. Each
Revolving Lender shall make an amount equal to its Pro Rata Share of the
amount specified in such Loan Notice available to the Administrative
Agent in immediately available funds for the account of the Swing Line
Lender at the Administrative Agent's Office not later than 1:00 p.m. on
the day specified in such Loan Notice, whereupon, subject to Section
2.04(c)(ii), each Revolving Lender that so makes funds available shall
be deemed to have made a Base Rate Revolving Loan to the Borrowers in
such amount. The Administrative Agent shall remit the funds so received
to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced
by such a Borrowing of Revolving Loans in accordance with Section
2.04(c)(i), the request for Base Rate Revolving Loans submitted by the
Swing Line Lender as set forth herein shall be deemed to be a request by
the Swing Line Lender that each of the Revolving Lenders fund its risk
participation in the relevant Swing Line Loan and each Revolving
Lender's payment to the Administrative Agent for the account of the
Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment
in respect of such participation.
39
(iii) If any Revolving Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any amount
required to be paid by such Lender pursuant to the foregoing provisions
of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the
Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the Swing Line
Lender at a rate per annum equal to the Federal Funds Rate from time to
time in effect. A certificate of the Swing Line Lender submitted to any
Revolving Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (iii) shall be conclusive absent
manifest error.
(iv) Each Revolving Lender's obligation to make Revolving Loans
or to purchase and fund risk participations in Swing Line Loans pursuant
to this Section 2.04(c) shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right that such Lender may
have against the Swing Line Lender, the Borrowers or any other Person
for any reason whatsoever, (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each Revolving
Lender's obligation to make Revolving Loans pursuant to this Section
2.04(c) is subject to the conditions set forth in Section 5.02 (other
than delivery by the Parent (on behalf of the Borrowers) of a Loan
Notice). No such purchase or funding of risk participations shall
relieve or otherwise impair the obligation of the Borrowers to repay
Swing Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Revolving Lender has purchased and
funded a risk participation in a Swing Line Loan, if the Swing Line
Lender receives any payment on account of such Swing Line Loan, the
Swing Line Lender will distribute to such Lender its Pro Rata Share of
such payment (appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Lender's risk
participation was funded) in the same funds as those received by the
Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect
of principal or interest on any Swing Line Loan is required to be
returned by the Swing Line Lender under any of the circumstances
described in Section 11.06 (including pursuant to any settlement entered
into by the Swing Line Lender in its discretion), each Revolving Lender
shall pay to the Swing Line Lender its Pro Rata Share thereof on demand
of the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned, at a rate per annum equal to
the Federal Funds Rate. The Administrative Agent will make such demand
upon the request of the Swing Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender
shall be responsible for invoicing the Parent (on behalf of the Borrowers) for
interest on the Swing Line Loans. Until each Revolving Lender funds its
Revolving Loans or risk participation pursuant to
40
this Section 2.04 to refinance such Lender's Pro Rata Share of any Swing Line
Loan, interest in respect of such Pro Rata Share shall be solely for the account
of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrowers shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
2.05 PREPAYMENTS.
(a) Voluntary Prepayments of Loans.
(i) Revolving Loans and Term Loans. The Borrowers may, upon
notice from the Parent (on behalf of the Borrowers) to the
Administrative Agent, at any time or from time to time voluntarily
prepay Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Administrative Agent not
later than 11:00 a.m. (A) three Business Days prior to any date of
prepayment of Eurodollar Rate Loans, and (B) on the date of prepayment
of Base Rate Loans; (ii) any such prepayment of Eurodollar Rate Loans
shall be in a principal amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof (or, if less, the entire principal amount
thereof then outstanding); (iii) any such prepayment of Base Rate Loans
shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof (or, if less, the entire principal amount
thereof then outstanding) and (iv) any such prepayment of the Tranche B
Term Loan shall be applied to the Tranche B Term Loan until paid in full
(in each case to the remaining principal amortization payments in
inverse order of maturity). Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Loans to be prepaid. The
Administrative Agent will promptly notify each Lender of its receipt of
each such notice, and of the amount of such Lender's Pro Rata Share of
such prepayment. If such notice is given by the Parent, the Parent (on
behalf of the Borrowers) shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date
specified therein. Any prepayment of a Eurodollar Rate Loan shall be
accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 3.05. Each such
prepayment shall be applied to the Loans of the Lenders in accordance
with their respective Pro Rata Shares.
(ii) Swing Line Loans. The Borrowers may, upon notice from the
Parent (on behalf of the Borrowers) to the Swing Line Lender (with a
copy to the Administrative Agent), at any time or from time to time,
voluntarily prepay Swing Line Loans in whole or in part without premium
or penalty; provided that (i) such notice must be received by the Swing
Line Lender and the Administrative Agent not later than 1:00 p.m. on the
date of the prepayment, and (ii) any such prepayment shall be in a
minimum principal amount of $100,000 (or, if less, the aggregate amount
of Swing Line Loans then outstanding). Each such notice shall specify
the date and amount of such prepayment. If such notice is given by the
Parent, the Parent (on behalf of the Borrowers) shall make such
prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein.
41
(b) Mandatory Prepayments of Loans.
(i) Aggregate Revolving Commitments. If for any reason the Total
Revolving Outstandings at any time exceed the Aggregate Revolving
Commitments then in effect, the Borrowers shall immediately prepay
Revolving Loans and/or the Swing Line Loans and/or Cash Collateralize
the L/C Obligations in an aggregate amount equal to such excess;
provided, however, that the Borrowers shall not be required to Cash
Collateralize the L/C Obligations pursuant to this Section 2.05(b)
unless after the prepayment in full of the Revolving Loans and Swing
Line Loans the Total Revolving Outstandings exceed the Aggregate
Revolving Commitments then in effect.
(ii) Excess Cash Flow. Within 90 days after the end of each
fiscal year of the Parent (commencing with the fiscal year ending
September 30, 2003), the Borrowers shall prepay the Loans in an amount
equal to the sum of (A) 75% (if the Consolidated Leverage Ratio as of
the end of such fiscal year is equal to or greater than 2.75 to 1.0) or
50% (if the Consolidated Leverage Ratio as of the end of such fiscal
year is less than 2.75 to 1.0 but equal to or greater than 2.00 to 1.00)
or 0% (if the Consolidated Leverage Ratio as of the end of such fiscal
year is less than 2.00 to 1.0) of Excess Cash Flow for such prior fiscal
year minus (B) the amount of any voluntary prepayments made during such
fiscal year of the Tranche B Term Loan or (to the extent accompanied by
a reduction in the Aggregate Revolving Commitments) the Revolving Loans
(such prepayment to be applied as set forth in clause (vi) below).
(iii) Dispositions and Involuntary Dispositions. The Borrowers
shall prepay the Loans and Cash Collateralize the L/C Obligations as
hereafter provided in an aggregate amount equal to 100% of the Net Cash
Proceeds of all Dispositions and Involuntary Dispositions to the extent
(A) such Net Cash Proceeds are not reinvested in Property useful in the
Businesses within 180 days of the date of such Disposition and (B) the
aggregate amount of such Net Cash Proceeds not reinvested in accordance
with the foregoing clause (A) shall exceed $2,500,000 in any fiscal
year. Such prepayment shall be due immediately upon the expiration of
the 180 day period set forth in clause (A) (to the extent such
prepayment exceeds the threshold in clause (B)) and shall be applied as
set forth in clause (vi) below).
(iv) Debt Issuances. Immediately upon receipt by the Borrowers or
any Subsidiary of the Net Cash Proceeds of any Debt Issuance, the
Borrowers shall prepay the Loans and Cash Collateralize the L/C
Obligations as hereafter provided in an aggregate amount equal to 100%
of such Net Cash Proceeds (such prepayment to be applied as set forth in
clause (vi) below).
(v) Equity Issuances. Immediately upon the receipt by the
Borrowers or any Subsidiary of the Net Cash Proceeds of any Equity
Issuance, the Borrowers shall prepay the Loans and Cash Collateralize
the L/C Obligations in an aggregate amount equal to 50% of such Net Cash
Proceeds (such prepayment to be applied as set forth in clause (vi)
below).
42
(vi) Application of Mandatory Prepayments. All amounts required
to be paid pursuant to this Section 2.05(b) shall be applied as follows:
(A) with respect to all amounts prepaid pursuant to
Section 2.05(b)(i), to Revolving Loans and Swing Line Loans and
(after all Revolving Loans and all Swing Line Loans have been
repaid) to Cash Collateralize L/C Obligations; and
(B) with respect to all amounts prepaid pursuant to
Section 2.05(b)(ii), (iii), (iv) and (v), pro rata to the Tranche
B Term Loan (to the remaining principal amortization payments in
inverse order of maturity) and to the Revolving Loans and Swing
Line Loans (with no corresponding reduction in the Aggregate
Revolving Commitments; provided, however, that if the Aggregate
Revolving Commitments are greater than $150,000,000 at the time
of such prepayment, amounts prepaid pursuant to Section
2.05(b)(ii), shall reduce the Aggregate Revolving Commitments to
the extent of such excess) and then (after all Tranche B Term
Loans, Revolving Loans and all Swing Line Loans have been repaid)
to Cash Collateralize L/C Obligations (but without any reduction
in the Aggregate Revolving Commitments).
Within the parameters of the applications set forth above,
prepayments shall be applied first to Base Rate Loans and then to
Eurodollar Rate Loans in direct order of Interest Period
maturities. All prepayments under this Section 2.05(b) shall be
subject to Section 3.05, but otherwise without premium or
penalty, and shall be accompanied by interest on the principal
amount prepaid through the date of prepayment.
2.06 TERMINATION OR REDUCTION OF AGGREGATE REVOLVING COMMITMENTS.
The Parent (on behalf of the Borrowers) may, upon notice from the Parent
to the Administrative Agent, terminate the Aggregate Revolving Commitments or
permanently reduce the Aggregate Revolving Commitments to an amount not less
than the Outstanding Amount of Revolving Loans, Swing Line Loans and L/C
Obligations; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the
date of termination or reduction and (ii) any such partial reduction shall be in
an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess
thereof (or, if less, the amount of the Aggregate Revolving Commitments then in
effect). The Administrative Agent will promptly notify the Lenders of any such
notice of termination or reduction of the Aggregate Revolving Commitments. Any
reduction of the Aggregate Revolving Commitments shall be applied to the
Revolving Commitment of each Revolving Lender according to its Pro Rata Share.
All commitment fees accrued until the effective date of any termination of the
Aggregate Revolving Commitments shall be paid on the effective date of such
termination.
2.07 REPAYMENT OF LOANS.
(a) Revolving Loans. The Borrowers shall repay to the Lenders on the
Revolving Loan Maturity Date the aggregate principal amount of all Revolving
Loans outstanding on such date.
43
(b) Swing Line Loans. The Borrower shall repay each Swing Line Loan on
the earlier to occur of (i) the demand of the Swing Line Lender and (ii) three
(3) Business Days prior to the Revolving Loan Maturity Date.
(c) Tranche B Term Loan. The Borrowers shall repay the outstanding
principal amount of the Tranche B Term Loan in installments on the dates and in
the amounts set forth in the table below (as such installments may hereafter be
adjusted as a result of prepayments made pursuant to Section 2.05), unless
accelerated sooner pursuant to Section 9.02:
Principal Amortization
Payment Dates Payment
------------------------ ----------------------
June 30, 2003 $ 437,500
September 30, 2003 $ 437,500
December 31, 2003 $ 437,500
March 31, 2004 $ 437,500
June 30, 2004 $ 437,500
September 30, 2004 $ 437,500
December 31, 2004 $ 437,500
March 31, 2005 $ 437,500
June 30, 2005 $ 437,500
September 30, 2005 $ 437,500
December 31, 2005 $ 437,500
March 31, 2006 $ 437,500
June 30, 2006 $ 437,500
September 30, 2006 $ 437,500
December 31, 2006 $ 437,500
March 31, 2007 $ 437,500
June 30, 2007 $ 437,500
September 30, 2007 $ 437,500
December 31, 2007 $ 437,500
March 31, 2008 $ 437,500
June 30, 2008 $20,781,250
September 30, 2008 $20,781,250
December 31, 2008 $20,781,250
March 31, 2009 $20,781,250
June 30, 2009 $20,781,250
September 30, 2009 $20,781,250
December 31, 2009 $20,781,250
March 31, 2010 $20,781,250
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2.08 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Revolving Eurodollar Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum
equal to the sum of (A) the Eurodollar Rate for such Interest Period
plus (B) the Applicable Rate; (ii) each Revolving Base Rate Loan shall
bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate
plus the Applicable Rate; (iii) each Swing Line Loan shall bear interest
on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate, (iv) each
portion of the Tranche B Term Loan consisting of a Eurodollar Rate Loan
shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the sum of (A) the
Eurodollar Rate for such Interest Period plus 3.25%; and (v) each
portion of the Tranche B Term Loan consisting of a Base Rate Loan shall
bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate
plus 1.75%.
(b) If any amount payable by the Borrowers under any Loan
Document is not paid when due (without regard to any applicable grace
periods), whether at stated maturity, by acceleration or otherwise, such
amount shall thereafter bear interest at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws. Furthermore, upon the request of the
Required Lenders, while any Event of Default exists, the Borrower shall
pay interest on the principal amount of all outstanding Obligations
hereunder at a fluctuating interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by applicable Laws.
Accrued and unpaid interest on past due amounts (including interest on
past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on
each Interest Payment Date applicable thereto and at such other times as
may be specified herein. Interest hereunder shall be due and payable in
accordance with the terms hereof before and after judgment, and before
and after the commencement of any proceeding under any Debtor Relief
Law.
2.09 FEES.
In addition to certain fees described in subsections (i) and (j) of
Section 2.03:
(a) Commitment Fee. The Borrowers shall pay to the Administrative
Agent for the account of each Revolving Lender in accordance with its
Pro Rata Share, a commitment fee equal to the product of (i) the
Applicable Rate times (ii) the actual daily amount by which the
Aggregate Revolving Commitments exceed the sum of (y) the Outstanding
Amount of Revolving Loans and (z) the Outstanding Amount of L/C
Obligations. The commitment fee shall accrue at all times during the
Availability Period, including at any time during which one or more of
the conditions in Article V is not met, and shall be due and payable
quarterly in arrears on the last Business Day of each March,
45
June, September and December, commencing with the first such date to
occur after the Closing Date, and on the Revolving Loan Maturity Date.
The commitment fee shall be calculated quarterly in arrears, and if
there is any change in the Applicable Rate during any quarter, the
actual daily amount shall be computed and multiplied by the Applicable
Rate separately for each period during such quarter that such Applicable
Rate was in effect.
(b) Other Fees.
(i) The Borrowers shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in
the amounts and at the times specified in the Fee Letter. Such
fees shall be fully earned when paid and shall non-refundable for
any reason whatsoever.
(ii) The Borrowers shall pay to the Lenders such fees as
shall have been separately agreed upon in writing in the amounts
and at the times so specified. Such fees shall be fully earned
when paid and shall not be refundable for any reason whatsoever.
2.10 COMPUTATION OF INTEREST AND FEES.
All computations of interest for Base Rate Loans when the Base Rate is
determined by Bank of America's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year). Interest shall
accrue on each Loan for the day on which the Loan is made, and shall not accrue
on a Loan, or any portion thereof, for the day on which the Loan or such portion
is paid, provided that any Loan that is repaid on the same day on which it is
made shall, subject to Section 2.12(a), bear interest for one day.
2.11 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders and the
interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrowers
hereunder to pay any amount owing with respect to the Obligations. In the event
of any conflict between the accounts and records maintained by any Lender and
the accounts and records of the Administrative Agent in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender made through the
Administrative Agent, the Borrowers shall execute and deliver to such Lender
(through the Administrative Agent) a promissory note, which shall evidence such
Lender's Loans in addition to such accounts or records. Each such promissory
note shall (i) in the case of
46
Revolving Loans, be in the form of Exhibit 2.11(a) (a "Revolving Note"), (ii) in
the case of Swing Line Loans, be in the form of Exhibit 2.11(b) (a "Swing Line
Note") and (iii) in the case of the Tranche B Term Loan, be in the form of
Exhibit 2.11(c) (a "Tranche B Term Note"). Each Lender may attach schedules to
its Note and endorse thereon the date, Type (if applicable), amount and maturity
of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a), each Revolving Lender and the Administrative Agent shall maintain in
accordance with its usual practice accounts or records evidencing the purchases
and sales by such Lender of participations in Letters of Credit and Swing Line
Loans. In the event of any conflict between the accounts and records maintained
by the Administrative Agent and the accounts and records of any Revolving Lender
in respect of such matters, the accounts and records of the Administrative Agent
shall control in the absence of manifest error.
2.12 PAYMENTS GENERALLY.
(a) All payments to be made by the Borrowers shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrowers
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Pro Rata Share (or other applicable share as provided herein) of
such payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent after 2:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue.
(b) Subject to the definition of "Interest Period", if any payment to be
made by the Borrowers shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.
(c) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first,
toward costs and expenses (including Attorney Costs and amounts payable under
Article III) incurred by the Administrative Agent and each Lender, (ii) second,
toward repayment 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 (iii) third, toward repayment of principal and L/C
Borrowings then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and L/C Borrowings then due to such
parties.
(d) Unless the Borrowers or any Lender have notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrowers or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Borrowers or such Lender, as the case may be, have
47
timely made such payment and may (but shall not be so required to), in reliance
thereon, make available a corresponding amount to the Person entitled thereto.
If and to the extent that such payment was not in fact made to the
Administrative Agent in immediately available funds, then:
(i) if the Borrowers failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the portion
of such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect
of each day from and including the date such amount was made available
by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds at the
Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof
in immediately available funds, together with interest thereon for the
period from the date such amount was made available by the
Administrative Agent to the Borrowers to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender's Loan included in the
applicable Borrowing. If such Lender does not pay such amount forthwith
upon the Administrative Agent's demand therefor, the Administrative
Agent may make a demand therefor upon the Parent (on behalf of the
Borrowers), and the Borrowers shall pay such amount to the
Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest
applicable to the applicable Borrowing. Nothing herein shall be deemed
to relieve any Lender from its obligation to fulfill its Commitment or
to prejudice any rights which the Administrative Agent or the Borrowers
may have against any Lender as a result of any default by such Lender
hereunder.
A notice of the Administrative Agent to any Lender or the Parent (on
behalf of the Borrowers) with respect to any amount owing under this
subsection (c) shall be conclusive, absent manifest error.
(e) If any Lender makes available to the Administrative Agent funds for
any Loan to be made by such Lender as provided in the foregoing provisions of
this Article II, and such funds are not made available to the Borrowers by the
Administrative Agent because the conditions to the applicable Borrowing set
forth in Article V are not satisfied or waived in accordance with the terms
hereof, the Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund
participations in Letters of Credit and Swing Line Loans are several and not
joint. The failure of any Lender to make any Loan or to fund any such
participation on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan or purchase
its participation.
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(g) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.13 SHARING OF PAYMENTS.
If, other than as expressly provided elsewhere herein, any Lender shall
obtain on account of the Loans made by it, or the participations in L/C
Obligations or in Swing Line Loans held by it (but not including any amounts
applied by the Swing Line Lender to outstanding Swing Line Loans), any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) in excess of its ratable share (or other share contemplated
hereunder) thereof, such Lender shall immediately (a) notify the Administrative
Agent of such fact, and (b) purchase from the other Lenders such participations
in the Loans made by them and/or such subparticipations in the participations in
L/C Obligations or Swing Line Loans held by them, as the case may be, as shall
be necessary to cause such purchasing Lender to share the excess payment in
respect of such Loans or such participations, as the case may be, pro rata with
each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Lender under any of the
circumstances described in Section 11.06 (including pursuant to any settlement
entered into by the purchasing Lender in its discretion), such purchase shall to
that extent be rescinded and each other Lender shall repay to the purchasing
Lender the purchase price paid therefor, together with an amount equal to such
paying Lender's ratable share (according to the proportion of (i) the amount of
such paying Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered, without
further interest thereon. The Borrowers agree that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but subject
to Section 11.09) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrowers in the amount of such participation.
The Administrative Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such purchases or
repayments. Each Lender that purchases a participation pursuant to this Section
shall from and after such purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased.
2.14 JOINT AND SEVERAL LIABILITY OF THE BORROWERS.
(a) Each of the Borrowers is accepting joint and several liability
hereunder in consideration of the financial accommodations to be provided by the
Lenders under this Agreement, for the mutual benefit, directly and indirectly,
of each of the Borrowers and in consideration of the undertakings of each of the
Borrowers to accept joint and several liability for the obligations of each of
them.
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(b) Each of the Borrowers jointly and severally hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a co-debtor, joint
and several liability with the other Borrowers with respect to the payment and
performance of all of the Obligations arising under this Agreement and the other
Loan Documents, it being the intention of the parties hereto that all the
Obligations shall be the joint and several obligations of each of the Borrowers
without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make
any payment with respect to any of the Obligations hereunder as and when due or
to perform any of such Obligations in accordance with the terms thereof, then in
each such event, the other Borrowers will make such payment with respect to, or
perform, such Obligation.
(d) The obligations of each Borrower under the provisions of this
Section 2.14 constitute full recourse obligations of such Borrower, enforceable
against it to the full extent of its properties and assets, irrespective of the
validity, regularity or enforceability of this Agreement or any other
circumstances whatsoever.
(e) Except as otherwise expressly provided herein, each Borrower hereby
waives notice of acceptance of its joint and several liability, notice of
occurrence of any Default or Event of Default (except to the extent notice is
expressly required to be given pursuant to the terms of this Agreement), or of
any demand for any payment under this Agreement, notice of any action at any
time taken or omitted by the Lenders under or in respect of any of the
Obligations hereunder, any requirement of diligence and, generally, all demands,
notices and other formalities of every kind in connection with this Agreement.
Each Borrower hereby assents to, and waives notice of, any extension or
postponement of the time for the payment of any of the Obligations hereunder,
the acceptance of any partial payment thereon, any waiver, consent or other
action or acquiescence by the Lender at any time or times in respect of any
default by any Borrower in the performance or satisfaction of any term,
covenant, condition or provision of this Agreement, any and all other
indulgences whatsoever by the Lender in respect of any of the Obligations
hereunder, and the taking, addition, substitution or release, in whole or in
part, at any time or times, of any security for any of such Obligations or the
addition, substitution or release, in whole or in part, of any Borrower. Without
limiting the generality of the foregoing, each Borrower assents to any other
action or delay in acting or any failure to act on the part of the Lenders,
including, without limitation, any failure strictly or diligently to assert any
right or to pursue any remedy or to comply fully with applicable laws or
regulations thereunder which might, but for the provisions of this Section 2.14,
afford grounds for terminating, discharging or relieving such Borrower, in whole
or in part, from any of its obligations under this Section 2.14, it being the
intention of each Borrower that, so long as any of the Obligations hereunder
remain unsatisfied, the obligations of such Borrower under this Section 2.14
shall not be discharged except by performance and then only to the extent of
such performance. The obligations of each Borrower under this Section 2.14 shall
not be diminished or rendered unenforceable by any winding up, reorganization,
arrangement, liquidation, reconstruction or similar proceeding with respect to
any reconstruction or similar proceeding with respect to any Borrower or any
Lender. The joint and several liability of the Borrowers hereunder shall
continue in full force and effect notwithstanding any absorption, merger,
amalgamation or any other change whatsoever in the name, membership,
constitution or place of formation of any Borrower or any Lender.
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(f) The provisions of this Section 2.14 are made for the benefit of the
Administrative Agent and the Lenders and their respective successors and
assigns, and may be enforced by any such Person from time to time against any of
the Borrowers as often as occasion therefor may arise and without requirement on
the part of any Lender first to marshal any of its claims or to exercise any of
its rights against any of the other Borrowers or to exhaust any remedies
available to it against any of the other Borrowers or to resort to any other
source or means of obtaining payment of any of the Obligations or to elect any
other remedy. Without limiting the generality of the foregoing, each Borrower
hereby specifically waives the benefits of N.C. Gen. Stat. ss.ss.26-7 through
26-9, inclusive, to the extent applicable. The provisions of this Section 2.14
shall remain in effect until all the Obligations hereunder shall have been paid
in full or otherwise fully satisfied. If at any time, any payment, or any part
thereof, made in respect of any of the Obligations, is rescinded or must
otherwise be restored or returned by any Lender upon the insolvency, bankruptcy
or reorganization of any of the Borrowers, or otherwise, the provisions of this
Section 2.14 will forthwith be reinstated and in effect as though such payment
had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in
any other of the Loan Documents or Swap Contracts, the obligations of each
Borrower hereunder shall be limited to an aggregate amount equal to the largest
amount that would not render its obligations hereunder subject to avoidance
under Section 548 of the Bankruptcy Code or any comparable provisions of any
applicable state law.
2.15 APPOINTMENT OF PARENT AS AGENT FOR BORROWERS.
Each of the Borrowers hereby appoints the Parent to act as its agent for
all purposes under this Agreement and the other Loan Documents (including with
respect to all matters related to the borrowing and repayment of Loans as
described in Article II and Article III hereof). Each of the Borrowers
acknowledges and agrees that (a) the Parent may execute such documents on behalf
of all the Borrowers as the Parent deems appropriate in its sole discretion and
each Borrower shall be bound by and obligated by all of the terms of any such
document executed by the Parent on its behalf, (b) any notice or other
communication delivered by the Administrative Agent or any Lender hereunder to
the Parent shall be deemed to have been delivered to each of the Borrowers and
(c) the Administrative Agent and each of the Lenders shall accept (and shall be
permitted to rely on) any document or agreement executed by the Parent on behalf
of the Borrowers (or any of them).
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by any Loan Party to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions,
51
assessments, fees, withholdings or similar charges, and all liabilities with
respect thereto, excluding, in the case of the Administrative Agent and each
Lender, taxes imposed on or measured by its overall net income, and franchise
and excise taxes imposed on it (in lieu of net income taxes), as a result of a
present or former connection between the Administrative Agent or such Lender and
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent's or such Lender's
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document) (all such
non-excluded taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities being hereinafter referred to
as "Taxes"). If any Loan Party shall be required by any Laws to deduct any Taxes
from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, (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), each of the
Administrative Agent and such Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) such Loan Party shall
make such deductions, (iii) such Loan Party shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable Laws, and (iv) within 30 days after the date of such payment, such
Loan Party shall furnish to the Administrative Agent (which shall forward the
same to such Lender) the original or a certified copy of a receipt evidencing
payment thereof.
(b) In addition, the Borrowers agree to pay any and all present or
future stamp, court or documentary taxes or charges or similar levies which
arise from any payment made under any Loan Document or from the execution,
delivery, performance, enforcement or registration of, or otherwise with respect
to, any Loan Document (hereinafter referred to as "Other Taxes"). For the
avoidance of doubt, "Other Taxes" shall not include any taxes assessed on the
net or gross income of a taxpayer, regardless of whether such taxes are
designated excise or property taxes.
(c) If the Borrowers shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Borrowers shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time interest
is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all
taxes, including taxes imposed on or measured by net income) that the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed.
(d) The Borrowers agree to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) that are paid by the Administrative Agent and such Lender and that
are the responsibility of the Borrowers, (ii) amounts payable under Section
3.01(c) and (iii) any liability (including additions to tax, penalties, interest
and expenses) arising therefrom or with respect thereto, in each case whether or
not such Taxes or Other Taxes were correctly or legally imposed or asserted by
the relevant Governmental Authority. Payment under this subsection (d) shall be
made within 30 days after the date the Lender or the Administrative Agent makes
a demand therefor.
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3.02 ILLEGALITY.
If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to
determine or charge interest rates based upon the Eurodollar Rate, then, on
notice thereof by such Lender to the Borrowers through the Administrative Agent,
any obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such
Lender notifies the Administrative Agent and the Borrowers that the
circumstances giving rise to such determination no longer exist. Upon receipt of
such notice, the Borrowers shall, upon demand from such Lender (with a copy to
the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrowers shall also pay accrued interest on the
amount so prepaid or converted. Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES.
If the Required Lenders determine that for any reason adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or
that the Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to
such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Parent and each Lender. Thereafter, the obligation of the Lenders to
make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such
notice. Upon receipt of such notice, the Borrowers may revoke any pending
request for a Borrowing of, conversion to or continuation of Eurodollar Rate
Loans or, failing that, will be deemed to have converted such request into a
request for a Borrowing of Base Rate Loans in the amount specified therein.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES ON
EURODOLLAR RATE LOANS.
(a) If any Lender determines that as a result of the introduction of or
any change in or in the interpretation of any Law, or such Lender's compliance
therewith, there shall be any increase in the cost to such Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Loans or (as the case may
be) issuing or participating in Letters of Credit, or a reduction in the amount
received or receivable by such Lender in connection with any of the foregoing
(excluding for purposes of this subsection (a) any such increased costs or
reduction in amount resulting from (i) Taxes or Other Taxes (as to which Section
3.01 shall govern), (ii) changes in the basis of taxation of overall net income
or overall gross income by the United States or any foreign jurisdiction or any
political subdivision of either thereof under the Laws of which such Lender is
organized or has its Lending Office, and (iii) reserve requirements
53
contemplated by Section 3.04(c)), then from time to time upon demand of such
Lender (with a copy of such demand to the Administrative Agent), the Borrowers
shall pay to such Lender such additional amounts as will compensate such Lender
for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law regarding
capital adequacy or any change therein or in the interpretation thereof, or
compliance by such Lender (or its Lending Office) therewith, has the effect of
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder
(taking into consideration its policies with respect to capital adequacy and
such Lender's desired return on capital), then from time to time upon demand of
such Lender (with a copy of such demand to the Administrative Agent), the
Borrowers shall pay to such Lender such additional amounts as will compensate
such Lender for such reduction.
(c) The Borrowers shall pay to each Lender, as long as such Lender shall
be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional interest on the unpaid principal amount
of each Eurodollar Rate Loan equal to the actual costs of such reserves
allocated to such Loan by such Lender (as determined by such Lender in good
faith, which determination shall be conclusive), which shall be due and payable
on each date on which interest is payable on such Loan, provided the Borrowers
shall have received at least 15 days' prior notice (with a copy to the
Administrative Agent) of such additional interest from such Lender. If a Lender
fails to give notice 15 days prior to the relevant Interest Payment Date, such
additional interest shall be due and payable 15 days from receipt of such
notice.
3.05 FUNDING LOSSES.
Upon demand of any Lender (with a copy to the Administrative Agent) from
time to time, the Borrowers shall promptly compensate such Lender for and hold
such Lender harmless from any loss, cost or expense incurred by it as a result
of:
(a) any continuation, conversion, payment or prepayment of any
Loan other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic,
by reason of acceleration, or otherwise);
(b) any failure by the Borrowers (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or
convert any Loan other than a Base Rate Loan on the date or in the
amount notified by the Borrowers; or
(c) any assignment of a Eurodollar Rate Loan on a day other than
the last day of the Interest Period therefor as a result of a request by
the Borrowers pursuant to Section 11.16;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrowers shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
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For purposes of calculating amounts payable by the Borrowers to the Lenders
under this Section 3.05, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Base Rate used in determining
the Eurodollar Rate for such Loan by a matching deposit or other borrowing in
the London interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan was in fact so
funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under Section 3.01
or 3.04, the Borrowers may replace such Lender in accordance with Section 11.16.
3.07 SURVIVAL.
All of the Borrowers' obligations under this Article III shall survive
termination of the Aggregate Revolving Commitments and repayment of all other
Obligations hereunder.
ARTICLE IV
GUARANTY
4.01 THE GUARANTY.
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, each Affiliate of a Lender that enters into a Swap Contract, and the
Administrative Agent as hereinafter provided, as primary obligor and not as
surety, the prompt payment of the Obligations in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) strictly in accordance with the terms thereof.
The Guarantors hereby further agree that if any of the Obligations are not paid
in full when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise), the
Guarantors will, jointly and severally, promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Obligations, the same will be promptly paid in
full when due (whether at extended maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise) in accordance
with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in any
other of the Loan Documents or Swap Contracts, the obligations of each Guarantor
under this Agreement and the other Loan Documents shall be limited to an
aggregate amount equal to the largest amount that would not render such
obligations subject to avoidance under any Debtor Relief Laws or any comparable
provisions of any applicable state law.
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4.02 OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantors under Section 4.01 are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Loan Documents or Swap
Contracts, or any other agreement or instrument referred to therein, or any
substitution, release, impairment or exchange of any other guarantee of or
security for any of the Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 4.02 that the obligations of the
Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrowers or
any other Guarantor for amounts paid under this Article IV until such time as
the Obligations have been Fully Satisfied. Without limiting the generality of
the foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the
liability of any Guarantor hereunder, which shall remain absolute and
unconditional as described above:
(a) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of the
Obligations shall be extended, or such performance or compliance shall
be waived;
(b) any of the acts mentioned in any of the provisions of any of
the Loan Documents, any Swap Contract between any Consolidated Party and
any Lender, or any Affiliate of a Lender, or any other agreement or
instrument referred to in the Loan Documents or such Swap Contracts,
shall be done or omitted;
(c) the maturity of any of the Obligations shall be accelerated,
or any of the Obligations shall be modified, supplemented or amended in
any respect, or any right under any of the Loan Documents, any Swap
Contract between any Consolidated Party and any Lender, or any Affiliate
of a Lender, or any other agreement or instrument referred to in the
Loan Documents or such Swap Contracts, shall be waived or any other
guarantee of any of the Obligations or any security therefor shall be
released, impaired or exchanged in whole or in part or otherwise dealt
with;
(d) any Lien granted to, or in favor of, the Administrative Agent
or any Lender or Lenders as security for any of the Obligations shall
fail to attach or be perfected; or
(e) any of the Obligations shall be determined to be void or
voidable (including, without limitation, for the benefit of any creditor
of any Guarantor) or shall be subordinated to the claims of any Person
(including, without limitation, any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby
expressly waives diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that the Administrative Agent or any
Lender exhaust any right, power or remedy or proceed against any Person under
any of the Loan Documents, any Swap Contract between any Consolidated Party and
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any Lender, or any Affiliate of a Lender, or any other agreement or instrument
referred to in the Loan Documents or such Swap Contracts, or against any other
Person under any other guarantee of, or security for, any of the Obligations.
4.03 REINSTATEMENT.
The obligations of the Guarantors under this Article IV shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and each Lender
on demand for all reasonable costs and expenses (including, without limitation,
fees and expenses of counsel) incurred by the Administrative Agent or such
Lender in connection with such rescission or restoration, including any such
costs and expenses incurred in defending against any claim alleging that such
payment constituted a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency or similar law.
4.04 CERTAIN ADDITIONAL WAIVERS.
Without limiting the generality of the provisions of this Article IV,
each Guarantor hereby specifically waives the benefits of N.C. Gen. Stat. ▇▇.▇▇.
26-7 through 26-9, inclusive, to the extent applicable. Each Guarantor further
agrees that such Guarantor shall have no right of recourse to security for the
Obligations, except through the exercise of rights of subrogation pursuant to
Section 4.02 and through the exercise of rights of contribution pursuant to
Section 4.06.
4.05 REMEDIES.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, the Obligations may be declared to be forthwith due
and payable as provided in Section 9.02 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section
9.02) for purposes of Section 4.01 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Obligations from
becoming automatically due and payable) as against any other Person and that, in
the event of such declaration (or the Obligations being deemed to have become
automatically due and payable), the Obligations (whether or not due and payable
by any other Person) shall forthwith become due and payable by the Guarantors
for purposes of Section 4.01. The Guarantors acknowledge and agree that their
obligations hereunder are secured in accordance with the terms of the Collateral
Documents and that the Lenders may exercise their remedies thereunder in
accordance with the terms thereof.
4.06 RIGHTS OF CONTRIBUTION.
The Guarantors hereby agree as among themselves that, if any Guarantor
shall make an Excess Payment (as defined below), such Guarantor shall have a
right of contribution from each other Guarantor in an amount equal to such other
Guarantor's Contribution Share (as defined below) of such Excess Payment. The
payment obligations of any Guarantor under this Section 4.06 shall
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be subordinate and subject in right of payment to the Obligations until such
time as the Obligations have been Fully Satisfied, and none of the Guarantors
shall exercise any right or remedy under this Section 4.06 against any other
Guarantor until such Obligations have been Fully Satisfied. For purposes of this
Section 4.06, (a) "Excess Payment" shall mean the amount paid by any Guarantor
in excess of its Ratable Share of any Guaranteed Obligations; (b) "Ratable
Share" shall mean, for any Guarantor in respect of any payment of Obligations,
the ratio (expressed as a percentage) as of the date of such payment of
Guaranteed Obligations of (i) the amount by which the aggregate present fair
salable value of all of its assets and properties exceeds the amount of all
debts and liabilities of such Guarantor (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of such
Guarantor hereunder) to (ii) the amount by which the aggregate present fair
salable value of all assets and other properties of all of the Loan Parties
exceeds the amount of all of the debts and liabilities (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of the Loan Parties hereunder) of the Loan Parties; provided,
however, that, for purposes of calculating the Ratable Shares of the Guarantors
in respect of any payment of Obligations, any Guarantor that became a Guarantor
subsequent to the date of any such payment shall be deemed to have been a
Guarantor on the date of such payment and the financial information for such
Guarantor as of the date such Guarantor became a Guarantor shall be utilized for
such Guarantor in connection with such payment; (c) "Contribution Share" shall
mean, for any Guarantor in respect of any Excess Payment made by any other
Guarantor, the ratio (expressed as a percentage) as of the date of such Excess
Payment of (i) the amount by which the aggregate present fair salable value of
all of its assets and properties exceeds the amount of all debts and liabilities
of such Guarantor (including contingent, subordinated, unmatured, and
unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder) to (ii) the amount by which the aggregate present fair salable value
of all assets and other properties of the Loan Parties other than the maker of
such Excess Payment exceeds the amount of all of the debts and liabilities
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of the Loan Parties) of the Loan Parties other
than the maker of such Excess Payment; provided, however, that, for purposes of
calculating the Contribution Shares of the Guarantors in respect of any Excess
Payment, any Guarantor that became a Guarantor subsequent to the date of any
such Excess Payment shall be deemed to have been a Guarantor on the date of such
Excess Payment and the financial information for such Guarantor as of the date
such Guarantor became a Guarantor shall be utilized for such Guarantor in
connection with such Excess Payment; and (d) "Guaranteed Obligations" shall mean
the Obligations guaranteed by the Guarantors pursuant to this Article IV. This
Section 4.06 shall not be deemed to affect any right of subrogation, indemnity,
reimbursement or contribution that any Guarantor may have under Law against the
Borrowers in respect of any payment of Guaranteed Obligations. Notwithstanding
the foregoing, all rights of contribution against any Guarantor shall terminate
from and after such time, if ever, that such Guarantor shall be relieved of its
obligations in accordance with Section 10.11.
4.07 GUARANTEE OF PAYMENT; CONTINUING GUARANTEE.
The guarantee in this Article IV is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Obligations
whenever arising.
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ARTICLE V
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01 CONDITIONS OF INITIAL CREDIT EXTENSION.
The obligation of each Lender to make its initial Credit Extension
hereunder is subject to satisfaction of the following conditions precedent:
(a) Loan Documents, Organization Documents, Etc. The
Administrative Agent's receipt of the following, each of which shall be
originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of
the signing Loan Party, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing
Date) and each in form and substance satisfactory to the Administrative
Agent and its legal counsel:
(i) executed counterparts of this Agreement and the other
Loan Documents;
(ii) a Note executed by the Borrowers in favor of each
Lender requesting a Note;
(iii) copies of the Organization Documents of each Loan
Party certified to be true and complete as of a recent date by
the appropriate Governmental Authority of the state or other
jurisdiction of its incorporation or organization, where
applicable, and certified by a secretary or assistant secretary
of such Loan Party to be true and correct as of the Closing Date;
(iv) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as the Administrative Agent may
require evidencing the identity, authority and capacity of each
Responsible Officer thereof authorized to act as a Responsible
Officer in connection with this Agreement and the other Loan
Documents to which such Loan Party is a party; and
(v) such documents and certifications as the
Administrative Agent may reasonably require to evidence that
each Loan Party is duly organized or formed, and is validly
existing, in good standing and qualified to engage in business
in (A) the jurisdiction of its incorporation or organization and
(B) each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such
qualification, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect.
(b) Opinions of Counsel. The Administrative Agent shall have
received, in each case dated as of the Closing Date and in form and
substance reasonably satisfactory to the Administrative Agent:
59
(i) a legal opinion of ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, special New York
counsel for the Loan Parties;
(ii) a legal opinion of Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel
for the Loan Parties
(iii) a legal opinion of special local counsel for each
Loan Party not organized in the State of Tennessee, New York or
Delaware.
(c) Perfection and Priority of Liens. Receipt by the
Administrative Agent of the following:
(i) UCC financing statements for each appropriate
jurisdiction as is necessary, in the Administrative Agent's sole
discretion, to perfect the Administrative Agent's security
interest in the Collateral; and
(ii) all certificates evidencing any certificated Capital
Stock pledged to the Administrative Agent pursuant to the Pledge
Agreement, together with duly executed in blank, undated stock
powers attached thereto (unless, with respect to the pledged
Capital Stock of any Foreign Subsidiary, such stock powers are
deemed unnecessary by the Administrative Agent in its reasonable
discretion under the law of the jurisdiction of incorporation of
such Person).
(d) Evidence of Insurance. Receipt by the Administrative Agent
of copies of insurance policies or certificates of insurance of the Loan
Parties evidencing liability and casualty insurance meeting the
requirements set forth in the Loan Documents.
(e) Government Consent. Receipt by the Administrative Agent of
evidence that all governmental, shareholder and material third party
consents and approvals necessary or desirable in connection with the
transactions contemplated hereby have been obtained, and no law or
regulation shall be applicable which in the judgment of the
Administrative Agent could have such effect.
(f) Officer's Certificates. The Administrative Agent shall have
received a certificate or certificates executed by a Responsible Officer
of the Parent as of the Closing Date, in form and substance satisfactory
to the Administrative Agent, stating that (A) the conditions specified
in Sections 5.02(a) and (b) have been satisfied, (B) each Loan Party is
in compliance with all existing material financial obligations, (C) all
governmental, shareholder and third party consents and approvals, if
any, with respect to the Loan Documents and the transactions
contemplated thereby have been obtained (and attaching copies thereof),
(D) no action, suit, investigation or proceeding is pending or
threatened in any court or before any arbitrator or governmental
instrumentality that purports to affect any Loan Party or any
transaction contemplated by the Loan Documents, if such action, suit,
investigation or proceeding could reasonably be expected to be
determined adversely, and if so determined, to have a Material Adverse
Effect and (E) immediately after giving effect to the transactions
contemplated hereby, (1) no Default or Event of Default exists, (2) all
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representations and warranties contained herein and in the other Loan
Documents are true and correct in all material respects and (3) the Loan
Parties are in compliance with each of the financial covenants set forth
in Section 8.11 as of the first date provided for the measurement of
each of such financial covenants in accordance with the terms thereof.
(g) Termination of Existing Credit Agreement. Receipt by the
Administrative Agent of evidence that the loans and other obligations
under the Existing Credit Agreement have been repaid (or will be repaid
with the initial Loans made hereunder on the Closing Date) and the
commitments thereunder have been terminated.
(h) Fees. Any fees required to be paid on or before the Closing
Date shall have been paid.
(i) Attorney Costs. Unless waived by the Administrative Agent,
the Borrowers shall have paid all Attorney Costs of the Administrative
Agent to the extent invoiced prior to or on the Closing Date, plus such
additional amounts of Attorney Costs as shall constitute its reasonable
estimate of Attorney Costs incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter
preclude a final settling of accounts between the Parent and the
Administrative Agent).
(j) Material Adverse Effect. No material adverse change shall
have occurred since September 30, 2002, in the business, assets,
liabilities (actual or contingent), operations, condition (financial or
otherwise), or prospects of the Borrower and its Subsidiaries taken as a
whole or in the material facts and information regarding such entities
as represented in writing prior to the Closing Date.
(k) Other. Receipt by the Lenders of such other documents,
instruments, agreements or information as reasonably requested by any
Lender, including information regarding litigation, tax, accounting,
labor, insurance, pension liabilities (actual or contingent), real
estate leases, material contracts, debt agreements, property ownership
and contingent liabilities of the Consolidated Parties.
5.02 CONDITIONS TO ALL CREDIT EXTENSIONS.
The obligation of each Lender to honor any Request for Credit Extension
(other than a Loan Notice requesting only a conversion of Loans to the other
Type, or a continuation of Eurodollar Rate Loans) is subject to the following
conditions precedent:
(a) The representations and warranties of the Borrowers and each
other Loan Party contained in Article VI or any other Loan Document, or
which are contained in any document furnished at any time under or in
connection herewith or therewith, shall be true and correct on and as of
the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in
which case they shall be true and correct as of such earlier date, and
except that for purposes of this Section 5.02, the representations and
warranties contained in subsections (a) and (b) of
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Section 6.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section
7.01.
(b) No Default shall exist, or would result from such proposed
Credit Extension.
(c) There shall not have been commenced and be pending against
any Consolidated Party an involuntary case under any applicable Debtor
Relief Law, now or hereafter in effect, or any case, proceeding or other
action for the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or
for any substantial part of its Property or for the winding up or
liquidation of its affairs.
(d) The Administrative Agent and, if applicable, the L/C Issuer
or the Swing Line Lender shall have received a Request for Credit
Extension in accordance with the requirements hereof.
Each Request for Credit Extension (other than a Loan Notice requesting
only a conversion of Loans to the other Type or a continuation of Eurodollar
Rate Loans) submitted by the Parent (on behalf of the Borrowers) shall be deemed
to be a representation and warranty that the conditions specified in Sections
5.02(a), (b) and (c) have been satisfied on and as of the date of the applicable
Credit Extension.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Loan Parties represent and warrant to the Administrative Agent and
the Lenders that:
6.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS.
Each Consolidated Party (a) is duly organized or formed, validly
existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i)
own its assets and carry on its business and (ii) execute, deliver and perform
its obligations under the Loan Documents, if any, to which it is a party and (c)
is duly qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license; except in each
case referred to in clause (b)(i) or (c), to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect.
6.02 AUTHORIZATION; NO CONTRAVENTION.
The execution, delivery and performance by each Loan Party of each Loan
Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a)
contravene the terms of any of such Person's Organization Documents; (b)
conflict with or result in any breach or contravention of, or the
62
creation of any Lien under, (i) any Contractual Obligation to which such Person
is a party or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject;
or (c) violate any Law (including Regulation U or Regulation X issued by the
FRB).
6.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS.
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan
Document, except for (a) consents, authorizations, notices and filings described
in Schedule 6.03, all of which have been obtained or made or have the status
described in such Schedule 6.03 and (b) filings to perfect the Liens created by
the Collateral Documents.
6.04 BINDING EFFECT.
This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that
is a party thereto. This Agreement constitutes, and each other Loan Document
when so delivered will constitute, a legal, valid and binding obligation of such
Loan Party, enforceable against each Loan Party that is a party thereto in
accordance with its terms except as enforceability may be limited by applicable
Debtor Relief Laws and by general equitable principles (whether enforcement is
sought by proceedings in equity or at law).
6.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Consolidated Parties as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Consolidated Parties as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness.
(b) The unaudited consolidated financial statements of the Consolidated
Parties dated December 31, 2002, and the related consolidated statements of
income or operations, shareholders' equity and cash flows for the fiscal quarter
ended on that date (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (ii) fairly present the financial condition of the
Consolidated Parties as of the date thereof and their results of operations for
the period covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments.
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(c) During the period from September 30, 2002, to and including the
Closing Date, there has been no sale, transfer or other disposition by any
Consolidated Party of any material part of the business or Property of the
Consolidated Parties, taken as a whole, and no purchase or other acquisition by
any of them of any business or property (including any Capital Stock of any
other Person) material in relation to the consolidated financial condition of
the Consolidated Parties, taken as a whole, in each case, which is not reflected
in the foregoing financial statements or in the notes thereto and has not
otherwise been disclosed in writing to the Lenders on or prior to the Closing
Date.
(d) The financial statements delivered pursuant to Section 7.01(a) and
(b) have been prepared in accordance with GAAP (except as may otherwise be
permitted under Section 7.01(a) and (b)) and present fairly (on the basis
disclosed in the footnotes to such financial statements) the consolidated
financial condition, results of operations and cash flows of the Consolidated
Parties as of such date and for such periods.
(e) Since the date of the Audited Financial Statements, there has been
no event or circumstance, either individually or in the aggregate, that has had
or could reasonably be expected to have a Material Adverse Effect.
6.06 LITIGATION.
There are no actions, suits, proceedings, claims or disputes pending or,
to the knowledge of the Loan Parties after due and diligent investigation,
threatened at law, in equity, in arbitration or before any Governmental
Authority, by or against any Consolidated Party or against any of its properties
or revenues that (a) purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby or (b) either
individually or in the aggregate, can reasonably be expected to be determined
adversely, and if so determined to have a Material Adverse Effect.
6.07 NO DEFAULT.
No Consolidated Party is in default under or with respect to any
Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has
occurred and is continuing or would result from the consummation of the
transactions contemplated by this Agreement or any other Loan Document.
6.08 OWNERSHIP OF PROPERTY; LIENS.
Each Consolidated Party has good record and marketable title in fee
simple to, or valid leasehold interests in, all real property necessary or used
in the ordinary conduct of its business, except for such defects in title as
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. The property of the Consolidated Parties is subject to
no Liens, other than Permitted Liens.
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6.09 ENVIRONMENTAL COMPLIANCE.
Except as would not reasonably be expected to have a Material Adverse
Effect:
(a) Each of the Real Properties and all operations at the Real
Properties are in compliance with all applicable Environmental Laws in
all material respects and, to the knowledge of the Responsible Officers
of the Loan Parties, there are no conditions relating to the Real
Properties or the Businesses that are likely to give rise to liability
under any applicable Environmental Laws.
(b) To the knowledge of the Responsible Officers of the Loan
Parties, none of the Real Properties contains, or has previously
contained, any Hazardous Materials at, on or under the Real Properties
in amounts or concentrations that constitute a violation of, or could
give rise to liability under, applicable Environmental Laws.
(c) No Consolidated Party has received any written or verbal
notice of, or inquiry from any Governmental Authority regarding, any
violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Real Properties or the
Businesses, nor does any Responsible Officer of any Loan Party have
knowledge or reason to believe that any such notice will be received or
is being threatened.
(d) No Consolidated Party has generated, treated, stored or
disposed of Hazardous Materials at, on or under any of the Real
Properties in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Law. To the knowledge of
the Responsible Officers of the Loan Parties, Hazardous Materials have
not been transported or disposed of from the Real Properties, in each
case by or on behalf of any Consolidated Party, in violation of, or in a
manner that is likely to give rise to liability under, any applicable
Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Responsible Officers of
the Loan Parties, threatened, under any Environmental Law to which any
Consolidated Party is or will be named as a party, nor are there any
consent decrees or other decrees, consent orders, administrative orders
or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Consolidated
Parties, the Real Properties or the Businesses.
6.10 INSURANCE.
The properties of the Parent and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the
Parent, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Parent, the other Borrowers or the
applicable Subsidiary operates. The present insurance coverage of the Loan
Parties is outlined as to carrier, policy number, expiration date, type and
amount on Schedule 6.10.
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6.11 TAXES.
The Consolidated Parties have filed all Federal, state and other
material tax returns and reports required to be filed, and have paid all
Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been established in accordance with GAAP. To the knowledge of the
Borrowers, there is no proposed tax assessment against the Borrowers or any
Subsidiary that would, if made, have a Material Adverse Effect.
6.12 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the
knowledge of the Loan Parties, nothing has occurred which would prevent, or
cause the loss of, such qualification. Each Loan Party and each ERISA Affiliate
have made all required contributions to each Plan subject to Section 412 of the
Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.
(b) There are no pending or, to the knowledge of the Loan Parties,
threatened claims (other than routine claims for benefits), actions or lawsuits,
or action by any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. None of the
Consolidated Parties nor, to the knowledge of the Loan Parties, any other Person
has engaged in any prohibited transaction or violation of the fiduciary
responsibility rules under ERISA or the Code with respect to any Plan that has
resulted or could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) no Loan Party nor
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) no Loan Party nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and
no event has occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with
respect to a Multiemployer Plan; and (v) no Loan Party nor any ERISA Affiliate
has engaged in a transaction that could be subject to Sections 4069 or 4212(c)
of ERISA.
6.13 SUBSIDIARIES.
The corporate capital and ownership structure of the Consolidated
Parties as of the Closing Date is as described in Schedule 6.13(a). Set forth on
Schedule 6.13(b) is a complete and accurate
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list as of the Closing Date with respect to the Parent and each of its direct
and indirect Subsidiaries of (i) jurisdiction of incorporation and (ii) the
percentage of outstanding shares of each class of Capital Stock owned (directly
or indirectly) by the Consolidated Parties. The outstanding Capital Stock of
each of the Consolidated Parties that is owned by a Consolidated Party is
validly issued, fully paid and non-assessable and is owned by the Consolidated
Parties, directly or indirectly, in the manner set forth on Schedule 6.13(b),
free and clear of all Liens (other than those arising under or contemplated in
connection with the Credit Documents). Other than as set forth in Schedule
6.13(b), none of the Parent's Subsidiaries has outstanding any securities
convertible into or exchangeable for its Capital Stock nor does any such Person
have outstanding any rights to subscribe for or to purchase or any options for
the purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to
its Capital Stock.
6.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) No Borrower is engaged or will engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the FRB), or extending credit for
the purpose of purchasing or carrying margin stock and no part of the Letters of
Credit or proceeds of the Loans will be used, directly or indirectly, for the
purpose of purchasing or carrying any margin stock.
(b) None of the Parent, any Person Controlling a Borrower, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, (ii) is or is required to be registered as an "investment company"
under the Investment Company Act of 1940 or (iii) subject to regulation under
any other Law which limits its ability to incur the Obligations.
6.15 DISCLOSURE.
Each Loan Party has disclosed to the Administrative Agent and the
Lenders all agreements, instruments and corporate or other restrictions to which
it or any of its Subsidiaries is subject, and all other matters known to it,
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. No report, financial statement, certificate or
other information furnished (whether in writing or orally) by or on behalf of
any Loan Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, the Loan Parties represent only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
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6.16 COMPLIANCE WITH LAWS.
Each Consolidated Party is in compliance in all material respects with
the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a)
such requirement of Law or order, writ, injunction or decree is being contested
in good faith by appropriate proceedings diligently conducted or (b) the failure
to comply therewith, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
6.17 INTELLECTUAL PROPERTY.
Each Consolidated Party owns, or has the legal right to use, all
material trademarks, service marks, trade names, trade dress, patents,
copyrights, technology, know-how and processes (the "Intellectual Property")
necessary for each of them to conduct its business as currently conducted. Set
forth on Schedule 6.17 is a list of all Intellectual Property registered or
pending registration with the United States Copyright Office or the United
States Patent and Trademark Office and owned by each Loan Party or that any Loan
Party has the right to use. Except as provided on Schedule 6.17, no claim has
been asserted and is pending by any Person challenging or questioning the use of
the Intellectual Property or the validity or effectiveness of the Intellectual
Property, nor does any Loan Party know of any such claim, and, to the knowledge
of the Responsible Officers of the Loan Parties, the use of the Intellectual
Property by any Consolidated Party or the granting of a right or a license in
respect of the Intellectual Property from any Consolidated Party does not
infringe on the rights of any Person, except for such claims and infringements
that, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect. As of the Closing Date, none of the Intellectual Property of the
Loan Parties is subject to any licensing agreement or similar arrangement except
as set forth on Schedule 6.17.
6.18 SOLVENCY.
The Loan Parties are Solvent on a consolidated basis.
6.19 INVESTMENTS.
All Investments of each Consolidated Party are Permitted Investments.
6.20 BUSINESS LOCATIONS.
Set forth on Schedule 6.20 is a list of all Real Properties located in
the United States of America that are owned or leased by the Loan Parties as of
the Closing Date.
6.21 BROKERS' FEES.
No Consolidated Party has any obligation to any Person in respect of any
finder's, broker's, investment banking or other similar fee in connection with
any of the transactions contemplated under the Loan Documents.
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6.22 LABOR MATTERS.
Except as set forth on Schedule 6.22, there are no collective bargaining
agreements or Multiemployer Plans covering the employees of a Consolidated Party
as of the Closing Date and none of the Consolidated Parties has suffered any
strikes, walkouts, work stoppages or other material labor difficulty within the
last five years.
6.23 REPRESENTATIONS AND WARRANTIES FROM OTHER LOAN DOCUMENTS.
Each of the representations and warranties made by any of the Loan
Parties in any of the other Loan Documents is true and correct in all material
respects, in each case, as of the date the same was made or deemed made.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, each Loan Party shall, and shall (except in the
case of the covenants set forth in Sections 7.01, 7.02, 7.03 and 7.11) cause
each Subsidiary to:
7.01 FINANCIAL STATEMENTS.
Deliver to the Administrative Agent (and the Administrative Agent shall
disseminate such information pursuant to the terms of Section 7.02 hereof), in
form and detail satisfactory to the Administrative Agent and the Required
Lenders:
(a) as soon as available, but in any event within 90 days after
the end of each fiscal year of the Parent, a consolidated balance sheet
of the Consolidated Parties as at the end of such fiscal year, and the
related consolidated statements of earnings, shareholders' equity and
cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, audited and
accompanied by a report and opinion of an independent certified public
accountant of nationally recognized standing reasonably acceptable to
the Required Lenders, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be
subject to any "going concern" or like qualification or exception or any
qualification or exception as to the scope of such audit; and
(b) as soon as available, but in any event within 45 days after
the end of each of the first three fiscal quarters of each fiscal year
of the Parent, a consolidated balance sheet of the Consolidated Parties
as at the end of such fiscal quarter, and the related consolidated
statements of earnings, shareholders' equity and cash flows for such
fiscal quarter and for the portion of the Parent's fiscal
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year then ended, setting forth in each case in comparative form the
figures for the corresponding fiscal quarter of the previous fiscal year
and the corresponding portion of the previous fiscal year, all in
reasonable detail and certified by a Responsible Officer of the Parent
as fairly presenting the financial condition, results of operations,
shareholders' equity and cash flows of the Consolidated Parties in
accordance with GAAP, subject only to normal year-end audit adjustments
and the absence of footnotes.
7.02 CERTIFICATES; OTHER INFORMATION.
Deliver to the Administrative Agent (and the Administrative Agent shall
disseminate such information pursuant to the terms of this Section 7.02), in
form and detail satisfactory to the Administrative Agent and the Required
Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 7.01(a), a certificate of its independent
certified public accountants certifying such financial statements and
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or, if any such Default shall exist, stating
the nature and status of such event;
(b) concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (b), a duly completed Compliance
Certificate signed by a Responsible Officer of the Parent;
(c) if requested by the Administrative Agent, within 30 days
after the end of each fiscal year of the Parent, beginning with the
fiscal year ending September 30, 2003, an annual business plan and
budget of the Consolidated Parties containing, among other things, pro
forma financial statements for the then current fiscal year.
(d) within 90 days after the end of each fiscal year of the
Parent, a certificate containing information regarding the amount of all
Dispositions, Debt Issuances, Equity Issuances and Acquisitions that
occurred during the prior fiscal year.
(e) promptly after any request by the Administrative Agent or
any Lender, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit
committee of the board of directors) of the Parent by independent
accountants in connection with the accounts or books of the Parent or
any Subsidiary, or any audit of any of them;
(f) promptly after the same are available, (i) copies of each
annual report, proxy or financial statement or other report or
communication sent to the stockholders of the Parent, and copies of all
annual, regular, periodic and special reports and registration
statements which the Parent may file or be required to file with the SEC
under Section 13 or 15(d) of the Securities Exchange Act of 1934 or to a
holder of any Indebtedness owed by any Consolidated Party in its
capacity as such holder and not otherwise required to be delivered to
the Administrative Agent pursuant hereto and (ii) upon the request of
the Administrative Agent, all reports and written information to and
from the United States Environmental Protection Agency, or any state or
local agency responsible for
▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Occupational Health and Safety
Administration, or any state or local agency responsible for health and
safety matters, or any successor agencies or authorities concerning
environmental, health or safety matters;
(g) promptly upon receipt thereof, a copy of any other report or
"management letter" submitted by independent accountants to any Loan
Party in connection with any annual, interim or special audit of the
books of such Person; and
(h) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrowers or any Subsidiary, or
compliance with the terms of the Loan Documents, as the Administrative
Agent or any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to Section 7.01(a)
or (b) or Section 7.02(e), (f), (g) or (h) may be delivered
electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Parent or Borrowers post such
documents, or provides a link thereto on the Parent's website on the
Internet at the website address listed on Schedule 11.02; or (ii) on
which such documents are posted by the Administrative Agent (on the
Borrowers' behalf) on IntraLinks/IntraAgency or another relevant
website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored
by the Administrative Agent); provided that: (i) the Borrowers shall
deliver paper copies of such documents to the Administrative Agent or
any Lender that requests the Borrowers to deliver such paper copies
until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Borrowers shall notify
(which may be by facsimile or electronic mail) the Administrative Agent
and each Lender of the posting of any such documents (each Lender to
which delivery of such documents shall be made by posting to any such
website shall have been given access to such website on or prior to the
date of such posting) and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such
documents. Notwithstanding anything contained herein, in every instance
the Parent shall be required to provide paper copies of the Compliance
Certificates required by Section 7.02(b) to the Administrative Agent and
each of the Lenders. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or
to maintain copies of the documents referred to above, and in any event
shall have no responsibility to monitor compliance by the Parent or the
Borrowers with any such request for delivery, and each Lender shall be
solely responsible for requesting delivery to it or maintaining its
copies of such documents.
7.03 NOTICES AND INFORMATION.
Promptly notify the Administrative Agent (and the Administrative Agent
shall disseminate such information pursuant to the terms of Section 7.02 hereof)
of:
(a) The occurrence of any Default.
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(b) Any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect, including (i) breach or non-performance of,
or any default under, a Contractual Obligation of any Borrower or any
Subsidiary; (ii) any dispute, litigation, investigation, proceeding or
suspension between any Borrower or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development in, any
litigation or proceeding affecting any Borrower or any Subsidiary, including
pursuant to any applicable Environmental Laws.
(c) The occurrence of any ERISA Event.
(d) Any material change in accounting policies or financial reporting
practices by the Parent, the Borrowers or any Subsidiary.
Each notice pursuant to this Section 7.03(a) through (d) shall be
accompanied by a statement of a Responsible Officer of the Parent setting forth
details of the occurrence referred to therein and stating what action the Parent
or the Borrower has taken and proposes to take with respect thereto. Each notice
pursuant to Section 7.03(a) shall describe with particularity any and all
provisions of this Agreement and any other Loan Document that have been
breached.
7.04 PAYMENT OF OBLIGATIONS.
Except to the extent that a failure to pay and discharge could not
reasonably be expected to have a Material Adverse Effect, pay and discharge as
the same shall become due and payable, all its obligations and liabilities,
including (a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being contested
in good faith by appropriate proceedings diligently conducted and adequate
reserves in accordance with GAAP are being maintained by the Borrowers or such
Subsidiary; (b) all lawful claims which, if unpaid, would by law become a Lien
upon its property; and (c) all Indebtedness, as and when due and payable, but
subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
7.05 PRESERVATION OF EXISTENCE, ETC.
(a) Preserve, renew and maintain in full force and effect its legal
existence and good standing under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 8.04 or 8.05; (b) take
all reasonable action to maintain all material rights, privileges, permits,
licenses and franchises necessary or desirable in the normal conduct of its
business; and (c) preserve or renew all of its material registered copyrights,
patents, trademarks, trade names and service marks.
7.06 MAINTENANCE OF PROPERTIES.
(a) Maintain, preserve and protect all of its material properties and
equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear and Involuntary Dispositions excepted; and (b)
make all necessary repairs thereto and
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renewals and replacements thereof; and (c) use the standard of care typical in
the industry in the operation and maintenance of its facilities.
7.07 MAINTENANCE OF INSURANCE.
Maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) in such amounts, covering such risks and liabilities and
with such deductibles or self-insurance retentions as are in accordance with
normal industry practice. The Administrative Agent shall be named as loss payee
or mortgagee, as its interest may appear, and/or additional insured, as
applicable, with respect to any such insurance providing coverage in respect of
any Collateral, and each provider of any such insurance shall agree, by
endorsement upon the policy or policies issued by it or by independent
instruments furnished to the Administrative Agent, that it will give the
Administrative Agent thirty (30) days prior written notice before any such
policy or policies shall be altered or canceled.
7.08 COMPLIANCE WITH LAWS.
Comply with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its business or property, except
in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted; or (b) the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect.
7.09 BOOKS AND RECORDS.
(a) Maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of
all financial transactions and matters involving the assets and business of the
Borrowers or such Subsidiary, as the case may be; and (b) maintain such books of
record and account in material conformity with all applicable requirements of
any Governmental Authority having regulatory jurisdiction over the Borrowers or
such Subsidiary, as the case may be.
7.10 INSPECTION RIGHTS.
Permit representatives and independent contractors of the Administrative
Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss its affairs, finances and accounts with its directors,
officers, and independent public accountants, all at the expense of the
Borrowers and at such reasonable times during normal business hours and as often
as may be reasonably desired, upon reasonable advance notice to the Parent (on
behalf of the Borrowers); provided, however, that when an Event of Default
exists the Administrative Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at the
expense of the Borrowers at any time during normal business hours and without
advance notice. The Loan Parties agree that the Administrative Agent, and its
representatives, may conduct an annual audit of the Collateral, at the expense
of the Loan Parties.
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7.11 USE OF PROCEEDS.
Use the proceeds of the Credit Extensions for general corporate purposes
not in contravention of any Law or of any Loan Document.
7.12 ADDITIONAL GUARANTORS.
If at any time, the Loan Parties hereunder shall (a) collectively
represent less than ninety percent (90%) of the combined revenue of the Parent
and its Domestic Subsidiaries, (b) collectively own less than ninety percent
(90%) of the aggregate value of the consolidated Real Property assets of the
Consolidated Parties, (c) collectively own less than one hundred percent (100%)
of the Real Properties owned by the Parent and its Wholly Owned Subsidiaries
which are Domestic Subsidiaries or (d) shall not collectively represent one
hundred percent (100%) of the ownership of each of the Material Foreign
Subsidiaries (to the extent owned by the Parent and its Domestic Subsidiaries),
then the Parent and/or the Borrowers will promptly notify the Administrative
Agent thereof and promptly cause such additional Domestic Subsidiaries which are
not Guarantors hereunder (each a "Non-Guarantor Subsidiary") to become
"Guarantors" hereunder by way of execution of a Joinder Agreement in
substantially the same form as Exhibit 7.12, such that after the joinder of such
Subsidiaries, the Loan Parties hereunder shall collectively represent at least
ninety percent (90%) of the combined revenue of the Parent and its Domestic
Subsidiaries, collectively own ninety percent (90%) of the consolidated Real
Property assets of the Consolidated Parties, collectively own one hundred
percent (100%) of the Real Properties owned by the Parent and its Wholly Owned
Subsidiaries which are Domestic Subsidiaries and collectively represent one
hundred percent (100%) of the ownership of each of the Material Foreign
Subsidiaries (to the extent owned by the Parent and its Domestic Subsidiaries),
as the case may be. The delivery of the Joinder Agreement shall be accompanied
by the delivery of such other documentation as the Agent may reasonably request
in connection with the foregoing, including certified resolutions and other
organizational and authorizing documents of such Person and favorable opinions
of counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to
above), all in form, content and scope reasonably satisfactory to the Agent.
Notwithstanding the foregoing, the PS Subsidiary shall not be required to become
a Guarantor pursuant to this Section 7.12 so long as the only assets of the PS
Subsidiary are the subordinated notes issued to the PS Subsidiary by the Parent.
7.13 PLEDGED ASSETS.
(a) The Loan Parties will cause (i) 100% of the issued and outstanding
Capital Stock of each Guarantor hereunder and (ii) 65% (or such other percentage
that, due to a change in an applicable Law after the date hereof, (1) could not
reasonably be expected to cause the undistributed earnings of such Foreign
Subsidiary as determined for United States federal income tax purposes to be
treated as a deemed dividend to such Foreign Subsidiary's United States parent
and (2) could not reasonably be expected to cause any material adverse tax
consequences) of the issued and outstanding Capital Stock entitled to vote
(within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued
and outstanding Capital Stock not
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entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in
each Material Foreign Subsidiary that is directly owned by the Parent or any
Domestic Subsidiary to be subject at all times to a first priority, perfected
Lien in favor of the Administrative Agent pursuant to the terms and conditions
of the Collateral Documents or such other security documents as the
Administrative Agent shall reasonably request.
(b) In addition to the requirements of Section 7.13(a) and Section
7.13(c) as soon as practicable, but in any case, within thirty (30) days
following the Closing Date, the Loan Parties shall cause all of the owned and
after acquired personal Property (other than Excluded Property) of the Loan
Parties to be subject at all times to first priority, perfected Liens in favor
of the Administrative Agent, subject to Permitted Liens. With respect to any
personal Property (other than Excluded Property) required by this Section
7.13(b) to be pledged to the Administrative Agent (or acquired by any Loan Party
subsequent to the Closing Date), such Person will cause to be delivered to the
Administrative Agent, such security agreements, instruments, opinions and other
documents as may be reasonably required by the Administrative Agent, each in
form and substance acceptable to the Administrative Agent.
(c) In addition to the requirements of Section 7.13(a) and Section
7.13(b), within one hundred and twenty (120) days following the Closing Date,
the Loan Parties shall cause all of the owned and after acquired Real Properties
(other than Excluded Property) of the Loan Parties to be subject at all times to
first priority, perfected, title insured Liens in favor of the Administrative
Agent, subject to Permitted Liens. With respect to any Real Property (other than
Excluded Property) required by this Section 7.13(c) to be pledged to the
Administrative Agent (or acquired by any Loan Party subsequent to the Closing
Date), such Person will cause to be delivered to the Administrative Agent, in
form and substance acceptable to the Administrative Agent, documents,
instruments, opinions and other items reasonably requested by the Administrative
Agent, including standard ALTA title policies ensuring the priority of the
mortgages in amounts and from companies acceptable to the Administrative Agent,
but excluding appraisals, environmental reports and other environmental
documentation. The title policies shall include only Permitted Liens and such
other exceptions as are reasonably acceptable to the Administrative Agent.
7.14 INTEREST RATE PROTECTION AGREEMENT.
The Borrowers shall, during the period beginning ninety (90) days
following the Closing Date to and including the fourth anniversary date of the
Closing Date, maintain protection against fluctuations in interest rates
pursuant to one or more Swap Contracts reasonably satisfactory to the
Administrative Agent and providing coverage in a notional amount equal to at
least 50% of the outstanding amount of the Tranche B Term Loan; provided,
however, that the Borrowers shall not have any obligation to keep such Swap
Contracts in place after repayment in full of the Tranche B Term Loans.
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ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, no Loan Party shall, nor shall it permit any
Subsidiary to, directly or indirectly:
8.01 LIENS.
Create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, other
than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 8.01
and any renewals or extensions thereof, provided that the property
covered thereby is not increased and any renewal, refinancing or
extension of the obligations secured or benefited thereby is permitted
by Section 8.03(b);
(c) Liens (other than Liens imposed under ERISA) for taxes,
assessments or governmental charges or levies not yet due or which are
being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on
the books of the applicable Person in accordance with GAAP;
(d) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other Liens
imposed by law or pursuant to customary reservations or retentions of
title arising in the ordinary course of business, provided that such
Liens secure only amounts not yet due and payable or, if due and
payable, are unfiled and no other action has been taken to enforce the
same or are being contested in good faith by appropriate proceedings for
which adequate reserves determined in accordance with GAAP have been
established;
(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts
and leases (other than Indebtedness), statutory obligations, surety
bonds (other than bonds related to judgments or litigation), performance
bonds and other obligations of a like nature incurred in the ordinary
course of business;
(g) easements, reservations, rights-of-way, covenants,
conditions, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and
which do not in any case materially detract from the value of the
property subject thereto or materially interfere with the ordinary
conduct of the business of the applicable Person;
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(h) Liens securing judgments for the payment of money not
constituting an Event of Default under Section 9.01(h) or securing
appeal or other surety bonds related to such judgments;
(i) Liens securing Indebtedness permitted under Section 8.03(e);
provided that (i) such Liens do not at any time encumber any Property
other than the Property financed by such Indebtedness, (ii) the
Indebtedness secured thereby does not exceed the cost or fair market
value, whichever is lower, of the Property acquired as of the date of
acquisition and (iii) such Liens attach to such Property concurrently
with or within 90 days after the acquisition thereof;
(j) to the extent that the following would constitute Liens,
leases or subleases of any Property granted to others not interfering in
any material respect with such Property or the business of such
Consolidated Party;
(k) any interest of title of a lessor under, and Liens arising
from UCC financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to, leases permitted by
this Agreement;
(l) Liens deemed to exist in connection with Investments in
repurchase agreements permitted under Section 8.02;
(m) normal and customary rights of setoff upon deposits of cash
in favor of banks or other depository institutions;
(n) Liens of a collecting bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection; and
(o) Liens of sellers of goods to the Parent and any of its
Subsidiaries arising under Article 2 of the Uniform Commercial Code or
similar provisions of applicable Laws in the ordinary course of
business, covering only the goods sold and securing only the unpaid
purchase price for such goods and related expenses.
8.02 INVESTMENTS.
Make any Investments, except:
(a) Investments held by the Borrowers or such Subsidiary in the
form of Cash Equivalents;
(b) Investments existing as of the Closing Date and set forth in
Schedule 8.02;
(c) Investments consisting of advances or loans to directors,
officers, employees, agents, customers or suppliers in an aggregate
principal amount (including Investments of such type set forth in
Schedule 8.02) not to exceed $1,000,000 at any time outstanding;
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(d) Investments in any Person which is a Loan Party prior to
giving effect to such Investment;
(e) Investments consisting of extensions of credit in the nature
of accounts receivable or notes receivable arising from the grant of
trade credit in the ordinary course of business, and Investments
received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary
in order to prevent or limit loss;
(f) Guarantees permitted by Section 8.03;
(g) Investments consisting of loans or advances by a Loan Party
to or into a Subsidiary that is not a Loan Party in an amount not to
exceed $25,000,000 in the aggregate at any time outstanding;
(h) Investments consisting of "key money" advances or other
prepaid rent paid in connection with obtaining leasehold or other
interests in real property in the ordinary course of business;
(i) Investments consisting of an Acquisition by any Consolidated
Party, provided that (i) the Property acquired (or the Property of the
Person acquired) in such Acquisition is used or useful in the same or a
similar line of business as the Parent and its Subsidiaries were engaged
in on the Closing Date (or any reasonable extensions or expansions
thereof), (ii) the Administrative Agent shall have received, or in
connection with the closing of such Acquisition will receive, all items
in respect of the Capital Stock or Property acquired in such Acquisition
required to be delivered by the terms of Section 7.12 and/or Section
7.13, (iii) in the case of an Acquisition of the Capital Stock of
another Person, the board of directors (or other comparable governing
body) of such other Person shall have duly approved such Acquisition,
(iv) if the aggregate consideration (including cash and non-cash
consideration, any assumption of Indebtedness and any earn-out payments,
but excluding consideration consisting of any Capital Stock of the
Parent issued to the seller of the Capital Stock or Property acquired in
such Acquisition and consideration consisting of the proceeds of any
Equity Issuance by the Parent consummated subsequent to the Closing Date
and the proceeds of any Disposition or Involuntary Disposition
consummated subsequent to the Closing Date) (the "Aggregate Acquisition
Consideration") is greater than $10,000,000 for any individual
Acquisition, the Parent shall have delivered to the Administrative Agent
(A) a Pro Forma Compliance Certificate demonstrating that, upon giving
effect to such Acquisition on a Pro Forma Basis, the Loan Parties would
be in compliance with the financial covenants set forth in Section
8.11(a)-(d) as of the most recent fiscal quarter end with respect to
which the Administrative Agent has received the Required Financial
Information and (B) a certificate of a Responsible Officer of the Parent
(1) demonstrating that, upon giving effect to such Acquisition, at least
90% of Consolidated EBITDA for the most recently ended fiscal year
period for each of the Consolidated Parties and the acquired Person or
Property preceding the date of such Acquisition with respect to which
the Administrative
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Agent shall have received the Required Financial Information has been
audited in accordance with GAAP, in the case of the Parent, as required
by Section 7.01(a) and, in the case of the acquired Person or Property,
by independent certified public accountants of recognized national
standing reasonably acceptable to the Administrative Agent (whose
opinion shall not be limited as to the scope or qualified as to going
concern status or any other material qualifications or exceptions) and
(2) to the extent that audited financial information for the acquired
Person or Property is required under the terms of the foregoing clause
(1), certifying that the quarterly financial statements with respect to
the Person or Property acquired for each fiscal quarter period ending
after the date of the last audit and immediately prior to the date of
such Acquisition have been prepared in accordance with GAAP (subject to
audit adjustments and the absence of footnotes) and reviewed by
independent certified public accountants of recognized national standing
reasonably acceptable to the Administrative Agent, (v) the
representations and warranties made by the Loan Parties in any Loan
Document shall be true and correct in all material respects at and as if
made as of the date of such Acquisition (after giving effect thereto)
except to the extent such representations and warranties expressly
relate to an earlier date, (vi) if such transaction involves the
purchase of an interest in a partnership between a Consolidated Party as
a general partner and entities unaffiliated with such Consolidated Party
as the other partners, such transaction shall be effected by having such
equity interest acquired by a corporate holding company directly or
indirectly wholly-owned by a Borrower newly formed for the sole purpose
of effecting such transaction and (vii) the Aggregate Acquisition
Consideration paid by the Consolidated Parties (A) for any individual
Acquisition shall not exceed $15,000,000, if the Consolidated Leverage
Ratio would be greater than 3.00 to 1.0 upon giving effect to any such
Acquisition on a Pro Forma Basis and (B) for all such Acquisitions
occurring after the Closing Date shall not exceed $35,000,000 during any
fiscal year;
(j) Investments consisting of amounts potentially due from a
seller of assets in a Permitted Acquisition that (i) relate to customary
post-closing adjustments with respect to accounts receivable, accounts
payable and similar items typically subject to post-closing adjustments
in similar transactions, and (ii) are outstanding for a period of one
hundred eighty (180) days or less following the closing of such
Permitted Acquisition;
(k) Investments consisting of Capital Stock in Persons who are
not Subsidiaries, so long as any other Investments in such Persons
consist of Investments otherwise permitted by this Agreement;
(l) Investments consisting of advances in respect of the
purchase, repurchase or redemption of the Capital Stock of the Parent in
an aggregate amount not to exceed (i) $5,000,000 in the aggregate during
any four quarter period if the Consolidated Leverage Ratio as of the end
of the fiscal quarter most recently ended prior to the date of the
proposed purchase, repurchase or redemption is greater than 2.75 to 1.0
and (ii) $50,000,000 in the aggregate following the Closing Date; and
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(m) Other Investments of a nature not contemplated in the
foregoing subsections, including loans in connection with purchase money
financing, in an amount not to exceed $15,000,000 in the aggregate at
any time outstanding.
8.03 INDEBTEDNESS.
Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of the Parent and its Subsidiaries set forth in
Schedule 8.03 (and renewals, refinancings and extensions thereof on
terms and conditions no less favorable to such Person than such existing
Indebtedness);
(c) intercompany Indebtedness arising from loans, advances and
Guarantees of the Indebtedness of a Consolidated Party permitted under
Section 8.02;
(d) obligations (contingent or otherwise) of a Consolidated Party
existing or arising under any Swap Contract, provided that (i) such
obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, or
property held or reasonably anticipated by such Person, or changes in
the value of securities issued by such Person, and not for purposes of
speculation or taking a "market view;" and (ii) such Swap Contract does
not contain any provision exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the
defaulting party;
(e) purchase money Indebtedness (including obligations in respect
of Capital Leases, but not including Synthetic Lease Obligations)
hereafter incurred by any Consolidated Party to finance the purchase of
fixed assets, and renewals, refinancings and extensions thereof;
provided that (i) the total of all such Indebtedness for all such
Persons taken together shall not exceed an aggregate principal amount of
$25,000,000 at any one time outstanding; (ii) such Indebtedness when
incurred shall not exceed the purchase price of the asset(s) financed;
and (iii) no such Indebtedness shall be refinanced for a principal
amount in excess of the principal balance outstanding thereon at the
time of such refinancing;
(f) Subordinated Indebtedness;
(g) Indebtedness with respect to financed insurance premiums not
past due; and
(h) other unsecured Indebtedness in an amount not to exceed
$15,000,000.
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8.04 FUNDAMENTAL CHANGES.
Merge, dissolve, liquidate, consolidate with or into another Person, or
Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person; provided, that, notwithstanding the foregoing provisions
of this Section 8.04 but subject to the terms of Sections 7.12 and 7.13, (a) the
Parent may merge or consolidate with any of its Subsidiaries provided that the
Parent shall be the continuing or surviving corporation, (b) any Loan Party
other than the Parent may merge or consolidate with any other Loan Party other
than the Parent, (c) any Consolidated Party which is not a Loan Party may be
merged or consolidated with or into any Loan Party provided that such Loan Party
shall be the continuing or surviving corporation, (d) any Consolidated Party
which is not a Loan Party may be merged or consolidated with or into any other
Consolidated Party which is not a Loan Party, (e) any Subsidiary of the Parent
may merge with any Person that is not a Loan Party in connection with a
Disposition permitted under Section 8.05, (f) any Borrower or any Subsidiary of
the Parent may merge with any Person other than a Consolidated Party in
connection with a Permitted Acquisition; provided, that, if such transaction
involves a Borrower, such Borrower shall be the continuing or surviving
corporation and (g) any Subsidiary of the Parent may dissolve, liquidate or wind
up its affairs at any time provided that such dissolution, liquidation or
winding up, as applicable, would not have a Material Adverse Effect.
8.05 DISPOSITIONS.
Make any Disposition unless (a) the consideration paid in connection
therewith shall be cash or Cash Equivalents and shall be in an amount not less
than the fair market value of the Property disposed of, (b) if such transaction
is a Sale and Leaseback Transaction, such transaction is not prohibited by the
terms of Section 8.15, (c) such transaction does not involve the sale or other
disposition of a minority equity interest in any Consolidated Party, (d) such
transaction does not involve a sale or other disposition of receivables other
than receivables owned by or attributable to other Property concurrently being
disposed of in a transaction otherwise permitted under this Section 8.05, (e)
the aggregate net book value of any individual Real Property asset sold or
otherwise disposed of by the Consolidated Parties in such Disposition shall not
exceed $15,000,000, (f) the aggregate net book value of all of the assets sold
or otherwise disposed of by the Consolidated Parties in all such transactions
during any fiscal year shall not exceed $25,000,000, (g) no later than five (5)
Business Days prior to the consummation of any such Disposition that is in an
amount of $10,000,000 or more, the Parent shall have delivered to the
Administrative Agent (i) a Pro Forma Compliance Certificate demonstrating that,
upon giving effect on a Pro Forma Basis to such transaction, the Loan Parties
would be in compliance with the financial covenants set forth in Section
8.11(a)-(d) as of the most recent fiscal quarter end with respect to which the
Administrative Agent has received the Required Financial Information and (ii) a
certificate of a Responsible Officer of the Parent specifying the anticipated
date of such Disposition, briefly describing the assets to be sold or otherwise
disposed of and setting forth the net book value of such assets, the aggregate
consideration and the Net Cash Proceeds to be received for such assets in
connection with such Disposition and (h) the Loan Parties shall comply with the
terms of Section 2.05(b)(iii). Pending final application of the Net Cash
Proceeds of any Disposition, to the extent required, the Consolidated Parties
may apply such Net Cash Proceeds to temporarily reduce the Revolving Loans or to
make Investments in Cash Equivalents.
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8.06 RESTRICTED PAYMENTS.
Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, other than:
(a) each Subsidiary may make Restricted Payments payable ratably to
holders of its Capital Stock;
(b) the Parent and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the Capital Stock of such
Person;
(c) the Parent may purchase, redeem or otherwise acquire shares of its
Capital Stock by exchange for or out of the proceeds received from a
substantially concurrent issue of shares of its Capital Stock;
(d) provided that no Event of Default has occurred and is continuing,
the Parent may declare and make (i) cash dividends in an amount not to exceed
the greater of $4,000,000 or six percent (6%) of Consolidated Net Income during
any fiscal year and (ii) dividends on the Preferred Stock on the dates and at
the rate set forth in the description of the Preferred Stock contained in
Schedule 1.02; and
(e) provided that no Event of Default has occurred and is continuing,
the Parent may purchase, repurchase or redeem its Capital Stock to the extent
permitted by Section 8.02(l).
8.07 CHANGE IN NATURE OF BUSINESS.
Engage in any material line of business substantially different from
those lines of business conducted by the Parent and its Subsidiaries on the date
hereof or any business substantially related or incidental thereto.
8.08 TRANSACTIONS WITH AFFILIATES AND INSIDERS.
Enter into or permit to exist any transaction or series of transactions
with any officer, director or Affiliate of such Person other than (a) advances
to any Loan Party, (b) transfers of cash and assets to any Loan Party, (c)
intercompany transactions expressly permitted by Section 8.02, Section 8.03,
Section 8.04, Section 8.05 or Section 8.06, (d) normal compensation and
reimbursement of expenses of officers and directors and (e) except as otherwise
specifically limited in this Agreement, other transactions which are entered
into in the ordinary course of such Person's business on terms and conditions
substantially as favorable to such Person as would be obtainable by it in a
comparable arms-length transaction with a Person other than an officer, director
or Affiliate.
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8.09 BURDENSOME AGREEMENTS.
(a) Enter into any Contractual Obligation that encumbers or restricts
the ability of any such Person to (i) pay dividends or make any other
distributions to any Loan Party on such Person's Capital Stock or with respect
to any other interest or participation in, or measured by, its profits, (ii) pay
any Indebtedness or other obligation owed to any Loan Party, (iii) make loans or
advances to any Loan Party, (iv) sell, lease or transfer any of its Property to
any Loan Party or (v) except in respect of any Consolidated Party which is not a
Loan Party, (A) pledge its Property (other than Excluded Property) pursuant to
the Loan Documents or any renewals, refinancings, exchanges, refundings or
extension thereof or (B) act as a Loan Party pursuant to the Loan Documents or
any renewals, refinancings, exchanges, refundings or extension thereof, except
(in respect of any of the matters referred to in clauses (a)(i)-(v) above) for
(1) this Agreement and the other Loan Documents and (2) any document or
instrument governing Indebtedness incurred pursuant to Section 8.03(e), provided
that any such restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith, (3) any Permitted Lien or any
document or instrument governing any Permitted Lien, provided that any such
restriction contained therein relates only to the asset or assets subject to
such Permitted Lien or (4) customary restrictions and conditions contained in
any agreement relating to the sale of any Property permitted under Section 8.05
pending the consummation of such sale.
(b) Enter into any Contractual Obligation that prohibits or otherwise
restricts the existence of any Lien upon any of its Property in favor of the
Administrative Agent (for the benefit of the Lenders) for the purpose of
securing the Obligations, whether now owned or hereafter acquired, or requiring
the grant of any security for any obligation if such Property is given as
security for the Obligations, except (i) any document or instrument governing
Indebtedness incurred pursuant to Section 8.03(e), provided that any such
restriction contained therein relates only to the asset or assets constructed or
acquired in connection therewith, (ii) in connection with any Permitted Lien or
any document or instrument governing any Permitted Lien, provided that any such
restriction contained therein relates only to the asset or assets subject to
such Permitted Lien and (iii) pursuant to customary restrictions and conditions
contained in any agreement relating to the sale of any Property permitted under
Section 8.05, pending the consummation of such sale.
8.10 USE OF PROCEEDS.
Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or
carry margin stock (within the meaning of Regulation U of the FRB) or to extend
credit to others for the purpose of purchasing or carrying margin stock or to
refund indebtedness originally incurred for such purpose.
8.11 FINANCIAL COVENANTS.
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio
as of the end of any fiscal quarter of the Parent to be greater than the ratio
set forth below opposite such fiscal quarter:
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Closing Date through March 31, 2004 3.50 to 1.00
April 1, 2004 through March 31, 2005 3.25 to 1.00
April 1, 2005 and thereafter 3.00 to 1.00
(b) Consolidated Senior Leverage Ratio. Permit the Consolidated Senior
Leverage Ratio as of the end of any fiscal quarter of the Parent to be greater
than the ratio set forth below opposite such fiscal quarter:
Closing Date through September 30, 2004 2.75 to 1.00
October 1, 2004 and thereafter 2.50 to 1.00
(c) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated
Fixed Charge Coverage Ratio as of the end of any fiscal quarter of the Parent to
be less than 1.10 to 1.00.
(d) Consolidated Net Worth. Permit Consolidated Net Worth at any time to
be less than the sum of $359,000,000, increased on a cumulative basis as of the
end of each fiscal quarter of the Parent, commencing with the fiscal quarter
ending March 31, 2003 by an amount equal to the sum of (i) 50% of cumulative
Consolidated Net Income (to the extent positive) for each fiscal quarter ended
subsequent to the Closing Date and (ii) 100% of the Net Cash Proceeds from
Equity Issuances occurring subsequent to the Closing Date .
8.12 PREPAYMENT OF OTHER INDEBTEDNESS, ETC.
Permit any Consolidated Party to (a) amend or modify any of the terms of
any Indebtedness of such Consolidated Party if such amendment or modification
would add or change any terms in a manner materially adverse to such
Consolidated Party, or shorten the final maturity or average life to maturity or
require any payment to be made sooner than originally scheduled or increase the
interest rate applicable thereto, or (b) make (or give any notice with respect
thereto) any voluntary or optional payment or prepayment or redemption or
acquisition for value of (including by way of depositing money or securities
with the trustee with respect thereto before due for the purpose of paying when
due), refund, refinance or exchange of any other Indebtedness of such
Consolidated Party; provided, however, that any Consolidated Party may pay,
prepay, purchase, redeem or otherwise acquire for value any Indebtedness of such
Consolidated Party with the proceeds received from a substantially concurrent
issue of shares of its Capital Stock.
8.13 ORGANIZATION DOCUMENTS; FISCAL YEAR.
Permit any Consolidated Party to (a) amend, modify or change its
Organization Documents in a manner adverse to the Lenders or (b) change its
fiscal year.
8.14 OWNERSHIP OF SUBSIDIARIES.
Notwithstanding any other provisions of this Agreement to the contrary,
permit any Consolidated Party to (i) permit any Subsidiary of the Parent to
issue or have outstanding any
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shares of preferred Capital Stock or (ii) permit, create, incur, assume or
suffer to exist any Lien on any Capital Stock of any Subsidiary of the Parent,
except for Permitted Liens.
8.15 SALE LEASEBACKS.
Except in a transaction permitted by Section 8.03(e), permit any
Consolidated Party to enter into any Sale and Leaseback Transaction.
8.16 CAPITAL EXPENDITURES.
Permit Consolidated Capital Expenditures to exceed $50,000,000 during
any fiscal year if the Consolidated Leverage Ratio as of the end of the prior
fiscal year was greater than 2.75 to 1.00.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
9.01 EVENTS OF DEFAULT.
Any of the following shall constitute an Event of Default:
(a) Non-Payment. The Borrowers or any other Loan Party fails to
pay (i) when and as required to be paid herein, any amount of principal
of any Loan or any L/C Obligation, or (ii) within three days after the
same becomes due, any interest on any Loan or on any L/C Obligation, any
commitment or other fee due hereunder or any other amount payable
hereunder or under any other Loan Document; or
(b) Specific Covenants. The Borrowers fail to perform or observe
any term, covenant or agreement contained in any of Section 7.01, 7.02,
7.03, 7.05, 7.10, 7.11, 7.12 or 7.13 or Article VIII; or
(c) Other Defaults. Any Loan Party fails to perform or observe
any other covenant or agreement (not specified in subsection (a) or (b)
above) contained in any Loan Document on its part to be performed or
observed and such failure continues for 30 days after the earlier of a
Responsible Officer of any Borrower becoming aware of such default or
notice thereof by the Administrative Agent or any Lender; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf
of the Borrowers or any other Loan Party herein, in any other Loan
Document, or in any document delivered in connection herewith or
therewith shall be incorrect or misleading in any material respect when
made or deemed made; or
(e) Cross-Default. (i) Any Borrower or Subsidiary (A) fails to
perform or observe (beyond the applicable grace or cure period with
respect thereto, if any) any Contractual Obligation if such failure
could reasonably be expected to have a Material
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Adverse Effect, (B) fails to make any payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or
otherwise) in respect of any Indebtedness or Guarantee (other than
Indebtedness hereunder and Indebtedness under Swap Contracts) having an
aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined
or syndicated credit arrangement) of more than the Threshold Amount, or
(C) fails to observe or perform any other agreement or condition
relating to any such Indebtedness or Guarantee or contained in any
instrument or agreement evidencing, securing or relating thereto, or any
other event occurs, the effect of which default or other event is to
cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Guarantee (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to be
demanded or to become due or to be repurchased, prepaid, defeased or
redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its
stated maturity, or such Guarantee to become payable or cash collateral
in respect thereof to be demanded; or (ii) there occurs under any Swap
Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to
which a Borrower or any Subsidiary is the Defaulting Party (as defined
in such Swap Contract) or (B) any Termination Event (as so defined)
under such Swap Contract as to which a Borrower or any Subsidiary is an
Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by such Borrower or such Subsidiary as a result
thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
Subsidiaries institutes or consents to the institution of any proceeding
under any Debtor Relief Law, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its property;
or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or
consent of such Person and the appointment continues undischarged or
unstayed for 60 calendar days; or any proceeding under any Debtor Relief
Law relating to any such Person or to all or any material part of its
property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is
entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) Any Borrower or any
Subsidiary becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, or (ii) any writ or
warrant of attachment or execution or similar process in an amount in
excess of the Threshold Amount is issued or levied against all or any
material part of the property of any such Person and is not released,
vacated or fully bonded within 30 days after its issue or levy; or
(h) Judgments. There is entered against any Borrower or any
Subsidiary (i) any one or more final judgments or orders for the payment
of money in an aggregate amount exceeding the Threshold Amount (to the
extent not covered by independent
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third-party insurance as to which the insurer does not dispute
coverage), or (ii) any one or more non-monetary final judgments that
have, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect and, in either case, (A)
enforcement proceedings are commenced by any creditor upon such judgment
or order, or (B) there is a period of 10 consecutive days during which a
stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of a Borrower under Title IV of ERISA to
the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of the Threshold Amount, or (ii) a Borrower or any ERISA
Affiliate fails to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an
aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents; Guarantees. (i) Any Loan
Document, at any time after its execution and delivery and for any
reason other than as expressly permitted hereunder or satisfaction in
full of all the Obligations, ceases to be in full force and effect; or
any Loan Party or any other Person contests in any manner the validity
or enforceability of any Loan Document; or any Loan Party denies that it
has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; or (ii)
except as the result of or in connection with a dissolution, merger or
disposition of a Subsidiary not prohibited by Section 8.04 or Section
8.05, the Guaranty given by any Guarantor hereunder or any provision
thereof shall cease to be in full force and effect, or any Guarantor
hereunder or any Person acting by or on behalf of such Guarantor shall
deny or disaffirm such Guarantor's obligations under its Guaranty, or
any Guarantor shall default in the due performance or observance of any
term, covenant or agreement on its part to be performed or observed
pursuant to its Guaranty; or
(k) Change of Control. There occurs any Change of Control.
9.02 REMEDIES UPON EVENT OF DEFAULT.
If any Event of Default occurs and is continuing, the Administrative
Agent shall, at the request of, or may, with the consent of, the Required
Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligation shall be
terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due
and payable, without presentment,
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demand, protest or other notice of any kind, all of which are hereby
expressly waived by the Borrowers;
(c) require that the Borrowers Cash Collateralize the L/C
Obligations (in an amount equal to the then Outstanding Amount thereof);
and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of an actual or deemed entry
of an order for relief with respect to the Borrowers under the
Bankruptcy Code of the United States, the obligation of each Lender to
make Loans and any obligation of the L/C Issuer to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of
all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable, and the obligation of the
Borrowers to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the
Administrative Agent or any Lender.
9.03 APPLICATION OF FUNDS.
After the acceleration of the Obligations as provided for in Section
9.02(b) (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 9.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and amounts
payable under Article III) payable to the Administrative Agent in its capacity
as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the
Lenders (including Attorney Costs and amounts payable under Article III),
ratably among them in proportion to the amounts described in this clause Second
payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans and L/C Borrowings, ratably among the
Lenders in proportion to the respective amounts described in this clause Third
payable to them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans, L/C Borrowings and Swap Contracts between any
Loan Party and any Lender of Affiliate of any Lender and to Cash Collateralize
the undrawn amounts of Letters of Credit, ratably among the Lenders in
proportion to the respective amounts described in this clause Fourth held by
them;
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrowers or as otherwise required by Law.
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Subject to Section 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above
shall be applied to satisfy drawings under such Letters of Credit as they occur.
If any amount remains on deposit as Cash Collateral after all Letters of Credit
have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above.
ARTICLE X
ADMINISTRATIVE AGENT
10.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably appoints, designates and authorizes
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein and in the other Loan Documents, nor shall the Administrative Agent
have or be deemed to have any fiduciary relationship with any Lender or
participant, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Administrative Agent. Without limiting
the generality of the foregoing sentence, the use of the term "agent" herein and
in the other Loan Documents with reference to the Administrative Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable Law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect only
an administrative relationship between independent contracting parties.
(b) The L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith, and
the L/C Issuer shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Article X with respect to any acts taken or
omissions suffered by the L/C Issuer in connection with Letters of Credit issued
by it or proposed to be issued by it and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in this Article X and in the definition of
"Agent-Related Person" included the L/C Issuer with respect to such acts or
omissions, and (ii) as additionally provided herein with respect to the L/C
Issuer.
10.02 DELEGATION OF DUTIES.
The Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of
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any agent or attorney-in-fact that it selects in the absence of gross negligence
or willful misconduct.
10.03 LIABILITY OF ADMINISTRATIVE AGENT.
No Agent-Related Person shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with this Agreement or
any other Loan Document or the transactions contemplated hereby (except for its
own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to any Lender
or participant for any recital, statement, representation or warranty made by
any Loan Party or any officer thereof, contained herein or in any other Loan
Document, or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of any Loan Party or any other party
to any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender or participant
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party or
any Affiliate thereof.
10.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to any Loan
Party), independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent shall be fully justified in failing or refusing
to take any action under any Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders (or such greater number of Lenders as may be
expressly required hereby in any instance) and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions specified
in Section 5.01, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
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10.05 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default, except with respect to defaults in the payment
of principal, interest and fees required to be paid to the Administrative Agent
for the account of the Lenders, unless the Administrative Agent shall have
received written notice from a Lender or the Parent or a Borrower referring to
this Agreement, describing such Default and stating that such notice is a
"notice of default." The Administrative Agent will notify the Lenders of its
receipt of any such notice. The Administrative Agent shall take such action with
respect to such Default as may be directed by the Required Lenders in accordance
with Article IX; provided, however, that unless and until the Administrative
Agent has received any such direction, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable or in the best interest of
the Lenders.
10.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrowers hereunder. Each Lender also represents that it
will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Parent and the other Loan Parties. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent herein, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any of the Loan Parties or any of
their respective Affiliates which may come into the possession of any
Agent-Related Person.
10.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT.
Whether or not the transactions contemplated hereby are consummated, the
Lenders shall indemnify upon demand each Agent-Related Person (to the extent not
reimbursed by or on
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behalf of any Loan Party and without limiting the obligation of any Loan Party
to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; provided, however,
that no Lender shall be liable for the payment to any Agent-Related Person of
any portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from such Agent-Related Person's own gross negligence or willful misconduct;
provided, however, that no action taken in accordance with the directions of the
Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. Without limitation of the foregoing,
each Lender shall reimburse the Administrative Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs) incurred
by the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent
that the Administrative Agent is not reimbursed for such expenses by or on
behalf of the Borrowers. The undertaking in this Section shall survive
termination of the Aggregate Revolving Commitments, the payment of all other
Obligations and the resignation of the Administrative Agent.
10.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Loan Parties and their respective Affiliates
as though Bank of America were not the Administrative Agent or the L/C Issuer
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Loan Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Loan Party or such Affiliate) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them. With respect
to its Loans, Bank of America shall have the same rights and powers under this
Agreement as any other Lender and may exercise such rights and powers as though
it were not the Administrative Agent or the L/C Issuer, and the terms "Lender"
and "Lenders" include Bank of America in its individual capacity.
10.09 SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may resign as Administrative Agent upon thirty
days' notice to the Lenders; provided that any such resignation shall also
constitute a resignation as L/C Issuer and Swing Line Lender. If the
Administrative Agent resigns under this Agreement, the Required Lenders shall
appoint from among the Lenders a successor administrative agent for the Lenders,
which successor administrative agent shall be consented to by the Borrowers at
all times other than during the existence of an Event of Default (which consent
of the Borrowers shall not be unreasonably withheld or delayed). If no successor
administrative agent is appointed prior to the effective date of the resignation
of the Administrative Agent, the Administrative Agent may appoint, after
consulting with the Lenders and the Borrowers, a successor administrative agent
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from among the Lenders. Upon the acceptance of its appointment as successor
administrative agent hereunder, the Person acting as such successor
administrative agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent, L/C Issuer and Swing Line Lender and the
respective terms "Administrative Agent", "L/C Issuer" and "Swing Line Lender"
shall mean such successor administrative agent, Letter of Credit issuer and
swing line lender, and the retiring Administrative Agent's appointment, powers
and duties as Administrative Agent shall be terminated and the retiring L/C
Issuer's and Swing Line Lender's rights, powers and duties as such shall be
terminated, without any other or further act or deed on the part of such
retiring L/C Issuer or Swing Line Lender or any other Lender, other than the
obligation of the successor L/C Issuer to issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or to make other arrangements satisfactory to the retiring L/C Issuer
to effectively assume the obligations of the retiring L/C Issuer with respect to
such Letters of Credit. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article X and Sections
11.04 and 11.05 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement. If no
successor administrative agent has accepted appointment as Administrative Agent
by the date thirty days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor agent as provided for above.
10.10 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Borrowers) shall be entitled and empowered, by intervention in such
proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Obligations that are owing and unpaid and to
file such other documents as may be necessary or advisable in order to
have the claims of the Lenders and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and
advances of the Lenders and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders and
the Administrative Agent under Sections 2.03(i) and (j), 2.09 and 11.04)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making
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of such payments directly to the Lenders, to pay to the Administrative Agent any
amount due for the reasonable compensation, expenses, disbursements and advances
of the Administrative Agent and its agents and counsel, and any other amounts
due the Administrative Agent under Sections 2.09 and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
10.11 COLLATERAL AND GUARANTY MATTERS.
The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion,
(a) to instruct the Administrative Agent (without notice to or
vote or consent of any Lender, or any affiliate of any Lender that is a
party to any Swap Contract) to release any Lien on any property granted
to or held by the Administrative Agent under any Loan Document (i) upon
termination of the Aggregate Revolving Commitments and payment in full
of all Obligations (other than contingent indemnification obligations
and Obligations in respect of Swap Contracts)) and the expiration or
termination of all Letters of Credit, (ii) that is transferred or to be
transferred as part of or in connection with any Disposition or other
transaction permitted hereunder or under any other Loan Document, or
(iii) subject to Section 11.01, if approved, authorized or ratified in
writing by the Required Lenders;
(b) to subordinate any Lien on any Property granted to or held by
the Administrative Agent under any Loan Document to the holder of any
Lien on such Property that is permitted by Section 8.01(i); and
(c) to release any Guarantor from its obligations under the
Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent's authority to release
or subordinate the Administrative Agent's interest in particular types or items
of Property, or to release any Guarantor from its obligations under the Guaranty
pursuant to this Section 10.11.
10.12 OTHER AGENTS; ARRANGERS AND MANAGERS.
None of the Lenders or other Persons identified on the facing page or
signature pages of this Agreement as a "syndication agent," "documentation
agent," "co-agent," "co-documentation agents", "book manager," "lead manager,"
"arranger," "lead arranger" or "co-arranger" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than,
in the case of such Lenders, those applicable to all Lenders as such. Without
limiting the
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foregoing, none of the Lenders or other Persons so identified shall
have or be deemed to have any fiduciary relationship with any Lender. Each
Lender acknowledges that it has not relied, and will not rely, on any of the
Lenders or other Persons so identified in deciding to enter into this Agreement
or in taking or not taking action hereunder.
ARTICLE XI
MISCELLANEOUS
11.01 AMENDMENTS, ETC.
No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrowers or any other
Loan Party therefrom, shall be effective unless in writing signed by the
Required Lenders and the Borrowers or the applicable Loan Party, as the case may
be, and acknowledged by the Administrative Agent, and each such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that:
(a) unless signed by each Lender directly affected thereby, no
such amendment, waiver or consent shall:
(i) extend or increase the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to Section 9.02) (it
being understood and agreed that a waiver of any condition
precedent set forth in Section 5.02 or of any Default or Event of
Default or mandatory reduction in the Commitments shall not
constitute a change in the terms of any Commitment of any
Lender);
(ii) postpone any date fixed by this Agreement or any
other Loan Document for any payment (excluding mandatory
prepayments) of principal, interest, fees or other amounts due to
the Lenders (or any of them) hereunder or under any other Loan
Document;
(iii) reduce the principal of, or the rate of interest
specified herein on, any Loan or L/C Borrowing, or any fees or
other amounts payable hereunder or under any other Loan Document;
provided, however, that only the consent of the Required Lenders
shall be necessary to (A) amend the definition of "Default Rate"
or to waive any obligation of the Borrowers to pay interest at
the Default Rate or (B) to amend any financial covenant hereunder
(or any defined term used therein) even if the effect of such
amendment would be to reduce the rate of interest on any Loan or
L/C Borrowing or to reduce any fee payable hereunder;
(iv) change any provision of this Agreement regarding pro
rata sharing or pro rata funding with respect to (A) the making
of advances (including participations), (B) the manner of
application of payments or prepayments of principal, interest, or
fees, (C) the manner of application of reimbursement
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obligations from drawings under Letters of Credit, or (D) the
manner of reduction of commitments and committed amounts;
(v) change any provision of this Section 11.01(a) or the
definition of "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to amend,
waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder;
(vi) except as the result of or in connection with a
Disposition not prohibited by Section 8.05, release all or
substantially all of the Collateral; or
(vii) except as the result of or in connection with a
dissolution, merger or disposition of a Loan Party not prohibited
by Section 8.04 or Section 8.05, release the Borrowers or
substantially all of the other Loan Parties from its or their
obligations under the Loan Documents (including, their respective
Obligations under Article IV);
(b) unless also signed by Lenders (other than Defaulting Lenders)
holding in the aggregate at least a majority of the Revolving
Commitments (or if the Revolving Commitments have been terminated, the
outstanding Revolving Loans (and participations in any L/C
Obligations)), no such amendment, waiver or consent shall:
(i) waive any Default or Event of Default for purposes of
Section 5.02,
(ii) amend or waive any mandatory prepayment on the
Revolving Obligations under Section 2.05(b) or the manner of
application thereof to the Revolving Obligations under Section
2.05(b)(vi),
(iii) amend or waive the provisions of Section 5.02
(Conditions to all Credit Extensions), Section 7.12 (Joinder of
Additional Guarantors), Section 7.13 (Pledged Assets), Article
VIII (Negative Covenants), Article IX (Events of Default) or this
Section 11.01(b);
(c) unless also signed by Lenders (other than Defaulting Lenders)
holding in the aggregate at least a majority of the outstanding Tranche
B Term Loan (and participations therein), no such amendment, waiver or
consent shall:
(i) amend or waive any mandatory prepayment on the Tranche
B Term Loan Obligations under Section 2.05(b) or the manner of
application thereof to the Tranche B Term Loan Obligations under
Section 2.05(b)(vi), or
(ii) amend or waive the provisions of this Section
11.01(c) or Section 7.13 (Pledged Assets);
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(d) unless also signed by the L/C Issuer, no such amendment,
waiver or consent shall affect the rights or duties of the L/C Issuer as
such under this Agreement or any Letter of Credit Application relating
to any Letter of Credit issued or to be issued by it;
(e) unless also signed by the Swing Line Lender, no such
amendment, waiver or consent shall affect the rights or duties of the
Swing Line Lender as such under this Agreement;
(f) unless also signed by the Administrative Agent, no such
amendment, waiver or consent shall affect the rights or duties of the
Administrative Agent as such under this Agreement or any other Credit
Document.
Notwithstanding any provision to the contrary contained herein, (i) no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender may not
be increased or extended without the consent of such Lender, (ii) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy or insolvency
reorganization plan that affects the Loans, (iii) each Lender acknowledges that
the provisions of Section 1126(c) of the Bankruptcy Code supersedes the
unanimous consent provisions set forth herein, (iv) the Required Lenders may
consent to allow a Loan Party to use cash collateral in the context of a
bankruptcy or insolvency proceeding and (v) the Fee Letter may be amended, or
rights or privileges thereunder waived, in a writing executed only by the
parties thereto.
11.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including by
facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or (subject to subsection
(c) below) electronic mail address, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if to the Borrowers, the Administrative Agent, the L/C Issuer
or the Swing Line Lender, to the address, facsimile number, electronic
mail address or telephone number specified for such Person on Schedule
11.02 or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a
notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by
such party in a notice to the Borrowers, the Administrative Agent, the
L/C Issuer and the Swing Line Lender.
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All such notices and other communications shall be deemed to be given or
made upon the earlier to occur of (i) actual receipt by the relevant party
hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on
behalf of the relevant party hereto; (B) if delivered by mail, four Business
Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile,
when sent and receipt has been confirmed by telephone; and (D) if delivered by
electronic mail (which form of delivery is subject to the provisions of
subsection (c) below), when delivered; provided, however, that notices and other
communications to any Lender, the Administrative Agent, the L/C Issuer and the
Swing Line Lender pursuant to Article II shall not be effective until actually
received by such Person. In no event shall a voicemail message be effective as a
notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information as provided in Section 7.02, and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Loan Notices and Swing Line Loan Notices) purportedly
given by or on behalf of the Borrowers even if (i) such notices were not made in
a manner specified herein, were incomplete or were not preceded or followed by
any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof. The Borrowers
shall indemnify each Agent-Related Person and each Lender from all losses,
costs, expenses and liabilities resulting from the reliance by such Person on
each notice purportedly given by or on behalf of the Borrowers. All telephonic
notices to and other communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
11.03 NO WAIVER; CUMULATIVE REMEDIES.
No failure by any Lender or the Administrative Agent to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
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11.04 ATTORNEY COSTS, EXPENSES AND TAXES.
The Loan Parties jointly and severally agree (a) to pay or reimburse the
Administrative Agent for all reasonable costs and expenses incurred in
connection with the development, preparation, negotiation and execution of this
Agreement and the other Loan Documents and any amendment, waiver, consent or
other modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all Attorney Costs, and (b) to pay or reimburse the
Administrative Agent and each Lender for all costs and expenses incurred in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or the other Loan Documents (including
all such costs and expenses incurred during any "workout" or restructuring in
respect of the Obligations and during any legal proceeding, including any
proceeding under any Debtor Relief Law), including all Attorney Costs. The
foregoing costs and expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, and other
out-of-pocket expenses incurred by the Administrative Agent and the cost of
independent public accountants and other outside experts retained by the
Administrative Agent or any Lender. All amounts due under this Section 11.04
shall be payable within ten Business Days after demand therefor. The agreements
in this Section shall survive the termination of the Aggregate Revolving
Commitments and repayment of all other Obligations.
11.05 INDEMNIFICATION BY THE BORROWERS.
Whether or not the transactions contemplated hereby are consummated, the
Loan Parties jointly and severally shall indemnify and hold harmless each
Agent-Related Person, each Lender and their respective Affiliates, directors,
officers, employees, counsel, agents, attorneys-in-fact, trustees and advisors
(collectively the "Indemnitees") from and against any and all liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses and disbursements (including Attorney Costs) of any kind
or nature whatsoever which may at any time be imposed on, incurred by or
asserted against any such Indemnitee in any way relating to or arising out of or
in connection with (a) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or instrument
delivered in connection with the transactions contemplated thereby or the
consummation of the transactions contemplated thereby, (b) any Commitment, Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer 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), (c) any actual or
alleged presence or release of Hazardous Materials on or from any property
currently or formerly owned or operated by the Parent, any Subsidiary or any
other Loan Party, or any Environmental Liability related in any way to the
Parent, any Subsidiary or any other Loan Party, or (d) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory (including any investigation
of, preparation for, or defense of any pending or threatened claim,
investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"), in all cases, whether or not caused by or arising, in whole or in
part, out of the negligence of the Indemnitee; provided that such
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indemnity shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee. No Indemnitee
shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement, nor shall
any Indemnitee have any liability for any indirect or consequential damages
relating to this Agreement or any other Loan Document or arising out of its
activities in connection herewith or therewith (whether before or after the
Closing Date). All amounts due under this Section 11.05 shall be payable within
ten Business Days after demand therefor. The agreements in this Section shall
survive the resignation of the Administrative Agent, the replacement of any
Lender, the termination of the Aggregate Revolving Commitments and the
repayment, satisfaction or discharge of all the other Obligations.
11.06 PAYMENTS SET ASIDE.
To the extent that any payment by or on behalf of any Loan Party is made
to the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time to
time in effect.
11.07 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, except that the Borrowers may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section or (iii) by way
of pledge or assignment of a security interest subject to the restrictions of
subsection (f) of this Section (and any other attempted assignment or transfer
by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
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(b) Any Lender may at any time assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans (including for purposes of this
subsection (b), participations in L/C Obligations and in Swing Line Loans) at
the time owing to it); provided that (i) except in the case of an assignment of
the entire remaining amount of the assigning Lender's Commitment and the Loans
at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund (as defined in subsection (g) of this
Section) with respect to a Lender, the aggregate amount of the Commitment (which
for this purpose includes Loans outstanding thereunder) subject to each such
assignment, determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent or, if "Trade Date"
is specified in the Assignment and Assumption, as of the Trade Date, shall not
be less than $5,000,000 ($1,000,000 in the case of Tranche B Term Loans), unless
each of the Administrative Agent and, so long as no Default or Event of Default
has occurred and is continuing, the Parent (on behalf of the Borrowers)
otherwise consents (such consent not to be unreasonably withheld or delayed);
(ii) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender's rights and obligations under this Agreement
with respect to the Loans or the Commitment assigned, except that this clause
(ii) shall not apply to rights in respect of Swing Line Loans; (iii) any
assignment of a Revolving Commitment must be approved by the Administrative
Agent, the L/C Issuer and the Swing Line Lender unless the Person that is the
proposed assignee is itself a Lender (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee); and (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee of $3,500 (which
fee is not payable by the Borrowers, except to the extent specified in Section
11.16); provided, however, that only a single processing fee shall be payable in
the event of simultaneous assignments to Approved Funds of a single Lender.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, 11.04 and 11.05
with respect to facts and circumstances occurring prior to the effective date of
such assignment). Upon request, the Borrowers (at their expense) shall execute
and deliver a Note to the assignee Lender; provided, that any Note of the
assigning Lender is correspondingly modified or replaced. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this subsection 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 subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent
of the Borrowers, shall maintain at the Administrative Agent's Office a copy of
each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the
101
Lenders, and the Commitments of, and principal amounts of the Loans and L/C
Obligations owing to, each Lender pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be conclusive, and the
Borrowers, the Administrative Agent 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 Parent and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, together with the processing
and recordation fee referred to in Section 11.07(b) and any consent to such
assignment required by this Section 11.07, the Administrative Agent shall (i)
promptly accept such Assignment and Assumption and (ii) record the information
contained therein in the Register. No assignment shall be effective for purposes
of this Agreement unless and until such assignment has been recorded in the
Register as provided in this paragraph.
(e) Any Lender may at any time, without the consent of, or notice to,
the Borrowers or the Administrative Agent, sell participations to any Person
(other than a natural person or the Borrowers or any of the Borrowers'
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrowers, the
Administrative Agent 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, waiver or other modification
described in the first proviso to Section 11.01 that directly affects such
Participant. Subject to subsection (e) of this Section, the Borrowers agree that
each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and
3.05 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 11.09
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.13 as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 3.01 or 3.04 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 Borrowers'
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 3.01 unless the Parent
(on behalf of the Borrowers) is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrowers, to
comply with Section 11.15 as though it were a Lender.
102
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its Note,
if any) to secure obligations of such Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(h) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural person) approved by (i) the Administrative Agent, the L/C Issuer
and the Swing Line Lender, and (ii) unless a Default or an Event of
Default has occurred and is continuing, the Parent (on behalf of the
Borrowers) (each such approval not to be unreasonably withheld or
delayed); provided that notwithstanding the foregoing, "Eligible
Assignee" shall not include any of the Borrowers or any of the
Borrowers' Affiliates or Subsidiaries.
"Fund" means any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing
in commercial loans and similar extensions of credit in the ordinary
course of its business.
"Approved Fund" means any Fund that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
(i) Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of America may, (i) upon thirty days' notice to the
Parent and the Lenders, resign as L/C Issuer and/or (ii) upon thirty days'
notice to the Parent, resign as Swing Line Lender. In the event of any such
resignation as L/C Issuer or Swing Line Lender, the Parent (on behalf of the
Borrowers) shall be entitled to appoint from among the Lenders (and with the
consent of such Lender) a successor L/C Issuer or Swing Line Lender hereunder;
provided, however, that no failure by the Parent (on behalf of the Borrowers) to
appoint any such successor shall affect the resignation of Bank of America as
L/C Issuer or Swing Line Lender, as the case may be. If Bank of America resigns
as L/C Issuer, it shall retain all the rights and obligations of the L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Loans or
fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).
If Bank of America resigns as Swing Line Lender, it shall retain all the rights
of the Swing Line Lender provided for hereunder with respect to Swing Line Loans
made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.04(c).
103
11.08 CONFIDENTIALITY.
Each of the Administrative Agent 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 (including as required by law or pursuant
to the tax shelter regulations under Internal Revenue Code sections 6011, 6111
or 6112); (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 the enforcement of rights hereunder; (f) subject to an
agreement containing provisions substantially the same as those of this Section,
to (i) any Eligible Assignee of or Participant in, or any prospective Eligible
Assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any direct or indirect contractual counterparty or prospective
counterparty (or such contractual counterparty's or prospective counterparty's
professional advisor) to any credit derivative transaction relating to
obligations of the Loan Parties; (g) with the consent of the Parent; (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
or any Lender on a nonconfidential basis from a source other than a Consolidated
Party; or (i) to the National Association of Insurance Commissioners or any
other similar organization. In addition, the Administrative Agent and the
Lenders may disclose the existence of this Agreement and information about this
Agreement to market data collectors, similar service providers to the lending
industry, and service providers to the Administrative Agent and the Lenders in
connection with the administration and management of this Agreement, the other
Loan Documents, the Commitments, and the Credit Extensions. For the purposes of
this Section, "Information" means all information received from any Loan Party
relating to any Loan Party or its business, other than any such information that
is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by any Loan Party; provided that, in the case of
information received from a Loan Party after the date hereof, such information
is clearly identified in writing 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.
11.09 SET-OFF.
In addition to any rights and remedies of the Lenders provided by law,
upon the occurrence and during the continuance of any Event of Default, each
Lender is authorized at any time and from time to time, without prior notice to
the Borrowers or any other Loan Party, any such notice being waived by the
Borrowers (on their own behalves and on behalf of each Loan Party) 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 by,
and other indebtedness at any time owing by, such Lender to or for the credit or
the account of the respective Loan Parties
104
against any and all Obligations owing to such Lender hereunder or under any
other Loan Document, now or hereafter existing, irrespective of whether or not
the Administrative Agent or such Lender shall have made demand under this
Agreement or any other Loan Document and although such Obligations may be
contingent or unmatured or denominated in a currency different from that of the
applicable deposit or indebtedness. Each Lender agrees promptly to notify the
Parent and the Administrative Agent after any such set-off and application made
by such Lender; provided, however, that the failure to give such notice shall
not affect the validity of such set-off and application.
11.10 INTEREST RATE LIMITATION.
Notwithstanding anything to the contrary contained in any Loan Document,
the interest paid or agreed to be paid and other loan charges under the Loan
Documents shall not exceed the maximum rate of lawful interest or loan charges,
as the case may be, permitted to be charged by applicable Law (as to each
Lender, such Lender's "Maximum Rate"). If the Administrative Agent or any Lender
shall receive interest and other loan charges in an amount that exceeds the
applicable Maximum Rate, the excess interest and other loan charges shall be
applied to the principal of the Loans or, if it exceeds such unpaid principal,
refunded to the Borrowers. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the
applicable Maximum Rate, such Person may, to the extent permitted by applicable
Law, (a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
11.11 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
11.12 INTEGRATION.
This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements, written or oral, on such
subject matter. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this Agreement
shall control; provided that the inclusion of supplemental rights or remedies in
favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan Document was
drafted with the joint participation of the respective parties thereto and shall
be construed neither against nor in favor of any party, but rather in accordance
with the fair meaning thereof.
11.13 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
All representations, warranties and covenants made hereunder and in any
other Loan Document or other document delivered pursuant hereto or thereto or in
connection herewith or
105
therewith shall survive the execution and delivery hereof and thereof. Such
representations, warranties and covenants have been or will be relied upon by
the Administrative Agent and each Lender, regardless of any investigation made
by the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation (other than
contingent indemnification obligations and Obligations in respect of Swap
Contracts) hereunder shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding.
11.14 SEVERABILITY.
If any provision of this Agreement or the other Loan Documents is held
to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
11.15 TAX FORMS.
(a) (i) Each Lender that is not a "United States person" within the
meaning of Section 7701(a)(30) of the Code (a "Foreign Lender") shall deliver to
the Administrative Agent, prior to receipt of any payment subject to withholding
under the Code (or upon accepting an assignment of an interest herein), two duly
signed completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Foreign Lender and entitling it to an exemption from, or
reduction of, withholding tax on all payments to be made to such Foreign Lender
by the Borrowers pursuant to this Agreement) or IRS Form W-8ECI or any successor
thereto (relating to all payments to be made to such Foreign Lender by the
Borrowers pursuant to this Agreement) or such other evidence satisfactory to the
Parent and the Administrative Agent that such Foreign Lender is entitled to an
exemption from, or reduction of, U.S. withholding tax, including any exemption
pursuant to Section 881(c) of the Code. Thereafter and from time to time, each
such Foreign Lender shall (A) promptly submit to the Administrative Agent such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to the
Parent and the Administrative Agent of any available exemption from or reduction
of, United States withholding taxes in respect of all payments to be made to
such Foreign Lender by the Borrowers pursuant to this Agreement, (B) promptly
notify the Administrative Agent of any change in circumstances which would
modify or render invalid any claimed exemption or reduction, and (C) take such
steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable
Laws that the Borrowers make any deduction or withholding for taxes from amounts
payable to such Foreign Lender.
106
(ii) Each Foreign Lender, to the extent it does not act or ceases
to act for its own account with respect to any portion of any sums paid
or payable to such Lender under any of the Loan Documents (for example,
in the case of a typical participation by such Lender), shall deliver to
the Administrative Agent on the date when such Foreign Lender ceases to
act for its own account with respect to any portion of any such sums
paid or payable, and at such other times as may be necessary in the
determination of the Administrative Agent (in the reasonable exercise of
its discretion), (A) two duly signed completed copies of the forms or
statements required to be provided by such Lender as set forth above, to
establish the portion of any such sums paid or payable with respect to
which such Lender acts for its own account that is not subject to U.S.
withholding tax, and (B) two duly signed completed copies of IRS Form
W-8IMY (or any successor thereto), together with any information such
Lender chooses to transmit with such form, and any other certificate or
statement of exemption required under the Code, to establish that such
Lender is not acting for its own account with respect to a portion of
any such sums payable to such Lender.
(iii) Notwithstanding Section 3.01 or any other provision of
this Agreement to the contrary, neither the Borrowers nor any other Loan
Party shall be required to pay any additional amount to any Foreign
Lender under Section 3.01 (A) with respect to any Taxes required to be
deducted or withheld on the basis of the information, certificates or
statements of exemption such Lender transmits with an IRS Form W-8IMY
pursuant to this Section 11.15(a) or (B) if such Lender shall have
failed to satisfy the foregoing provisions of this Section 11.15(a);
provided that if such Lender shall have satisfied the requirement of
this Section 11.15(a) on the date such Lender became a Lender or ceased
to act for its own account with respect to any payment under any of the
Loan Documents, nothing in this Section 11.15(a) shall relieve the
Borrowers of their obligation to pay any amounts pursuant to Section
3.01 in the event that, as a result of any change in any applicable law,
treaty or governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such Lender is no
longer properly entitled to deliver forms, certificates or other
evidence at a subsequent date establishing the fact that such Lender or
other Person for the account of which such Lender receives any sums
payable under any of the Loan Documents is not subject to withholding or
is subject to withholding at a reduced rate.
(iv) The Administrative Agent may, without reduction, withhold
any Taxes required to be deducted and withheld from any payment under
any of the Loan Documents with respect to which the Borrowers are not
required to pay additional amounts under this Section 11.15(a).
(b) Upon the request of the Administrative Agent, each Lender that is a
"United States person" within the meaning of Section 7701(a)(30) of the Code
shall deliver to the Administrative Agent two duly signed completed copies of
IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the Code,
without reduction.
107
(c) If any Governmental Authority asserts that the Administrative Agent
did not properly withhold or backup withhold, as the case may be, any tax or
other amount from payments made to or for the account of any Lender, such Lender
shall indemnify the Administrative Agent and the Loan Parties therefor,
including all penalties and interest, any taxes imposed by any jurisdiction on
the amounts payable to the Administrative Agent under this Section, and costs
and expenses (including Attorney Costs) of the Administrative Agent and the Loan
Parties, except to the extent of the Administrative Agent's gross negligence or
willful misconduct in connection therewith. The obligation of the Lenders under
this Section shall survive the termination of the Aggregate Revolving
Commitments, repayment of all other Obligations hereunder and the resignation of
the Administrative Agent.
11.16 REPLACEMENT OF LENDERS.
Under any circumstances set forth herein providing that the Borrowers
shall have the right to replace a Lender as a party to this Agreement, the
Parent (on behalf of the Borrowers) may, upon notice to such Lender and the
Administrative Agent, replace such Lender by causing such Lender to assign its
Commitment and outstanding Loans (with the assignment fee to be paid by the
Borrowers in such instance) pursuant to Section 11.07(b) to one or more other
Lenders or Eligible Assignees procured by the Parent. The Borrowers shall (x)
pay in full all principal, interest, fees and other amounts owing to such Lender
through the date of replacement (including any amounts payable pursuant to
Section 3.05 and any processing and recordation fee payable pursuant to Section
11.07(b)), (y) provide appropriate assurances and indemnities (which may include
letters of credit) to the L/C Issuer and the Swing Line Lender as each may
reasonably require with respect to any continuing obligation to fund
participation interests in any L/C Obligations or any Swing Line Loans then
outstanding, and (z) release such Lender from its obligations under the Loan
Documents. Any Lender being replaced shall execute and deliver an Assignment and
Assumption with respect to such Lender's Commitment and outstanding Loans and
participations in L/C Obligations and Swing Line Loans.
11.17 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND
EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER
108
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
THE LAW OF SUCH STATE.
11.18 WAIVER OF RIGHT TO TRIAL BY JURY.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL
BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
109
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BORROWERS: CENTRAL PARKING CORPORATION,
a Tennessee corporation
By: __________________________
Name: ______________________
Title: ______________________
CENTRAL PARKING SYSTEM, INC.,
a Tennessee corporation
ALLRIGHT CORPORATION,
a Delaware corporation
▇▇▇▇▇▇ SYSTEM, INC.,
a Delaware corporation
CPS FINANCE, INC.,
a Delaware corporation
CENTRAL PARKING SYSTEM OF TENNESSEE, INC.,
a Tennessee corporation
By: __________________________
Name: ______________________
Title: ______________________
GUARANTORS: CENTRAL PARKING SYSTEM OF NEW YORK, INC.,
a Tennessee corporation
▇▇▇▇▇▇ PARKING SYSTEM, INC.,
a New York corporation
CENTRAL PARKING SYSTEM OF PENNSYLVANIA,
INC., a Tennessee corporation
CENTRAL PARKING SYSTEM OF VIRGINIA, INC.
(F/K/A DIPLOMAT PARKING
CORP.), a DC corporation
CENTRAL PARKING SYSTEM OF TEXAS, INC.,
a Texas corporation
CENTRAL PARKING SYSTEM OF OHIO, INC.,
a Tennessee corporation
CENTRAL PARKING SYSTEM OF FLORIDA, INC.,
a Tennessee corporation
ALLRIGHT NEW YORK PARKING, INC.,
a New York corporation
CENTRAL PARKING SYSTEM OF NEW JERSEY, INC.,
a New Jersey corporation
ALLRIGHT PARKING MANAGEMENT, INC.,
a Delaware corporation
CENTRAL PARKING SYSTEM OF GEORGIA, INC.,
a Tennessee corporation
USA PARKING SYSTEM, INC. (F/K/A ▇▇▇▇▇▇, INC.),
a Tennessee corporation
CENTRAL PARKING SYSTEM OF LOUISIANA, INC.,
a Tennessee corporation
CENTRAL PARKING SYSTEM OF MARYLAND, INC.,
a Tennessee corporation
CENTRAL PARKING SYSTEM REALTY OF NEW YORK,
INC., a Tennessee corporation
CENTRAL PARKING SYSTEM OF WASHINGTON, INC.,
a Tennessee corporation
CENTRAL PARKING SYSTEM OF MISSOURI, INC.
(F/K/A CPS-ST. LOUIS, INC.),
a Tennessee corporation
CENTRAL PARKING SYSTEM OF WISCONSIN, INC.,
a Tennessee corporation
By:
Name: __________________
Title: __________________
of each of the foregoing Guarantors
[signature pages continue]
BANK OF AMERICA, N.A., as
Administrative Agent
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
BANK OF AMERICA, N.A., as a Lender,
L/C Issuer and Swing Line Lender
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
FLEET NATIONAL BANK
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
JPMORGAN CHASE BANK
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
SUNTRUST BANK
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
U.S. BANK
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
BARCLAYS BANK PLC
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
WASHINGTON MUTUAL BANK
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
COMERICA BANK
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
AMSOUTH BANK
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
COMPASS BANK
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
THE FOOTHILL GROUP, INC.
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
COMMERZBANK AG,
NEW YORK AND GRAND CAYMAN BRANCHES
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PRIME INCOME TRUST
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
KZH ING-2 LLC
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
KZH CYPRESSTREE-1 LLC
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
KZH STERLING LLC
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
KZH CNC LLC
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
KZH CRESCENT LLC
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
KZH CRESCENT-2 LLC
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
KZH CRESCENT-3 LLC
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
KZH SOLEIL-2 LLC
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
KZH SOLEIL LLC
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
KZH RIVERSIDE LLC
By:
-------------------------------------
Name:
------------------------------------
Title:
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PINEHURST TRADING, INC.
By:
-------------------------------------
Name:
------------------------------------
Title:
-----------------------------------