EXHIBIT 10.1
CREDIT AGREEMENT
DATED AS OF MAY 6, 2003
AMONG
AMPHENOL CORPORATION,
AS BORROWER,
THE LENDERS LISTED HEREIN,
AS LENDERS,
FLEET NATIONAL BANK AND ROYAL BANK OF CANADA,
AS CO-DOCUMENTATION AGENTS,
UBS WARBURG LLC,
AS SYNDICATION AGENT,
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT.
----------
DEUTSCHE BANK SECURITIES INC.
AND
UBS WARBURG LLC,
AS JOINT LEAD ARRANGERS
AMPHENOL CORPORATION
CREDIT AGREEMENT
TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS.........................................................1
1.1 Certain Defined Terms....................................................1
1.2 Accounting Terms; Utilization of GAAP for Purposes Mitigate
of Calculations Under Agreement....................................33
1.3 Other Definitional Provisions and Rules of Construction.................33
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS.........................33
2.1 Commitments; Making of Loans; the Register; Notes.......................33
2.2 Interest On the Loans...................................................41
2.3 Fees....................................................................44
2.4 Repayments, Prepayments and Reductions in Revolving
Loan Commitments; General Provisions Regarding
Payments; Application of Proceeds of Collateral
and Payments Under the Guaranties..................................45
2.5 Use of Proceeds.........................................................53
2.6 Special Provisions Governing LIBOR Loans................................53
2.7 Increased Costs; Capital Adequacy.......................................55
2.8 Notice of Certain Costs; Obligation of Lenders and
Issuing Lenders to Mitigate........................................59
2.9 Defaulting Lenders......................................................60
2.10 Removal or Replacement of a Lender.....................................61
SECTION 3. LETTERS OF CREDIT..................................................63
3.1 Issuance of Letters of Credit and Lenders' Purchase
of Participations Therein..........................................63
3.2 Letter of Credit Fees...................................................67
3.3 Drawings and Reimbursement of Amounts Paid Under
Letters of Credit..................................................67
3.4 Obligations Absolute....................................................70
3.5 Indemnification; Nature of Issuing Lenders' Duties......................71
3.6 Increased Costs and Taxes Relating to Letters of Credit.................72
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT..........................73
4.1 Conditions to Effectiveness of Amendment and Restatement................73
4.2 Conditions to All Loans.................................................77
4.3 Conditions to Letters of Credit.........................................77
SECTION 5. COMPANY'S REPRESENTATIONS AND WARRANTIES...........................78
5.1 Organization, Powers, Qualification, Good Standing,
Business and Subsidiaries..........................................78
5.2 Authorization of Borrowing, Etc.........................................79
5.3 Financial Condition.....................................................79
5.4 No Material Adverse Effect..............................................80
(i)
TABLE OF CONTENTS
(continued)
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5.5 Title to Properties; Liens..............................................80
5.6 Litigation; Adverse Facts...............................................80
5.7 Payment of Taxes........................................................80
5.8 Governmental Regulation.................................................81
5.9 Employee Benefit Plans..................................................81
5.10 Environmental Protection...............................................81
5.11 Disclosure.............................................................82
SECTION 6. AFFIRMATIVE COVENANTS..............................................82
6.1 Financial Statements and Other Reports..................................83
6.2 Corporate Existence, Etc................................................87
6.3 Payment of Taxes and Claims; Tax Consolidation..........................87
6.4 Maintenance of Properties; Insurance....................................87
6.5 Inspection Rights; Lender Meeting.......................................88
6.6 Compliance With Laws, Etc...............................................88
6.7 Execution of Subsidiary Guaranty by Future Domestic
Subsidiaries; Pledge of Stock of Future Direct
Subsidiaries; Ratable Credit Support...............................88
6.8 Springing Lien..........................................................89
6.9 Redemption of Existing Subordinated Notes...............................90
6.10 Transactions With Affiliates...........................................90
6.11 Conduct of Business....................................................90
6.12 Fiscal Year............................................................90
6.13 Interest Rate Protection...............................................90
SECTION 7. NEGATIVE COVENANTS.................................................91
7.1 Indebtedness............................................................91
7.2 Liens and Related Matters...............................................92
7.3 Investments; Joint Ventures.............................................93
7.4 Guarantee Obligations...................................................94
7.5 Restricted Junior Payments..............................................95
7.6 Financial Covenants.....................................................96
7.7 Restriction On Certain Fundamental Changes; Asset ......................96
Sales and Acquisitions.............................................98
7.8 Consolidated Capital Expenditures.......................................99
7.9 Amendments of Certain Documents.........................................99
SECTION 8. EVENTS OF DEFAULT.................................................100
8.1 Failure to Make Payments When Due......................................100
8.2 Default in Other Agreements............................................100
8.3 Breach of Certain Covenants............................................100
8.4 Breach of Warranty.....................................................100
8.5 Other Defaults Under Loan Documents....................................100
8.6 Involuntary Bankruptcy; Appointment of Receiver, Etc...................101
8.7 Voluntary Bankruptcy; Appointment of Receiver, Etc.....................101
8.8 Judgments and Attachments..............................................101
(ii)
TABLE OF CONTENTS
(continued)
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8.9 ERISA..................................................................102
8.10 Change of Control.....................................................102
8.11 Material Invalidity of Guaranties; Material Failure ..................102
of Security; Repudiation of Obligations...........................102
SECTION 9. AGENTS 103
9.1 Appointment of Administrative Agent....................................103
9.2 Powers and Duties; General Immunity....................................104
9.3 Representations and Warranties; No Responsibility .....................104
for Appraisal of Creditworthiness.................................105
9.4 Right to Indemnity.....................................................105
9.5 Successor Agents and Swing Line Lender.................................106
9.6 Collateral Documents and Guaranties....................................107
SECTION 10. MISCELLANEOUS....................................................107
10.1 Assignments and Participations in Loans and Letters of Credit.........107
10.2 Expenses..............................................................111
10.3 Indemnity.............................................................111
10.4 Set-off...............................................................112
10.5 Ratable Sharing.......................................................113
10.6 Amendments and Waivers................................................113
10.7 Notices...............................................................115
10.8 Survival of Representations, Warranties and Agreements................115
10.9 Failure or Indulgence Not Waiver; Remedies Cumulative.................115
10.10 Marshalling; Payments Set Aside......................................115
10.11 Severability.........................................................116
10.12 Obligations Several; Independent Nature of Lenders' Rights...........116
10.13 Headings.............................................................116
10.14 Applicable Law.......................................................116
10.15 Successors and Assigns...............................................116
10.16 Consent to Jurisdiction and Service of Process.......................117
10.17 Waiver of Jury Trial.................................................117
10.18 Confidentiality......................................................118
10.19 Counterparts; Effectiveness..........................................118
Signature pages..............................................................S-1
(iii)
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NOTICE OF REQUEST FOR ISSUANCE OF LETTER OF CREDIT
IV FORM OF TRANCHE A TERM NOTE
V FORM OF TRANCHE B TERM NOTE
VI FORM OF REVOLVING NOTE
VII FORM OF SWING LINE NOTE
VIII FORM OF COMPLIANCE CERTIFICATE
IX FORM OF OPINION OF COMPANY'S COUNSEL
X FORM OF OPINION OF O'MELVENY & ▇▇▇▇▇ LLP
XI FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
XII FORM OF CERTIFICATE RE NON-BANK STATUS
XIII FORM OF FINANCIAL CONDITION CERTIFICATE
XIV FORM OF MASTER PLEDGE AGREEMENT
XV FORM OF SUBSIDIARY GUARANTY
XVI FORM OF LLC PLEDGE AGREEMENT
(iv)
SCHEDULES
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
3.1C EXISTING LETTERS OF CREDIT
4.1B CORPORATE STRUCTURE, CAPITAL STRUCTURE AND OWNERSHIP
5.1 SUBSIDIARIES OF COMPANY
5.6 LITIGATION
7.1 CERTAIN EXISTING INDEBTEDNESS
7.3 CERTAIN EXISTING INVESTMENTS
7.4 CERTAIN EXISTING GUARANTEE OBLIGATIONS
(v)
CREDIT AGREEMENT
This
CREDIT AGREEMENT is dated as of May 6, 2003 and entered into
by and among AMPHENOL CORPORATION, a Delaware corporation ("COMPANY"), THE
FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (each individually
referred to herein as a "LENDER" and collectively as "LENDERS"), FLEET NATIONAL
BANK AND ROYAL BANK OF CANADA, as Co-Documentation Agents (collectively, in such
capacity, "CO-DOCUMENTATION AGENTS"), UBS WARBURG LLC ("UBSW"), as syndication
agent (in such capacity, "SYNDICATION Agent"), and DEUTSCHE BANK TRUST COMPANY
AMERICAS ("DB"), as administrative agent for Lenders (in such capacity,
"ADMINISTRATIVE AGENT") and as the collateral agent for Lenders.
R E C I T A L S
WHEREAS, Lenders at the request of Company, have agreed to extend
certain credit facilities to Company, the proceeds of which will be used to (i)
fund that portion of Financing Requirements (this and other capitalized terms
used in these recitals without definition being used as defined in subsection
1.1) required to be funded on the Closing Date, (ii) fund the repurchase of
Existing Subordinated Notes, and (iii) provide financing for working capital,
capital expenditures and other general corporate purposes of Company and its
Subsidiaries;
WHEREAS, Company desires to secure all of the Obligations
hereunder and under the other Loan Documents by granting to Collateral Agent, on
behalf of Lenders, a first priority pledge of (i) 100% of the capital stock of
each of its direct Domestic Subsidiaries and (ii) 65% of the capital stock of
each of its direct Material Foreign Subsidiaries;
WHEREAS, all Domestic Subsidiaries of Company have agreed to
guarantee the Obligations hereunder and under the other Loan Documents;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Company, Lenders,
Co-Documentation Agents, Syndication Agent, Administrative Agent and Collateral
Agent agree as follows:
SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the
following meanings:
"ACCOUNTS RECEIVABLE FACILITY" means the Existing A/R Facility
and any successor, replacement or additional accounts receivable financing
program entered into by
Company and/or any of its Subsidiaries on terms customary for accounts
receivable financings; PROVIDED, in each case, that there is no recourse
thereunder against Company or any of its Subsidiaries for any default by any
account obligor in the payment of its obligations in connection with the
accounts receivable subject to such program, except to the extent that such
recourse is limited substantially to the same extent as under the Existing A/R
Facility as in effect on the Closing Date; and PROVIDED, FURTHER, that any
accounts receivable financing program shall cease to constitute an "Accounts
Receivable Facility" in the event the attributes described in the foregoing
proviso cease to exist with regard to such program.
"ACCOUNTS RECEIVABLE FACILITY AMOUNT" means, at any time, the
principal component of financing then outstanding under any Accounts Receivable
Facility.
"ACQUISITION" means the acquisition by Company or any of its
Subsidiaries (by purchase or otherwise) of all or substantially all of the
business, property or fixed assets of, or the stock or other evidence of
beneficial ownership of, any Person or any division, business unit or line of
business of any Person.
"ADMINISTRATIVE AGENT" has the meaning assigned to that term in
the introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 9.5A.
"AFFECTED LENDER" has the meaning assigned to that term in
subsection 2.6C.
"AFFILIATE", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to (i) vote 10% or more of the Voting Stock of such
Person or (ii) direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting securities or by contract
or otherwise.
"AGENTS" means Administrative Agent, Co-Documentation Agents,
Syndication Agent, and Collateral Agent.
"AGREEMENT" means this
Credit Agreement dated as of May 6, 2003,
as it may be amended, supplemented or otherwise modified from time to time.
"APPLICABLE COMMITMENT FEE PERCENTAGE" means, with respect to any
date of determination, a rate per annum equal to the percentage set forth below
opposite the Applicable Leverage Ratio in effect as of such date of
determination, any change in the Applicable Commitment Fee Percentage to be
effective on the date of any corresponding change in the Applicable Leverage
Ratio:
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Applicable Leverage Ratio Applicable Commitment Fee Percentage
------------------------- ------------------------------------
2.00:1.00 or greater 0.50%
less than 2.00:1.00 0.375%
"APPLICABLE LEVERAGE RATIO" means, with respect to any date of
determination, the Consolidated Leverage Ratio set forth in the Pricing
Certificate (as defined below) in effect for the Pricing Period (as defined
below) in which such date of determination occurs. For purposes of this
definition, (i) "PRICING CERTIFICATE" means an Officer's Certificate of Company
certifying as to the Consolidated Leverage Ratio as of the last day of any
Fiscal Quarter and setting forth the calculation of such Consolidated Leverage
Ratio in reasonable detail, which Officer's Certificate may be delivered to
Administrative Agent at any time on or after the date of delivery by Company of
the Compliance Certificate (the "RELATED COMPLIANCE CERTIFICATE") with respect
to the period ending on the last day of such Fiscal Quarter pursuant to
subsection 6.1(iii), and (ii) "PRICING PERIOD" means each period commencing on
the first Business Day after the delivery to Administrative Agent of a Pricing
Certificate and ending on the first Business Day after the next Pricing
Certificate is delivered to Administrative Agent; PROVIDED that, anything
contained in this definition to the contrary notwithstanding, (a) the Pricing
Certificate in respect of the first Pricing Period may be delivered at any time
on or after the Closing Date and shall relate to the most recent financial
statements delivered by Company to Administrative Agent pursuant to subsection
6.1(i), and (b) in the event that, after the commencement of the first Pricing
Period, (X) Company fails to deliver a Pricing Certificate to Administrative
Agent setting forth the Consolidated Leverage Ratio as of the last day of any
Fiscal Quarter on or before the last day (the "CUTOFF DATE") on which Company is
required to deliver the Related Compliance Certificate and (Y) Administrative
Agent determines (each such determination being an "AGENT DETERMINATION") on or
after the Cutoff Date (on the basis of the Related Compliance Certificate or a
Pricing Certificate delivered after the Cutoff Date) that the Applicable
Leverage Ratio that would have been in effect if Company had delivered a Pricing
Certificate on the Cutoff Date is greater than the Consolidated Leverage Ratio
set forth in the most recent Pricing Certificate actually delivered by Company,
then (1) the Applicable Leverage Ratio in effect for the period from the Cutoff
Date to the date of delivery by Company of the next Pricing Certificate (or, if
earlier, the next date on which an Agent Determination is made) shall be the
Consolidated Leverage Ratio determined pursuant to the Agent Determination and
(2) on the first Business Day after Administrative Agent delivers written notice
to Company of any Agent Determination, Company shall pay to Administrative
Agent, for distribution (as appropriate) to Lenders, an aggregate amount equal
to the additional interest, letter of credit fees and commitment fees Company
would have been required to pay in respect of all Loans, Letters of Credit or
Commitments in respect of which any interest or fees have been paid by Company
during the period from the Cutoff Date to the date such notice is given by
Administrative Agent to Company if the amount of such interest and fees had been
calculated using the Applicable Leverage Ratio based on such Agent
Determination.
"APPLICABLE TRANCHE A BASE RATE MARGIN" means with respect to any
date of determination, a rate per annum equal to the percentage set forth below
opposite the
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Applicable Leverage Ratio in effect as of such date of determination, any change
in any such Applicable Tranche A Base Rate Margin to be effective on the date of
any corresponding change in the Applicable Leverage Ratio:
Applicable Leverage Ratio Applicable Tranche a Base Rate Margin
------------------------- -------------------------------------
2.50:1.00 or greater 1.00%
2.00:1.00 or greater, but
less than 2.50:1.00 0.75%
less than 2.00:1.00 0.50%
; PROVIDED that for the period from the Closing Date to but excluding the date
of commencement of the first Pricing Period, the Applicable Tranche A Base Rate
Margin shall be 1.00% per annum.
"APPLICABLE TRANCHE A LIBOR MARGIN" means with respect to any
date of determination, a rate per annum equal to the percentage set forth below
opposite the Applicable Leverage Ratio in effect as of such date of
determination, any change in any such Applicable Tranche A LIBOR Margin to be
effective on the date of any corresponding change in the Applicable Leverage
Ratio:
Applicable Leverage Ratio Applicable Tranche a Libor Margin
------------------------- ---------------------------------
2.50:1.00 or greater 2.00%
2.00:1.00 or greater, but
less than 2.50:1.00 1.75%
less than 2.00:1.00 1.50%
; PROVIDED that for the period from the Closing Date to but excluding the date
of commencement of the first Pricing Period, the Applicable Tranche A LIBOR
Margin shall be 2.00% per annum.
"APPLICABLE TRANCHE B BASE RATE MARGIN" means with respect to any
date of determination, a rate per annum equal to 1.50%.
"APPLICABLE TRANCHE B LIBOR MARGIN" means with respect to any
date of determination, a rate per annum equal to 2.50%.
"ASSET SALE" means the sale by Company or any of its Subsidiaries
to any Third Party of (i) any of the stock or other ownership interests of any
of Company's Subsidiaries, (ii) substantially all of the assets of any division
or line of business of Company or any of its Subsidiaries, or (iii) any other
assets (whether tangible or intangible) of Company or any of its Subsidiaries
outside of the ordinary course of business (other than (a) accounts receivable
sold pursuant to any Accounts Receivable Facility or sold in
4
accordance with subsection 7.7(iii) and (b) any other such assets to the extent
that the aggregate value of such assets sold in any single transaction or
related series of transactions is equal to $500,000 or less).
"ASSIGNMENT AGREEMENT" means an Assignment and Assumption
Agreement in substantially the form of EXHIBIT XI annexed hereto.
"AVAILABLE AMOUNT" means, as of any date of determination, an
amount equal to (i) the aggregate amount of net cash proceeds received by
Company after the Closing Date in respect of any equity contributions made to
Company by, or any issuances of equity Securities by Company to, any Third Party
other than an Unrestricted Subsidiary (other than proceeds from purchases of
capital stock of Company to the extent such purchases are financed with the
proceeds of Investments permitted under subsection 7.3(ii)) PLUS (ii) the
aggregate amount of Retained Excess Cash Flow (as defined in subsection
2.4B(iii)(b)) as of such date PLUS (iii) the aggregate amount of Retained
Prepayments (as defined in subsection 2.4B(iv)(c)) as of such date MINUS (iv)
any proceeds received by Company from the issuance of new shares of its common
stock to the extent such proceeds are used as provided in subsection 7.5(ii)(b).
"AVAILABLE AMOUNT USAGE" means, as of any date of determination,
an amount equal to the sum of (i) the aggregate amount of Investments made
pursuant to subsection 7.3(vi)(b) as of such date plus (ii) the aggregate amount
of Restricted Junior Payments made pursuant to subsection 7.5(ii)(d) as of such
date.
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any successor statute.
"BASE RATE" means, at any time, the higher of (x) the Prime Rate
or (y) the rate which is 1/2 of 1% in excess of the Federal Funds Effective
Rate. Any change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective on the date of such change.
"BASE RATE LOANS" means Loans bearing interest at rates
determined by reference to the Base Rate as provided in subsection 2.2A.
"BUSINESS DAY" means, for all purposes other than as covered by
clause (ii) below, (i) any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of the State of
New York or is a day on which
banking institutions located in such state are authorized or required by law or
other governmental action to close and, (ii) with respect to all notices,
determinations, fundings and payments in connection with LIBOR or any LIBOR
Loans, any day that is a Business Day described in clause (i) above and that is
also a day for trading by and between banks in Dollar deposits, in the London
interbank market.
"CAPITAL LEASE", as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"CASH" means money, currency or a credit balance in a Deposit
Account.
5
"CASH EQUIVALENTS" means (i) marketable securities (a) issued or
directly and unconditionally guaranteed as to interest and principal by the
United States Government or (b) issued by any agency of the United States the
obligations of which are backed by the full faith and credit of the United
States, in each case maturing within 24 months after the date of acquisition
thereof; (ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within 24 months after the date
of acquisition thereof and having, at the time of the acquisition thereof, an
investment grade rating generally obtainable from either S&P or ▇▇▇▇▇'▇; (iii)
commercial paper maturing no more than 12 months from the date of creation
thereof and having, at the time of the acquisition thereof, a rating of at least
A-2 from S&P or at least P-2 from ▇▇▇▇▇'▇; (iv) domestic and Eurodollar
certificates of deposit or bankers' acceptances maturing within 24 months after
the date of acquisition thereof and issued or accepted by any Lender or by any
other commercial bank that has combined capital and surplus of not less than
$250,000,000; (v) repurchase agreements with a term of not more than 30 days for
underlying securities of the types described in clauses (i), (ii) and (iv) above
entered into with any commercial bank meeting the requirements specified in
clause (iv) above or with any securities dealer of recognized national standing,
(vi) shares of investment companies that are registered under the Investment
Company Act of 1940 and that invest solely in one or more of the types of
investments referred to in clauses (i) through (v) above, and (vii) in the case
of any Foreign Subsidiary, high quality, short-term liquid Investments made by
such Foreign Subsidiary in the ordinary course of managing its surplus cash
position in a manner consistent with past practices.
"CERTIFICATE RE NON-BANK STATUS" means a certificate
substantially in the form of EXHIBIT XII annexed hereto delivered by a Lender to
Administrative Agent pursuant to subsection 2.7B(iii).
"CHANGE OF CONTROL" means, and shall be deemed to have occurred,
if: (i)(a) KKR, its Affiliates and the Management Group shall at any time not
own, in the aggregate, directly or indirectly, beneficially and of record, at
least 35% of the outstanding Voting Stock of Company (other than as the result
of one or more widely distributed offerings of common stock of Company, in each
case whether by Company or by KKR, its Affiliates or the Management Group)
and/or (b) any person, entity or "group" (within the meaning of Section 13(d) or
14(d) of the Exchange Act) shall at any time have acquired direct or indirect
beneficial ownership of a percentage of the outstanding Voting Stock of Company
that exceeds the percentage of such Voting Stock then beneficially owned, in the
aggregate, by KKR, its Affiliates and the Management Group, UNLESS, in the case
of either clause (a) or (b) above, KKR, its Affiliates and the Management Group
shall, at the relevant time, have the collective right or ability, either by
contract or pursuant to a written proxy or other written evidence of voting
power, to elect or designate for election a majority of the Board of Directors
of Company; and/or (ii) at any time Continuing Directors shall not constitute a
majority of the Board of Directors of Company. For purposes of this definition,
"CONTINUING DIRECTOR" means, as of any date of determination, an individual (A)
who is a member of the Board of Directors of Company on the Closing Date, (B)
who, as of such date of determination, has been a member of such Board of
Directors for at least the 12 preceding months (or, if such date of
determination occurs during the period comprising the first 12 months after the
Closing Date, since the Closing Date), or (C) who has been nominated to be
6
a member of such Board of Directors, directly or indirectly, by KKR or Persons
nominated by KKR or who has been nominated to be a member of such Board of
Directors by a majority of the other Continuing Directors then in office.
"CLASS" means, as applied to Lenders, each of the following three
classes of Lenders: (i) Lenders having Revolving Loan Exposure, (ii) Lenders
having Tranche A Term Loan Exposure, and (iii) Lenders having Tranche B Term
Loan Exposure.
"CLOSING DATE" means May 6, 2003, the date on which the initial
Loans are made.
"CO-DOCUMENTATION AGENTS" has the meaning assigned to that term
in the introduction to this Agreement.
"COLLATERAL" means all of the real, personal and mixed property
(including capital stock) in which Liens are purported to be granted pursuant to
the Collateral Documents as security for the Obligations.
"COLLATERAL AGENT" means DB, or any Person serving as successor
Administrative Agent hereunder, in its capacity (i) as Collateral Agent under
the Pledge Agreements and the Intercreditor Agreement on behalf of (a) Lenders
and Lender Counterparties (as defined in the Master Pledge Agreement) and (b)
the PBGC, and (ii) as Collateral Agent under this Agreement, the Guaranties and
the Collateral Documents (other than the Pledge Agreements) on behalf of Lenders
and Lender Counterparties.
"COLLATERAL DOCUMENTS" means the Pledge Agreements, this
Agreement (with respect to Section 8 hereof) and any other agreements,
instruments or documents that may be entered into from time to time after the
Closing Date by (i) any Subsidiary of Company pursuant to subsection 6.7B, (ii)
by Company or any Subsidiary Guarantor pursuant to subsection 6.8, or (iii) by
Company pursuant to Section 8.
"COMMERCIAL LETTER OF CREDIT" means any letter of credit or
similar instrument issued for the purpose of providing the primary payment
mechanism in connection with the purchase of any materials, goods or services by
Company or any of its Subsidiaries in the ordinary course of business of Company
or such Subsidiary.
"COMMITMENTS" means the Commitments of Lenders to make Loans as
set forth in subsection 2.1A.
"COMMODITIES AGREEMENT" means any forward commodities contract,
commodity futures contract, commodities option contract or similar agreement or
arrangement to which Company or any of its Subsidiaries is a party.
"COMPANY" has the meaning assigned to that term in the
introduction to this Agreement.
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"COMPLIANCE CERTIFICATE" means a certificate substantially in the
form of EXHIBIT VIII annexed hereto delivered to Administrative Agent and
Lenders by Company pursuant to subsection 6.1(iii).
"CONFIDENTIAL INFORMATION MEMORANDUM" means that certain
Confidential Information Memorandum relating to Company dated April 2003.
"CONSOLIDATED ADJUSTED EBITDA" means, with respect to any Person
for any period, an amount equal to (i) Consolidated Net Income PLUS (ii) to the
extent the following items are deducted in calculating such Consolidated Net
Income, the sum, without duplication, of the amounts for such period of (a)
Consolidated Interest Expense, (b) taxes computed on the basis of income, (c)
total depreciation expense, (d) total amortization expense (including
amortization of deferred financing fees), (e) any expenses or charges incurred
in connection with any issuance of debt or equity Securities (including upfront
fees payable in respect of bank facilities), (f) any restructuring charges or
reserves or non-recurring cash charges in an aggregate amount in the case of the
cash portion thereof not to exceed $5,000,000 in any consecutive twelve month
period ending on any date of determination, (g) any fees and expenses related to
Acquisitions and Investments permitted hereunder, (h) any other non-cash
charges, (i) any deduction for minority interest expense, (j) any other
non-recurring non-cash charges, (k) any redemption premiums and related
expenses, which related expenses shall be reasonably acceptable to
Administrative Agent, paid in connection with the redemption of the Existing
Subordinated Notes, and (l) LIBOR breakage costs paid in connection with the
repayment of LIBOR loans under the Existing
Credit Agreement on the Closing
Date, PLUS (iii) cash payments received during such period to the extent not
included in Consolidated Net Income for such period and to the extent received
in respect of a non-cash gain deducted from Consolidated Adjusted EBITDA
pursuant to this definition in a prior period, MINUS an amount equal to the sum
of (iv) to the extent the following items are added in calculating such
Consolidated Net Income, the sum, without duplication, of the amounts for such
period of (a) any non-recurring gains, and (b) any non-cash gains and (v) cash
expenditures during such period to the extent not deducted in arriving at
Consolidated Net Income for such period and to the extent made in respect of a
non-cash charge added to Consolidated Adjusted EBITDA pursuant to this
definition in an earlier period, all of the foregoing as determined on a
consolidated basis for such Person and its Subsidiaries in conformity with GAAP;
PROVIDED that (X) for purposes of subsections 7.6 and 7.7(ii) only, Consolidated
Adjusted EBITDA of any Included Pro Forma Entity (other than any Unrestricted
Subsidiary redesignated as a Subsidiary of Company) shall be increased (if
positive) or decreased (if negative) by any Pro Forma Adjustment applicable
thereto and (Y) Consolidated Adjusted EBITDA of Company and its Subsidiaries
shall be increased (if positive) or decreased (if negative) by the Net EBITDA
Adjustment.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
aggregate of all expenditures (whether paid in cash or other consideration or
accrued as a liability and including that portion of Capital Leases which is
capitalized as principal on the consolidated balance sheet of Company and its
Subsidiaries) by Company and its Subsidiaries during that period that, in
conformity with GAAP, are included in "additions to property, plant or
equipment" or comparable items reflected in the consolidated statement of cash
flows of Company and its Subsidiaries; PROVIDED that Consolidated Capital
Expenditures shall not
8
include (i) any such expenditures constituting all or a portion of the purchase
price in connection with any Acquisition, (ii) any such expenditures made in
connection with the replacement, substitution, repair or restoration of any
assets to the extent financed (a) with insurance proceeds received by Company or
any of its Subsidiaries on account of the loss of, or any damage to, the assets
being replaced, substituted for, repaired or restored or (b) with the proceeds
of any compensation awarded to Company or any of its Subsidiaries as a result of
the taking, by eminent domain or condemnation, of the assets being replaced or
substituted for, (iii) the purchase price of any equipment that is purchased
simultaneously with the trade-in of any existing equipment by Company or any of
its Subsidiaries to the extent that the gross amount of such purchase price is
reduced by any credit granted by the seller of such equipment for such equipment
being traded in, or (iv) the purchase price of any property, plant or equipment
purchased within one year of the consummation of any Asset Sale or any other
sale by Company or any of its Subsidiaries of any other property, plant or
equipment to the extent purchased with the Net Asset Sale Proceeds of such Asset
Sale or the proceeds of such other sale.
"CONSOLIDATED CURRENT ASSETS" means, as at any date of
determination, the total assets of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current assets in
conformity with GAAP, EXCLUDING Cash and Cash Equivalents.
"CONSOLIDATED CURRENT LIABILITIES" means, as at any date of
determination, the total liabilities of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current liabilities in
conformity with GAAP, EXCLUDING the current portions of Funded Debt.
"CONSOLIDATED EXCESS CASH FLOW" means, for any Fiscal Year, an
amount (if positive) equal to (i) the sum, without duplication, of the amounts
for such Fiscal Year of (a) Consolidated Net Income, (b) the amount of all
non-cash charges to the extent deducted in arriving at such Consolidated Net
Income, (c) any net decrease in Consolidated Working Capital since the end of
the preceding Fiscal Year (other than any such decrease resulting from (1)
transfers of accounts receivable pursuant to an Accounts Receivable Facility or
(2) transfers of accounts receivable and inventory in connection with
dispositions of assets outside of the ordinary course of business), and (d) the
aggregate net non-cash loss realized by Company and its Subsidiaries in
connection with the sale, lease, transfer or other disposition of assets by
Company and its Subsidiaries during such Fiscal Year (other than sales in the
ordinary course of business), to the extent deducted in arriving at such
Consolidated Net Income, MINUS (ii) the sum, without duplication, of the amounts
for such Fiscal Year of (a) the amount of all non-cash credits to the extent
added in arriving at such Consolidated Net Income, (b) Consolidated Capital
Expenditures actually paid in Cash during such Fiscal Year (net of the principal
amount of any Indebtedness incurred to finance such Consolidated Capital
Expenditures, whether incurred in such Fiscal Year or in the immediately
succeeding Fiscal Year), (c) the aggregate amount of all prepayments of
Revolving Loans and Swing Line Loans to the extent accompanied by permanent
reductions in the Revolving Loan Commitments, (d) the aggregate amount of all
principal payments in respect of any Indebtedness of Company or any of its
Subsidiaries (including the Term Loans and the principal component of any
payments in respect of Capital Leases), other than (1) any mandatory prepayments
of the Term Loans pursuant to subsection 2.4B(iii), (2) any
9
prepayments of Indebtedness with the proceeds of other Indebtedness, or (3)
repayments in respect of any revolving credit facility except to the extent
there is a permanent reduction in commitments thereunder in connection with such
repayments, (e) any net increase in Consolidated Working Capital since the end
of the preceding Fiscal Year (other than any such increase resulting from an
Acquisition), (f) the aggregate net non-cash gain realized by Company and its
Subsidiaries in connection with the sale, lease, transfer or other disposition
of assets by Company and its Subsidiaries during such Fiscal Year (other than
sales in the ordinary course of business), (g) the aggregate amount of all Cash
payments made by Company and its Subsidiaries in respect of long-term
liabilities of Company or any of its Subsidiaries other than Indebtedness, (h)
the aggregate amount of new Investments made in Cash in accordance with
subsection 7.3(vi), (i) the aggregate amount of Cash consideration paid in
connection with any Acquisitions (net of any such consideration paid out of any
Net Asset Sale Proceeds), (j) the aggregate amount of Restricted Junior Payments
made in accordance with subsection 7.5(ii)(a) (to the extent such Restricted
Junior Payments are required by the terms of the applicable management and/or
employee stock plan, stock subscription agreement or shareholder agreement) and
subsections 7.5(ii)(d) and (e), (k) the aggregate amount of any expenditures
actually made in Cash by Company and its Subsidiaries during such Fiscal Year
(including expenditures for the payment of financing fees) to the extent such
expenditures are not expensed during such Fiscal Year, (l) the aggregate amount
of any net currency gains realized by Company and its Subsidiaries during such
Fiscal Year that are prohibited from being repatriated to the United States, and
(m) the aggregate amount of any premium, make-whole or penalty payments actually
paid in cash during such Fiscal Year that are required in connection with any
prepayment of Indebtedness and that are accounted for by Company as
extraordinary items, all of the foregoing as determined on a consolidated basis
for Company and its Subsidiaries in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person
for any period, an amount equal to, without duplication, (i) (x) total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP, capitalized interest and any administrative agency or commitment or
other similar fees payable in respect of bank facilities) of such Person and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP, with
respect to all outstanding Indebtedness of such Person and its Subsidiaries,
including all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financings and net costs
under Interest Rate Agreements PLUS (y) Receivables Fees, but excluding,
however, (a) any interest expense not payable in Cash during such period, (b)
any amounts referred to in subsection 2.3 payable to Administrative Agent,
Syndication Agent and Lenders on or before the Closing Date (c) any redemption
premiums and related expenses, which related expenses shall be reasonably
acceptable to Administrative Agent, paid in connection with the redemption of
the Existing Subordinated Notes, and (d) LIBOR breakage costs paid in connection
with the repayment of LIBOR loans under the Existing
Credit Agreement on the
Closing Date, MINUS (ii) total interest income of such Person and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP, but
excluding, however, any interest income not received in Cash during such period;
PROVIDED that Consolidated Interest Expense of Company and its Subsidiaries
shall be increased (if positive) or decreased (if negative) by the Net Interest
Adjustment.
10
"CONSOLIDATED LEVERAGE RATIO" means, as of the last day of any
Fiscal Quarter, the ratio of (i) Consolidated Total Debt as of such date to (ii)
Consolidated Adjusted EBITDA of Company and its Subsidiaries for the four-Fiscal
Quarter period ending on such date.
"CONSOLIDATED NET INCOME" means, with respect to any Person (the
"SUBJECT PERSON") for any period, the net income (or loss) of the Subject Person
and its Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP; PROVIDED that there shall
be excluded (i) the income (or loss) of any Person in which any other Person
(other than the Subject Person or any of its Subsidiaries) has a joint interest,
except to the extent of the amount of dividends or other distributions actually
paid to the Subject Person or any of its Subsidiaries by the other Person during
such period, (ii) the income (or loss) of any Person accrued prior to the date
it becomes a Subsidiary of the Subject Person or is merged into or consolidated
with the Subject Person or any of its Subsidiaries or that Person's assets are
acquired by the Subject Person or any of its Subsidiaries, (iii) any after-tax
gains or losses, and any related fees and expenses, in each case to the extent
attributable to Asset Sales or returned surplus assets of any Pension Plan, (iv)
any translation currency gains and losses, and (v) (to the extent not included
in clauses (i) through (iv) above) any net extraordinary gains or net
extraordinary losses.
"CONSOLIDATED SENIOR LEVERAGE RATIO" means, as of the last day of
any Fiscal Quarter, the ratio of (i) Consolidated Total Debt (excluding any
Subordinated Indebtedness included in Consolidated Total Debt) as of such date
to (ii) Consolidated Adjusted EBITDA of Company and its Subsidiaries for the
four-Fiscal Quarter period ending on such date.
"CONSOLIDATED TOTAL DEBT" means, without duplication, as at any
date of determination, (a) the aggregate stated balance sheet amount of all
Indebtedness of Company and its Subsidiaries under clauses (i), (ii) and (iii)
of the definition of "Indebtedness" (but only to the extent, in the case of said
clause (iii), of any drawings honored under letters of credit and not yet
reimbursed by Company or any of its Subsidiaries), as determined on a
consolidated basis in accordance with GAAP PLUS (b) the Accounts Receivable
Facility Amount; PROVIDED that at such time as Company has given irrevocable
notice of redemption of the Existing Subordinated Notes, the outstanding
aggregate principal amount of Existing Subordinated Notes included in the
calculation of Consolidated Total Debt shall be reduced by the outstanding
aggregate principal amount of Delayed Draw Term B Loans included in such
calculation of Consolidated Total Debt.
"CONSOLIDATED WORKING CAPITAL" means, as at any date of
determination, the excess (or deficit) of Consolidated Current Assets over
Consolidated Current Liabilities.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
11
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement, currency futures contract, currency option contract,
synthetic currency exchange rate cap or other similar agreement or arrangement
to which Company or any of its Subsidiaries is a party.
"DB" has the meaning assigned to that term in the introduction to
this Agreement.
"DEFAULTING LENDER" has the meaning assigned to that term in
subsection 2.9.
"DEFAULT PERIOD" has the meaning assigned to that term in
subsection 2.9.
"DELAYED DRAW TERM B LOANS" has the meaning assigned to that term
in subsection 2.1A(ii).
"DELAYED DRAW TERM B LOAN COMMITMENT" means the commitment of a
Tranche B Lender to make a Delayed Draw Term B Loan to Company.
"DELAYED DRAW TERM B LOAN COMMITMENT TERMINATION DATE" the 90th
day after the Closing Date or such earlier date on which the Delayed Draw Term B
Loan Commitment may be terminated pursuant to Section 8.
"DELAYED DRAW TERM B LOAN PERIOD" has the meaning assigned to
that term in subsection 2.1B.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"DOLLARS" and the sign "$" mean the lawful money of the United
States of America.
"DOMESTIC SUBSIDIARY" means a Subsidiary of Company organized
under the laws of the United States or any state thereof.
"ELIGIBLE ASSIGNEE" means (A) (i) a commercial bank organized
under the laws of the United States or any state thereof; (ii) a savings and
loan association or savings bank organized under the laws of the United States
or any state thereof; (iii) a commercial bank organized under the laws of any
other country or a political subdivision thereof; PROVIDED that (x) such bank is
acting through a branch or agency located in the United States or (y) such bank
is organized under the laws of a country that is a member of the Organization
for Economic Cooperation and Development or a political subdivision of such
country; and (iv) any other entity which is an "accredited investor" (as defined
in Regulation D under the Securities Act) which extends credit or buys or
invests in loans as one of its businesses including commercial finance
companies, insurance companies, mutual funds and lease financing companies; and
(B) any Lender and any Affiliate or Related Fund of any Lender; PROVIDED that
neither Company nor any Affiliate of Company shall be an Eligible Assignee.
12
"ENVIRONMENTAL CLAIMS" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigations (other than internal
reports prepared by Company or any of its Subsidiaries (i) in the ordinary
course of such Person's business or (ii) as required in connection with a
financing transaction or an acquisition or disposition of real estate) or
proceedings relating in any way to any Environmental Law (for purposes of this
definition, "CLAIMS"), including (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law and (b)
any and all Claims by any Third Party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from
Hazardous Materials or arising from alleged injury or threat of injury to
health, safety or the environment.
"ENVIRONMENTAL LAWS" means any and all present and future laws,
statutes, ordinances, rules, regulations, requirements, restrictions, permits,
orders, and determinations of any governmental authority that have the force and
effect of law, and that pertain to pollution (including hazardous, toxic or
dangerous substances), natural resources or the environment, whether federal,
state, or local, domestic or foreign including environmental response laws such
as the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 and
as the same may be further amended (hereinafter collectively called "CERCLA").
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any regulations promulgated thereunder.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with Company or any of its Subsidiaries
within the meaning of Section 414(b) or (c) of the Internal Revenue Code or (for
purposes of provisions of the Internal Revenue Code relating to Section 412 of
the Internal Revenue Code) Section 414(m) or (o) of the Internal Revenue Code.
"ERISA EVENT" means any of the following events or occurrences if
such event or occurrence could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect: (i) the failure to make a required
contribution to a Pension Plan; (ii) a withdrawal by Company, any of its
Subsidiaries 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 operation which is treated as
such a withdrawal under Section 4062(e) of ERISA; (iii) a complete or partial
withdrawal by Company, any of its Subsidiaries or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization or is insolvent pursuant to Section 4241 or 4245 of ERISA; (iv)
the filing of a notice of intent to terminate, the treatment of a Plan amendment
as a termination under Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate, in each case with respect to a Pension
Plan or Multiemployer Plan; (v) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; (vi) the imposition of any liability upon Company, any of
its
13
Subsidiaries or any ERISA Affiliate under Title IV of ERISA (other than with
respect to PBGC premiums due but not delinquent under Section 4007 of ERISA)
upon Company, any of its Subsidiaries or any ERISA Affiliate; (vii) the
imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Internal
Revenue Code or pursuant to ERISA with respect to any Pension Plan; (viii)
receipt from the Internal Revenue Service of notice of the failure of any
Pension Plan (or any other Plan intended to qualify under Section 401(a) of the
Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue
Code, or the failure of any trust forming part of any Pension Plan to qualify
for exemption from taxation under Section 501(a) of the Internal Revenue Code;
or (ix) the violation of any applicable foreign law, or an event or occurrence
that is comparable to any of the foregoing events or occurrences, in either case
with respect to a Plan that is not subject to regulation under ERISA by reason
of Section 4(b)(4) of ERISA.
"EVENT OF DEFAULT" means each of the events set forth in Section
8.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"EXCHANGE RATE" means, on any date when an amount expressed in a
currency other than Dollars is to be determined with respect to any Letter of
Credit, the spot rate of exchange of the applicable Issuing Lender in the
New
York foreign exchange market for the purchase by such Issuing Lender of such
currency in exchange for Dollars two Business Days prior to such date, expressed
as a number of units of such currency per one Dollar.
"EXCLUDED PRO FORMA ENTITY" means, for any period, (i) any
Person, property, business or asset (other than an Unrestricted Subsidiary) that
is sold, transferred or otherwise disposed of by Company or any of its
Subsidiaries to a Third Party during such period; PROVIDED that, for purposes of
calculating any consolidated financial information for any Excluded Pro Forma
Entity to be used in determining the Net EBITDA Adjustment or Net Interest
Adjustment for such period, financial information pertaining to any Person,
property, business or asset that was related to such Excluded Pro Forma Entity
but that was not disposed of by Company or such Subsidiary shall not be
consolidated with the relevant financial information of the Excluded Pro Forma
Entity and (ii) any Subsidiary of Company that is redesignated as an
Unrestricted Subsidiary during such period.
"EXISTING A/R FACILITY" means the accounts receivable factoring
facility established pursuant to that certain Receivables Purchase Agreement
dated as of December 3, 1993 between Amphenol Funding Corp., as Seller, Company,
individually and as initial servicer, Pooled Accounts Receivable Capital
Corporation, as purchaser, and Bank of Montreal, as agent, as amended prior to
the Closing Date.
"EXISTING
CREDIT AGREEMENT" means that certain Amended and
Restated
Credit Agreement dated as of October 3, 1997 by and among Company,
Amphenol Holding UK, Limited, Amphenol Commercial & Industrial UK, Limited, the
lenders parties thereto, The Chase Manhattan Bank, as syndication agent, The
Bank of
New York, as documentation
14
agent, and DB (formerly Bankers Trust Company), as administrative agent and
collateral agent, as amended prior to the Closing Date.
"EXISTING LETTERS OF CREDIT" has the meaning assigned to that
term in subsection 3.1C.
"EXISTING SUBORDINATED NOTE INDENTURE" means the indenture
pursuant to which the Existing Subordinated Notes were issued, as amended prior
to the Closing Date.
"EXISTING SUBORDINATED NOTES" means the approximately
$144,000,000 in outstanding aggregate principal amount of 9.875% Senior
Subordinated Notes due 2007.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of
New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by Administrative Agent from three Federal funds
brokers of recognized standing selected by Administrative Agent.
"FINANCIAL PLAN" has the meaning assigned to that term in
subsection 6.1(ix).
"FINANCING REQUIREMENTS" means the aggregate of all amounts
necessary (i) to repurchase the Existing Subordinated Notes (including, without
limitation, the payment of any redemption premiums) and to repay all
Indebtedness outstanding under the Existing
Credit Agreement and (ii) to pay
Transaction Costs.
"FIRST PRIORITY" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that (i) such
Lien has priority over any other Lien on such Collateral and (ii) such Lien is
the only Lien (other than Permitted Encumbrances) to which such Collateral is
subject.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Company and its
Subsidiaries ending on December 31 of each calendar year (or any other date to
which such Fiscal Year-end is changed pursuant to subsection 6.12).
"FOREIGN SUBSIDIARY" means a Subsidiary that is not a Domestic
Subsidiary.
"FUNDED DEBT", as applied to any Person, means all Indebtedness
for borrowed money of that Person (including any current portions thereof) which
by its terms or by the terms of any instrument or agreement relating thereto
matures more than one year from, or is directly renewable or extendable at the
option of that Person to a date more than one year from (including an option of
that Person under a revolving credit or similar agreement obligating the lender
or lenders to extend credit over a period of one year or more from), the date of
the creation thereof.
15
"FUNDING AND PAYMENT OFFICE" means (i) the office of
Administrative Agent and Swing Line Lender located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or (ii) such other office of Administrative Agent and/or
Swing Line Lender as may from time to time hereafter be designated as such in a
written notice delivered by Administrative Agent and/or Swing Line Lender to
Company and each Lender.
"FUNDING DATE" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application
thereof set forth in subsection 1.2, generally accepted accounting principles
set forth in opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession in the United States, in each case as the same are
applicable to the circumstances as of the date of determination.
"GOVERNMENT AUTHORITY" means any political subdivision or
department thereof, any other governmental or regulatory body, commission,
central bank, board, bureau, organ or instrumentality or any court, in each case
whether federal, state, local or foreign.
"GOVERNMENTAL AUTHORIZATION" means any permit, license,
authorization, plan, directive, consent order or consent decree of or from any
federal, state, local or foreign governmental authority, agency or court.
"GUARANTEE OBLIGATIONS" means, as to any Person, any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such Indebtedness or any property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (a) for the purchase or payment of any such Indebtedness or (b) to
maintain working capital or equity capital of the Primary Obligor or otherwise
to maintain the net worth or solvency of the Primary Obligor, (iii) to purchase
property, Securities or services primarily for the purpose of assuring the owner
of any such Indebtedness of the ability of the Primary Obligor to make payment
of such Indebtedness or (iv) otherwise to assure or hold harmless the owner of
such Indebtedness against loss in respect thereof; PROVIDED, HOWEVER, that the
term "Guarantee Obligations" shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the Indebtedness in respect of which such Guarantee
Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith.
"GUARANTOR" means any Subsidiary Guarantor and any other
guarantor of the Obligations.
"GUARANTIES" means the Subsidiary Guaranty and any guaranty
entered into by any Subsidiary of Company pursuant to subsection 6.7B.
16
"HAZARDOUS MATERIALS" means any substance that is defined or
listed as a hazardous, toxic or dangerous substance under any present or future
Environmental Law or that is otherwise regulated or prohibited or subject to
investigation or remediation under any present or future Environmental Law
because of its hazardous, toxic, or dangerous properties, including (i) any
substance that is a "hazardous substance" under CERCLA (as defined in the
definition of "ENVIRONMENTAL LAWS") and (ii) petroleum wastes or products.
"HEDGE AGREEMENT" means any Interest Rate Agreement, Commodities
Agreement or Currency Agreement designed to hedge against fluctuations in
interest rates, the price or availability of commodities, or currency values,
respectively.
"INCLUDED PRO FORMA ENTITY" means, for any period, (i) any
Person, property, business or asset (other than an Unrestricted Subsidiary) that
is acquired by Company or any of its Subsidiaries from a Third Party during such
period and not subsequently sold, transferred or otherwise disposed of by
Company or such Subsidiary to a Third Party during such period; PROVIDED that,
for purposes of calculating any consolidated financial information for any
Included Pro Forma Entity to be used in determining the Net EBITDA Adjustment or
Net Interest Adjustment for such period, financial information pertaining to any
Person, property, business or asset that was related to such Included Pro Forma
Entity but that was not acquired by Company or such Subsidiary shall not be
consolidated with the relevant financial information of the Included Pro Forma
Entity and (ii) any Unrestricted Subsidiary that is redesignated as a Subsidiary
of Company during such period.
"INDEBTEDNESS", as applied to any Person, means (i) all
indebtedness of such Person for borrowed money, (ii) that portion of obligations
with respect to Capital Leases that is properly classified as a liability on a
balance sheet of such Person in conformity with GAAP, (iii) any obligation
incurred by such Person in connection with banker's acceptances and the maximum
aggregate amount from time to time available for drawing under all outstanding
letters of credit issued for the account of such Person together, without
duplication, with the amount of all honored but unreimbursed drawings
thereunder, (iv) any obligation owed for all or any part of the deferred
purchase price of property or services (excluding any such obligations incurred
under ERISA), which purchase price (a) is due more than six months from the date
of incurrence of the obligation in respect thereof and (b) would be shown on the
liability side of the balance sheet of such Person in accordance with GAAP, (v)
all monetary obligations of such Person under Hedge Agreements (it being
understood that monetary obligations under Interest Rate Agreements, Commodities
Agreements and Currency Agreements other than Hedge Agreements constitute
Investments and not Indebtedness), and (vi) all indebtedness referred to in
clauses (i) through (iv) above secured by any Lien on any property or asset
owned or held by that Person regardless of whether the indebtedness secured
thereby shall have been assumed by that Person or is nonrecourse to the credit
of that Person; PROVIDED that the term "Indebtedness" shall (X) include any
obligations in respect of any Accounts Receivable Facility and (Y) exclude any
trade payables or accrued expenses arising in the ordinary course of business.
"INDEMNITEE" has the meaning assigned to that term in subsection
10.3.
17
"INTELLECTUAL PROPERTY" means all patents, trademarks,
tradenames, copyrights, technology, know-how and processes used in or necessary
for the conduct of the business of Company and its Subsidiaries as currently
conducted that are material to the condition (financial or otherwise), business
or operations of Company and its Subsidiaries, taken as a whole.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement,
dated as of May 19, 1997 by and among the PBGC, Administrative Agent, Collateral
Agent and Company as such Intercreditor Agreement may be amended, modified or
otherwise supplemented from time to time after the Closing Date.
"INTEREST PAYMENT DATE" means (i) with respect to any Base Rate
Loan, each March 31, June 30, September 30 and December 31 of each year,
commencing on the first such date to occur after the Closing Date, and (ii) with
respect to any LIBOR Loan, the last day of each Interest Period applicable to
such Loan; PROVIDED that, in the case of each Interest Period of longer than
three months, "Interest Payment Date" shall also include each date that is three
months, or an integral multiple thereof, after the commencement of such Interest
Period.
"INTEREST PERIOD" has the meaning assigned to that term in
subsection 2.2B.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement to which Company or any of its Subsidiaries is a party.
"INTEREST RATE DETERMINATION DATE" means with respect to any
Interest Period, the second Business Day prior to the first day of such Interest
Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986,
as amended to the Closing Date and from time to time thereafter, and any
successor statute.
"INVESTMENT" means (i) any purchase or other acquisition by
Company or any of its Subsidiaries of, or of a beneficial interest in, any
Securities of any other Person (other than a Person that prior to such purchase
or acquisition was a Subsidiary of Company), (ii) any loan, advance (other than
advances to employees for moving, entertainment and travel expenses, drawing
accounts and similar expenditures in the ordinary course of business) or capital
contribution by Company or any of its Subsidiaries to any Third Party, including
all indebtedness and accounts receivable from that Third Party that are not
current assets or did not arise from sales to that Third Party in the ordinary
course of business, (iii) the designation of any Person as an Unrestricted
Subsidiary, or (iv) any monetary obligations under Interest Rate Agreements,
Commodities Agreements or Currency Agreements not constituting Hedge Agreements.
The amount of any Investment shall be (A) the original cost of such Investment
(determined, in the case of an Investment described in clause (iii) above, as
provided in the definition of "Subsidiary", without any adjustments for
increases or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment, MINUS (B) the lesser of (1) the aggregate amount of
any repayments, redemptions, dividends or distributions thereon or proceeds from
the sale thereof, in each
18
case to the extent of Cash payments (including any Cash received by way of
deferred payment pursuant to, or monetization of, a note receivable or
otherwise, but only as and when so received) actually received by Company or the
applicable Subsidiary of Company, and (2) the aggregate amount described in the
immediately preceding clause (A).
"ISSUING LENDER" means, with respect to any Letter of Credit, the
Revolving Lender which agrees or is otherwise obligated to issue such Letter of
Credit, determined as provided in subsection 3.1B(ii) and, with respect to DB,
shall include its Affiliate, Deutsche Bank AG,
New York Branch.
"JOINT LEAD ARRANGERS" means Deutsche Bank Securities Inc. and
UBSW.
"JOINT VENTURE" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal form;
PROVIDED that in no event shall any corporate Subsidiary of any Person be
considered to be a Joint Venture to which such Person is a party.
"KKR" means Kohlberg Kravis ▇▇▇▇▇▇▇ & Co. L.P.
"LENDER" and "LENDERS" means the persons identified as "Lenders"
and listed on the signature pages of this Agreement, together with their
successors and permitted assigns pursuant to subsection 10.1, and the term
"Lenders" shall include Swing Line Lender unless the context otherwise requires;
PROVIDED that the term "LENDERS", when used in the context of a particular
Commitment, shall mean Lenders having that Commitment.
"LENDING OFFICE" means, as to any Lender, the office of such
Lender specified as its "LENDING OFFICE" on SCHEDULE 2.1 annexed hereto (with
respect to Lenders listed on the signature pages hereto) or in the Assignment
Agreement pursuant to which it became or becomes a Lender, or such other office
or offices as such Lender may have or may from time to time hereafter designate
as such in a written notice delivered by such Lender to Company and
Administrative Agent.
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means Commercial
Letters of Credit and Standby Letters of Credit issued or to be issued by
Issuing Lenders for the account of Company pursuant to subsection 3.1, including
any Existing Letters of Credit.
"LETTER OF CREDIT USAGE" means, as at any date of determination,
the sum of (i) the maximum aggregate amount which is or at any time thereafter
may become available for drawing under all Letters of Credit then outstanding
PLUS (ii) the aggregate amount of all drawings under Letters of Credit honored
by Issuing Lenders and not theretofore reimbursed by Company (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to subsection
3.3B). For purposes of this definition, any amount described in clause (i) or
(ii) of the preceding sentence which is denominated in a currency other than
Dollars shall be valued based on the applicable Exchange Rate for such currency
as of the applicable date of determination.
"LIBOR" means, for any Interest Rate Determination Date with
respect to an Interest Period for a LIBOR Loan, the rate per annum determined on
the basis of the London
19
interbank offered rate for Dollar deposits with maturities comparable to such
Interest Period as of approximately 11:00 A.M. (London time) on such Interest
Rate Determination Date as set forth on Telerate Page 3750; PROVIDED that in the
event such rate does not appear on Page 3750 (or otherwise) of the Telerate
Service, "LIBOR" for purposes of this paragraph shall be determined by reference
to (i) such other publicly available service for displaying interest rates for
Dollar deposits as may be agreed upon by Company and Administrative Agent or
(ii) in the absence of such agreement, the arithmetic average (rounded upward to
the nearest 1/16 of one percent) of the offered quotations, if any, to first
class banks in the London interbank market by Reference Lenders for Dollar
deposits of amounts in same day funds comparable to the respective principal
amounts of the LIBOR Loans of Reference Lenders for which LIBOR is then being
determined (which principal amount shall be deemed to be $1,000,000 in the case
of any Reference Lender not making, converting to or continuing such a LIBOR
Loan) with maturities comparable to such Interest Period as of approximately
10:00 A.M. (
New York time) on such Interest Rate Determination Date; PROVIDED
that if any Reference Lender fails to provide Administrative Agent with its
aforementioned quotation then LIBOR shall be determined based on the
quotation(s) provided to Administrative Agent by the other Reference Lender(s).
"LIBOR LOANS" means Loans bearing interest at rates determined by
reference to LIBOR as provided in subsection 2.2A.
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or other similar encumbrance of any kind (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, and any agreement to give any security interest) and any other similar
preferential arrangement having the practical effect of any of the foregoing.
"LLC PLEDGE AGREEMENT" means the LLC Pledge Agreement executed
and delivered on the Closing Date by Company and Collateral Agent, in form and
substance satisfactory to Collateral Agent and Administrative Agent, as such LLC
Pledge Agreement may thereafter be amended, supplemented or otherwise modified
from time to time.
"LOAN" or "LOANS" means one or more of the Tranche A Term Loans,
Tranche B Term Loans, Revolving Loans or Swing Line Loans or any combination
thereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Letters of
Credit (and any applications for Letters of Credit), the Guaranties and the
Collateral Documents.
"LOAN PARTY" means Company, each Subsidiary Guarantor and each
Subsidiary executing and delivering a Loan Document on or after the Closing Date
pursuant to subsection 6.7B or subsection 6.8, and "LOAN PARTIES" means all such
Persons, collectively.
"MANAGEMENT GROUP" means, at any time, the Chairman of the Board,
the President, any Executive Vice President or Vice President, the Treasurer and
the Secretary of the Company at such time.
20
"MARGIN STOCK" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System as in
effect from time to time.
"MASTER PLEDGE AGREEMENT" means the Master Pledge Agreement
executed and delivered on the Closing Date by Company and Collateral Agent,
substantially in the form of EXHIBIT XIV annexed hereto, as such Master Pledge
Agreement may thereafter be amended, supplemented or otherwise modified from
time to time.
"MATERIAL ADVERSE EFFECT" means any circumstance or condition
affecting the business, assets, operations, properties or financial condition of
Company and its Subsidiaries, taken as a whole, that would materially adversely
affect (a) the ability of Loan Parties, taken as a whole, to perform their
obligations under this Agreement and the other Loan Documents, taken as a whole,
or (b) the rights and remedies of Administrative Agent and Lenders under this
Agreement and the other Loan Documents, taken as a whole.
"MATERIAL FOREIGN SUBSIDIARY" means a Material Subsidiary that is
not a Domestic Subsidiary.
"MATERIAL SUBSIDIARY" means each Subsidiary of Company now
existing or hereafter acquired or formed by Company which, on a consolidated
basis for such Subsidiary and its Subsidiaries, (a) for the most recent Fiscal
Year accounted for more than 5% of the consolidated gross revenues of Company
and its Subsidiaries or (b) as at the end of such Fiscal Year, was the owner of
more than 5% of the consolidated total assets of Company and its Subsidiaries.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Services, Inc., and any
successor thereto.
"▇▇▇▇▇'▇ RATING" means, at any time, the rating issued by Moody's
and then in effect with respect to Company's senior secured debt.
"MULTIEMPLOYER PLAN" means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, with respect to which Company, any of
its Subsidiaries or any ERISA Affiliate may have liability.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset Sale,
Cash payments (including any Cash received by way of deferred payment pursuant
to, or by monetization of, a note receivable or otherwise, but only as and when
so received) received by Company or any Subsidiary from such Asset Sale, net of
(i) the costs and expenses relating to such Asset Sale, (ii) all taxes paid or
estimated to be payable in connection with such Asset Sale, (iii) payment of the
outstanding principal amount of, premium or penalty, if any, and interest on any
Indebtedness (other than the Loans) that is secured by a Lien on the stock or
assets in question and that is required to be repaid under the terms thereof as
a result of such Asset Sale and (iv) the amount of any reasonable reserves
established in accordance with GAAP against any liabilities (other than taxes
described in clause (ii) above) that are (a) associated with the assets that are
the subject of such Asset Sale and (b) retained by Company or any of its
Subsidiaries; PROVIDED that (X) in the event the amount of any taxes estimated
to be payable as described in clause (ii) above exceeds the amount actually
paid, Company or
21
the applicable Subsidiary shall be deemed to have received Net Asset Sale
Proceeds in the amount of such excess on the date such taxes are paid, and (Y)
upon any subsequent reduction in the amount of any reserve described in clause
(iv) above (other than in connection with a payment by Company or the applicable
Subsidiary in respect of the applicable liability), Company or the applicable
Subsidiary shall be deemed to have received Net Asset Sale Proceeds on the date
and in the amount of such reduction.
"NET EBITDA ADJUSTMENT" means, for any period, an amount equal to
(i) the sum of the aggregate of the amounts of Consolidated Adjusted EBITDA for
any Included Pro Forma Entities (calculated for the entire such period for each
such Included Pro Forma Entity as if such Included Pro Forma Entity had become
an Included Pro Forma Entity on the first day of such period) MINUS (ii) the sum
of the aggregate of the amounts of Consolidated Adjusted EBITDA for any Excluded
Pro Forma Entities (calculated for the entire such period for each such Excluded
Pro Forma Entity, including any portion thereof prior to the date on which it
became an Excluded Pro Forma Entity).
"NET INDEBTEDNESS PROCEEDS" means the cash proceeds (net of
underwriting discounts and commissions and other reasonable costs and expenses
associated therewith, including reasonable legal fees and expenses) from the
incurrence of Indebtedness by Company or any of its Subsidiaries.
"NET INTEREST ADJUSTMENT" means, for any period, an amount equal
to (i) the sum of the aggregate of the amounts of Consolidated Interest Expense
for any Included Pro Forma Entities (calculated for the entire such period for
each such Included Pro Forma Entity, including any portion thereof prior to the
date on which it became an Included Pro Forma Entity, in each case on a pro
forma basis as if any Indebtedness of such Included Pro Forma Entity that was
incurred, assumed or prepaid in connection with the transaction pursuant to
which it became an Included Pro Forma Entity had been incurred, assumed or
prepaid on the first day of such period) MINUS (ii) the sum of the aggregate of
the amounts of Consolidated Interest Expense for any Excluded Pro Forma Entities
(calculated for the entire such period for each such Excluded Pro Forma Entity,
including any portion thereof prior to the date on which it became an Excluded
Pro Forma Entity).
"NON-EXCLUDED TAX" has the meaning assigned to that term in
subsection 2.7A.
"NOTES" means one or more of the Tranche A Term Notes, Tranche B
Term Notes, Revolving Notes or Swing Line Note or any combination thereof.
"NOTICE OF BORROWING" means a notice substantially in the form of
EXHIBIT I annexed hereto delivered by Company to Administrative Agent pursuant
to subsection 2.1B with respect to a proposed borrowing.
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially
in the form of EXHIBIT II annexed hereto delivered by Company to Administrative
Agent pursuant to subsection 2.2D with respect to a proposed conversion or
continuation of the applicable basis for determining the interest rate with
respect to the Loans specified therein.
22
"NOTICE OF REQUEST FOR ISSUANCE OF LETTER OF CREDIT" means a
notice substantially in the form of EXHIBIT III annexed hereto delivered by
Company to Administrative Agent pursuant to subsection 3.1B(i) with respect to
the proposed issuance of a Letter of Credit.
"OBLIGATIONS" means all monetary obligations of every nature of
each Loan Party from time to time owed to Agents, Lenders or any of them under
the Loan Documents, whether for principal, interest, reimbursement of amounts
drawn under Letters of Credit, fees, expenses, indemnification or otherwise.
"OFFICER'S CERTIFICATE" means, as applied to any corporation, a
certificate executed on behalf of such corporation by its chairman of the board
(if an officer), its president, one of its vice presidents, its chief financial
officer, or its treasurer.
"ORGANIZATIONAL DOCUMENTS" means the documents (including Bylaws
or limited liability company agreement, if applicable) pursuant to which a
Person that is a corporation, partnership, trust or limited liability company is
organized.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"PBGC AGREEMENTS" means that certain Settlement Agreement
effective as of May 14, 1997, by and between the Company and the PBGC, and that
certain Negative Pledge Undertaking dated May 19, 1997, from the Company for the
benefit of the PBGC, in each case as amended from time to time after the Closing
Date in accordance with subsection 7.9.
"PENSION PLAN" means a pension plan as defined in Section 3(2) of
ERISA (other than a Multiemployer Plan), with respect to which Company, any of
its Subsidiaries or any ERISA Affiliate may have any liability.
"PERMITTED ENCUMBRANCES" means the following types of Liens:
(i) Liens (other than any Lien imposed pursuant to Section
401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA or any Lien in
favor of the PBGC) for taxes, fees, assessments or other governmental charges
which are not delinquent or remain payable without penalty, or to the extent
that payment thereof is otherwise not, at the time, required by subsection 6.3;
(ii) Liens in respect of property or assets imposed by law,
such as carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of business,
in each case so long as such Liens do not, individually or in the aggregate,
have a Material Adverse Effect;
(iii) Liens (other than any Lien imposed pursuant to Section
401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA or any Lien in
favor of the PBGC) incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other types
of social security, or to secure the
23
performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and return-of-money bonds and other
similar obligations incurred in the ordinary course of business (exclusive of
obligations in respect of payments for borrowed money);
(iv) Liens incurred in the ordinary course of business on
securities to secure repurchase and reverse repurchase obligations in respect of
such securities;
(v) Liens consisting of judgment or judicial attachment liens
in circumstances not constituting an Event of Default under subsection 8.8;
(vi) easements, rights-of-way, restrictions, minor defects or
irregularities of title and other similar encumbrances not interfering in any
material respect with the business of Company and its Subsidiaries, taken as a
whole;
(vii) Liens securing obligations in respect of Capital Leases
on the assets subject to such Capital Leases; PROVIDED that such Capital Leases
are otherwise permitted hereunder;
(viii) Liens arising solely by virtue of (a) any statutory or
common law provision relating to bankers' liens, rights of set-off or similar
rights and remedies with respect to deposit accounts or other funds maintained
with a creditor depository institution or (b) any contractual netting
arrangement with respect to deposit accounts maintained by any Subsidiaries of
Company in the United Kingdom, to the extent such arrangement secures the
repayment of any overdraft charged against any such account on a net
credit/debit balance basis with the other such accounts; PROVIDED that (in the
case of both clause (a) and (b) above) the applicable deposit account is not a
cash collateral account;
(ix) any interest or title of a lessor, or secured by a
lessor's interest under, any lease permitted by this Agreement;
(x) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection with the
importation of goods;
(xi) Liens on goods the purchase price of which is financed by
a Commercial Letter of Credit issued for the account of Company or any of its
Subsidiaries; PROVIDED that such Lien secures only the obligations of Company or
such Subsidiary in respect of such Commercial Letter of Credit to the extent
permitted under this Agreement;
(xii) leases or subleases granted to others not interfering in
any material respect with the business of Company and its Subsidiaries, taken as
a whole; and
(xiii) Liens created or deemed to exist in connection with an
Accounts Receivable Facility, to the extent that any such Lien relates to
accounts receivables subject to such program, the cash proceeds thereof,
guarantees and contracts directly related to such accounts receivable and/or
rights to the goods sold thereby.
24
"PERSON" means and includes natural persons, corporations,
limited partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
"PLAN" means an employee benefit plan (as defined in Section 3(3)
of ERISA) which Company or any of its Subsidiaries sponsors or maintains, or to
which Company or any of its Subsidiaries makes, is making or is obligated to
make contributions, or to which Company or any of its Subsidiaries may have any
liability, and includes any Pension Plan.
"PLEDGE AGREEMENTS" means the Master Pledge Agreement, the LLC
Pledge Agreement and any pledge agreements or other similar instruments that
Company has entered into or may enter into from time to time on or after the
Closing Date with respect to any Material Foreign Subsidiary pursuant to the
terms of the Master Pledge Agreement, as such agreements or instruments may
thereafter be amended, supplemented or otherwise modified from time to time.
"PLEDGED COLLATERAL" means, collectively, the "Pledged
Collateral" as defined in each of the Master Pledge Agreement and the LLC Pledge
Agreement.
"POTENTIAL EVENT OF DEFAULT" means a condition or event that,
after notice or lapse of time or both, would constitute an Event of Default.
"PRIME RATE" means the rate that DB announces from time to time
as its prime lending rate, as in effect from time to time. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. DB or any other Lender may make commercial
loans or other loans at rates of interest at, above or below the Prime Rate.
"PRO FORMA ADJUSTMENT" means, for any period with respect to any
Included Pro Forma Entity (other than an Unrestricted Subsidiary redesignated as
a Subsidiary of Company, for which there shall be no Pro Forma Adjustment), the
pro forma increase or decrease in the Consolidated Adjusted EBITDA of such
Included Pro Forma Entity that Company in good faith predicts will occur, and
that are reasonably satisfactory to Administrative Agent, as a result of
reasonably identifiable and supportable net cost savings or additional net costs
or a reasonably identifiable and supportable increase in sales volume, as the
case may be, that will be realizable during such period by combining the
operations of such Included Pro Forma Entity with the operations of Company and
its Subsidiaries; PROVIDED that, so long as such net cost savings or additional
net costs or increase in sales volume will be realizable at any time during such
period it shall be assumed, for purposes of projecting such pro forma increase
or decrease in such Consolidated Adjusted EBITDA, that such net cost savings or
additional net costs or increase in sales volume will be realizable during the
entire such period; and PROVIDED, FURTHER that any such pro forma increase or
decrease in such Consolidated Adjusted EBITDA shall be without duplication of
any net cost
25
savings or additional net costs or increase in sales volume actually realized
during such period and already included in such Consolidated Adjusted EBITDA.
"PRO FORMA ADJUSTMENT CERTIFICATE" shall mean a certificate of a
Responsible Officer of Company delivered pursuant to subsection 6.1(xii) setting
forth the information described in clause (d) of subsection 6.1(iii).
"PRO RATA SHARE" means (i) with respect to all payments,
computations and other matters relating to the Tranche A Term Loans of any
Lender, the percentage obtained by DIVIDING (x) the Tranche A Term Loan Exposure
of that Lender BY (y) the aggregate Tranche A Term Loan Exposure of all Lenders,
(ii) with respect to all payments, computations and other matters relating to
the Tranche B Term Loan of any Lender, the percentage obtained by DIVIDING (x)
the Tranche B Term Loan Exposure of that Lender BY (y) the aggregate Tranche B
Term Loan Exposure of all Lenders, (iii) with respect to all payments,
computations and other matters relating to the Revolving Loan Commitment or the
Revolving Loans of any Lender or any Letters of Credit issued or participations
therein purchased by any Lender or any participations in any Swing Line Loans
purchased by any Lender, the percentage obtained by DIVIDING (x) the Revolving
Loan Exposure of that Lender BY (y) the aggregate Revolving Loan Exposure of all
Lenders, and (v) for all other purposes with respect to each Lender, the
percentage obtained by DIVIDING (x) the sum of the Tranche A Term Loan Exposure
of that Lender PLUS the Tranche B Term Loan Exposure of that Lender PLUS the
Revolving Loan Exposure of that Lender BY (y) the sum of the aggregate Tranche A
Term Loan Exposure of all Lenders PLUS the aggregate Tranche B Term Loan
Exposure of all Lenders PLUS the aggregate Revolving Loan Exposure of all
Lenders, in any such case as the applicable percentage may be adjusted by
assignments permitted pursuant to subsection 10.1. The Pro Rata Share of each
Lender as of the Closing Date for purposes of each of subclauses (i), (ii),
(iii) and (iv) of clause (B) of the preceding sentence is set forth opposite the
name of that Lender in SCHEDULE 2.1 annexed hereto.
"RECEIVABLES FEES" means distributions or payments made directly
or by means of discounts with respect to any participation interests issued or
sold in connection with, and other interest-equivalent fees or costs paid in
connection with, any Accounts Receivable Facility whether or not accounted for
as interest expense under GAAP.
"REFERENCE LENDERS" means DB and UBS AG, Cayman Islands Branch.
"REFUNDED SWING LINE LOANS" has the meaning assigned to that term
in subsection 2.1A(iv).
"REGISTER" has the meaning assigned to that term in subsection
2.1D.
"REGULATION D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"REIMBURSEMENT DATE" has the meaning assigned to that term in
subsection 3.3B.
26
"RELATED FUNDS" means, with respect to any Lender, a fund that
invests in commercial loans and is administered or managed by the same
investment advisor or manager as such Lender, an Affiliate of such Lender or by
an Affiliate of the same investment advisor or manager as such lender.
"REQUISITE CLASS LENDERS" means, at any time of determination (i)
for the Class of Lenders having Revolving Loan Exposure, Lenders having or
holding more than 50% of the aggregate Revolving Loan Exposure of all Lenders,
(ii) for the Class of Lenders having Tranche A Term Loan Exposure, Lenders
having or holding more than 50% of the aggregate Tranche A Term Loan Exposure of
all Lenders, and (iii) for the Class of Lenders having Tranche B Term Loan
Exposure, Lenders having or holding more than 50% of the aggregate Tranche B
Term Loan Exposure of all Lenders.
"REQUISITE LENDERS" means Lenders having or holding more than 50%
of the sum of the aggregate Tranche A Term Loan Exposure of all Lenders PLUS the
aggregate Tranche B Term Loan Exposure of all Lenders PLUS the aggregate
Revolving Loan Exposure of all Lenders.
"RESPONSIBLE OFFICER" means, with respect to any Person, its
chief executive officer, president, or any vice president, managing director,
treasurer, controller or other officer of such Person having substantially the
same authority and responsibility; PROVIDED that, with respect to compliance
with financial covenants, "RESPONSIBLE OFFICER" means the chief financial
officer, treasurer or controller of Company, or any other officer of Company
having substantially the same authority and responsibility.
"S&P" means Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇ Companies, and any successor thereto.
"S&P RATING" means, at any time, the rating issued by S&P and
then in effect with respect to Company's senior secured debt.
"RESTRICTED ACQUISITION SUBSIDIARY" means (i) a Subsidiary of
Company that is or was (a) first created or acquired by Company or any of its
Subsidiaries after the Closing Date in connection with an Acquisition and (b)
designated as a "Restricted Acquisition Subsidiary" pursuant to a written notice
delivered by Company to Administrative Agent prior to the consummation of such
Acquisition; PROVIDED that Company may, by written notice to Administrative
Agent, redesignate any Restricted Acquisition Subsidiary as a Subsidiary that is
not a Restricted Acquisition Subsidiary so long as, after giving effect to the
aggregate principal amount of any outstanding Indebtedness of such Restricted
Acquisition Subsidiary that was originally incurred pursuant to subsection
7.1(viii) as if such Indebtedness were being incurred by such Restricted
Acquisition Subsidiary as of the date of such redesignation, no Event of Default
or Potential Event of Default shall have occurred and be continuing or would
result therefrom and (ii) any Subsidiary of a Restricted Acquisition Subsidiary
described in the foregoing clause (i).
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
of Company now or hereafter
27
outstanding, except a dividend payable solely in shares of common stock of
Company or payable solely in shares of that class of stock to the holders of
that class, (ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any shares of
any class of stock of Company now or hereafter outstanding, (iii) any payment
made to retire, or to obtain the surrender of, any outstanding warrants, options
or other rights to acquire shares of any class of stock of Company now or
hereafter outstanding, and (iv) any payment or prepayment of principal of, or
redemption, purchase, retirement, defeasance (including in-substance or legal
defeasance), sinking fund or similar payment with respect to, any Subordinated
Indebtedness.
"REVOLVING LENDER" means a Lender that has a Revolving Loan
Commitment and/or that has an outstanding Revolving Loan.
"REVOLVING LOAN COMMITMENT" means the commitment of a Revolving
Lender to make Revolving Loans to Company pursuant to subsection 2.1A(iii), and
"REVOLVING LOAN COMMITMENTS" means such commitments of all Revolving Lenders in
the aggregate.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" means the fifth
anniversary of the Closing Date or such earlier date on which the Revolving Loan
Commitments may be terminated pursuant to subsection 2.4B or Section 8.
"REVOLVING LOAN EXPOSURE" means, with respect to any Revolving
Lender as of any date of determination (i) prior to the termination of the
Revolving Loan Commitments, that Revolving Lender's Revolving Loan Commitment
and (ii) after the termination of the Revolving Loan Commitments, the sum,
without duplication, of (a) the aggregate outstanding principal amount of the
Revolving Loans of that Revolving Lender PLUS (b) in the event that Revolving
Lender is an Issuing Lender, the aggregate Letter of Credit Usage in respect of
all Letters of Credit issued by that Lender (in each case net of any
participations purchased by other Revolving Lenders in such Letters of Credit or
any unreimbursed drawings thereunder) PLUS (c) the aggregate amount of all
participations purchased by that Revolving Lender in any outstanding Letters of
Credit or any unreimbursed drawings under any Letters of Credit PLUS (d) in the
case of Swing Line Lender, the aggregate outstanding principal amount of all
Swing Line Loans (net of any participations therein purchased by other Lenders)
PLUS (e) the aggregate amount of all participations purchased by that Revolving
Lender in any outstanding Swing Line Loans, in each case without duplication.
"REVOLVING LOANS" means the Loans made by Revolving Lenders to
Company pursuant to subsection 2.1A(iii).
"REVOLVING NOTES" means (i) any promissory notes of Company
issued pursuant to subsection 2.1E to evidence the Revolving Loans of any
Lenders and (ii) any promissory notes issued by Company pursuant to the last
sentence of subsection 10.1B(i) in connection with assignments of the Revolving
Loan Commitments and Revolving Loans of any Lenders, in each case substantially
in the form of EXHIBIT VI annexed hereto, as they may be amended, supplemented
or otherwise modified from time to time.
28
"SEC" means the Securities and Exchange Commission or any
successor thereto.
"SECURITIES" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"STANDBY LETTER OF CREDIT" means any standby letter of credit or
similar instrument issued for the purpose of supporting (i) Indebtedness of
Company or any of its Subsidiaries in respect of industrial revenue or
development bonds or financings, (ii) workers' compensation liabilities of
Company or any of its Subsidiaries, (iii) the obligations of third party
insurers of Company or any of its Subsidiaries arising by virtue of the laws of
any jurisdiction requiring third party insurers, (iv) obligations with respect
to Capital Leases or operating leases of Company or any of its Subsidiaries, and
(v) other lawful corporate purposes of Company or any of its Subsidiaries.
"SUBORDINATED INDEBTEDNESS" means any Indebtedness of Company
incurred from time to time and subordinated in right of payment to the
Obligations.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof; PROVIDED that, with respect to Company or any of its Subsidiaries, the
term "Subsidiary" shall not include any Unrestricted Subsidiary or any special
purpose entity that is a party to any Accounts Receivable Facility; and
PROVIDED, FURTHER that Company shall be permitted from time to time to (i)
designate any Unrestricted Subsidiary as a "Subsidiary" of Company hereunder by
written notice to Administrative Agent, so long as (a) no Event of Default or
Potential Event of Default shall have occurred and be continuing or shall be
caused thereby and (b) the provisions of subsection 6.7 shall have been complied
with in respect of such newly-designated Subsidiary, or (ii) designate any
Subsidiary of Company, or any Person that, as a result of the acquisition after
the Closing Date by Company or any of its Subsidiaries of any equity Securities
of such Person, would otherwise be a Subsidiary of Company hereunder, to be an
"Unrestricted Subsidiary" by written notice to Administrative Agent so long as
(1) after giving effect to such designation as an Investment in such
Unrestricted Subsidiary (calculated as an amount equal to the sum of (X) the net
worth of the Subsidiary or other Person so designated (the
29
"DESIGNATED PERSON") immediately prior to such designation (such net worth to be
calculated, in the case of a Designated Person that is a Subsidiary of Company,
without regard to any Obligations of such Subsidiary under the Subsidiary
Guaranty) and (Y) the aggregate principal amount of any Indebtedness owed by the
Designated Person to Company or any of its Subsidiaries immediately prior to
such designation, all calculated, except as set forth in the parenthetical to
clause (X) above, on a consolidated basis in accordance with GAAP), Company
shall be in compliance with the provisions of subsection 7.3(vi), (2) no
Subsidiary is a Subsidiary of such Unrestricted Subsidiary, (3) on or promptly
after the date of designation of such Person as such Unrestricted Subsidiary,
such Unrestricted Subsidiary shall enter into a tax sharing agreement with
Company that provides (as determined by Company in good faith) for an
appropriate allocation of tax liabilities and benefits, (4) no recourse
whatsoever (whether by contract or by operation of law or otherwise) may be had
to Company or any of its Subsidiaries or any of their respective properties or
assets for any obligations of such Unrestricted Subsidiary except to the extent
that the aggregate maximum amount of such recourse constitutes (X) an Investment
permitted under subsection 7.3(vi) or (Y) a Guarantee Obligation permitted under
subsection 7.4(vii) and (5) no Event of Default or Potential Event of Default
shall have occurred and be continuing or shall be caused thereby.
"SUBSIDIARY GUARANTOR" means any Domestic Subsidiary that
executes and delivers a counterpart of the Subsidiary Guaranty on the Closing
Date or from time to time thereafter pursuant to subsection 6.7.
"SUBSIDIARY GUARANTY" means the Subsidiary Guaranty executed and
delivered by existing Domestic Subsidiaries on the Closing Date and executed and
delivered or to be executed and delivered by additional Domestic Subsidiaries
from time to time thereafter in accordance with subsection 6.7A, substantially
in the form of EXHIBIT XV annexed hereto, as such Subsidiary Guaranty may
thereafter be amended, supplemented or otherwise modified from time to time.
"SWING LINE LENDER" means DB, or any Person serving as a
successor Administrative Agent hereunder, in its capacity as Swing Line Lender
hereunder.
"SWING LINE LOAN COMMITMENT" means the commitment of Swing Line
Lender to make Swing Line Loans to Company pursuant to subsection 2.1A(iv).
"SWING LINE LOANS" means the Loans made by Swing Line Lender to
Company pursuant to subsection 2.1A(iv).
"SWING LINE NOTE" means (i) any promissory note of Company issued
pursuant to subsection 2.1E to evidence the Swing Line Loans of Swing Line
Lender and (ii) any promissory note issued by Company to any successor
Administrative Agent and Swing Line Lender pursuant to the last sentence of
subsection 9.5B, in each case substantially in the form of EXHIBIT VII annexed
hereto, as it may be amended, supplemented or otherwise modified from time to
time.
"SYNDICATION AGENT" has the meaning assigned to that term in the
introduction to this Agreement.
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"TAX" or "TAXES" means any present or future tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature and whatever called,
by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld
or assessed; PROVIDED that "Tax on the overall net income" of a Person shall be
construed as a reference to a tax imposed by the jurisdiction in which that
Person is organized or in which that Person's principal office (and/or, in the
case of a Lender, its Lending Office) is located or in which that Person
(and/or, in the case of a Lender, its Lending Office) is deemed to be doing
business on all or part of the net income, profits or gains (whether worldwide,
or only insofar as such income, profits or gains are considered to arise in or
to relate to a particular jurisdiction, or otherwise) of that Person (and/or, in
the case of a Lender, its Lending Office).
"TERM LOANS" means, collectively, the Tranche A Term Loans and
the Tranche B Term Loans.
"THIRD PARTY" means any Person other than Company or any of its
Subsidiaries.
"TOTAL UTILIZATION OF REVOLVING LOAN COMMITMENTS" means, as at
any date of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans (other than Revolving Loans made for the purpose of
repaying any Refunded Swing Line Loans or reimbursing the applicable Issuing
Lender for any amount drawn under any Letter of Credit but not yet so applied)
PLUS (ii) the aggregate principal amount of all outstanding Swing Line Loans
PLUS (iii) the Letter of Credit Usage.
"TRANCHE A LENDER" means a Lender that has Tranche A Term Loan
Exposure.
"TRANCHE A TERM LOAN COMMITMENT" means the commitment of a
Tranche A Lender to make Tranche A Term Loans to Company pursuant to subsection
2.1A(i), and "TRANCHE A TERM LOAN COMMITMENTS" means such commitments of all
Lenders in the aggregate.
"TRANCHE A TERM LOAN EXPOSURE" means, with respect to any Lender
as of any date of determination, the outstanding principal amount of the Tranche
A Term Loans of that Lender.
"TRANCHE A TERM LOANS" means the Loans made as Tranche A Term
Loans by Lenders to Company pursuant to subsection 2.1A(i).
"TRANCHE A TERM NOTES" means any promissory notes of Company
issued pursuant to subsection 2.1E to evidence the Tranche A Term Loans of any
Lenders, substantially in the form of EXHIBIT IV annexed hereto, as they may be
amended, supplemented or otherwise modified from time to time.
"TRANCHE B LENDER" means a Lender that has Tranche B Term Loan
Exposure.
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"TRANCHE B TERM LOAN COMMITMENT" means the commitment of a Lender
to make a Tranche B Term Loan to Company pursuant to subsection 2.1A(ii), and
"TRANCHE B TERM LOAN COMMITMENTS" means such commitments of all Lenders in the
aggregate.
"TRANCHE B TERM LOAN EXPOSURE" means, with respect to any Lender
as of any date of determination, the outstanding principal amount of the Tranche
B Term Loan of that Lender.
"TRANCHE B TERM LOANS" means the Loans made as Tranche B Term
Loans by Lenders to Company pursuant to subsection 2.1A(ii).
"TRANCHE B TERM NOTES" means any promissory notes of Company
issued pursuant to subsection 2.1E to evidence the Tranche B Term Loans of any
Lenders, substantially in the form of EXHIBIT V annexed hereto, as they may be
amended, supplemented or otherwise modified from time to time.
"TRANSACTION COSTS" means the fees, costs and expenses payable by
Company in connection with the transactions contemplated by the Loan Documents
on or before the Closing Date.
"TRIGGER DATE" means the first date on which the S&P Rating is
BB- or lower or the ▇▇▇▇▇'▇ Rating is Ba3 or lower.
"TYPE" means, as applied to any Loan, whether such Loan is a
Tranche A Term Loan, a Tranche B Term Loan, a Revolving Loan or a Swing Line
Loan.
"UCC" means the Uniform Commercial Code (or any similar or
equivalent legislation) as in effect in any applicable jurisdiction.
"UNFUNDED PENSION LIABILITY" means, with respect to any Pension
Plan, the amount of unfunded benefit liabilities of such Pension Plan as defined
in Section 4001(a)(18) of ERISA.
"UNREINVESTED ASSET SALE PROCEEDS" means that portion, if any, of
any Net Asset Sale Proceeds that shall not have been reinvested by Company and
its Subsidiaries in the business of Company and its Subsidiaries within one year
after the receipt by Company or any of its Subsidiaries of such Net Asset Sale
Proceeds.
"UNRESTRICTED SUBSIDIARY" means any corporate Subsidiary of
Company (determined without giving effect to the provisos set forth in the
definition of "Subsidiary") that is designated by Company as an "Unrestricted
Subsidiary" as provided in the definition of "Subsidiary".
"VOTING STOCK" means, with respect to any Person, Securities of
such Person having ordinary voting power (without regard to the occurrence of
any contingency) to vote in the election of directors of such Person.
32
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF
CALCULATIONS UNDER AGREEMENT.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. All computations made for purposes of
determining any Applicable Leverage Ratio or any amount of Consolidated Excess
Cash Flow or for purposes of determining compliance with any of the provisions
of Section 7, including any related computations of amounts represented by terms
defined in subsection 1.1, shall utilize accounting principles and policies in
effect at the time of preparation of, and consistent with those used to prepare,
the historical financial statements of Company and its Subsidiaries described in
subsection 5.3. Financial statements and other information required to be
delivered by Company to Lenders pursuant to clauses (i), (ii) and (ix) of
subsection 6.1 shall be prepared in accordance with GAAP as in effect at the
time of such preparation; PROVIDED that if any of the computations described in
the immediately preceding sentence shall at any time utilize accounting
principles and policies different from those utilized in preparing the financial
statements referred to in this sentence, such financial statements shall be
delivered together with reconciliation worksheets showing in reasonable detail
the differences that would result in such computations if the accounting
principles and policies utilized in preparing such financial statements were
utilized in making such computations.
1.3 OTHER DEFINITIONAL PROVISIONS AND RULES OF CONSTRUCTION.
A. Any of the terms defined herein may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference.
B. References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Agreement unless otherwise
specifically provided.
C. The use in any of the Loan Documents of the word
"include" or "including", when following any general statement, term or matter,
shall not be construed to limit such statement, term or matter to the specific
items or matters set forth immediately following such word or to similar items
or matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; MAKING OF LOANS; THE REGISTER; NOTES.
A. COMMITMENTS. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Company
herein set forth, each Lender hereby severally agrees to make the Loans as
described in subsections 2.1A(i), 2.1A(ii) and 2.1A(iii) and Swing Line Lender
hereby agrees to make the Swing Line Loans as described in subsection 2.1A(iv).
33
(i) TRANCHE A TERM LOANS. Each Lender that has a Tranche A
Term Loan Commitment severally agrees to lend to Company on the Closing
Date an amount equal to its Pro Rata Share of the aggregate amount of the
Tranche A Term Loan Commitments to be used for the purposes identified in
subsection 2.5A. The amount of each Lender's Tranche A Term Loan
Commitment is set forth opposite its name on SCHEDULE 2.1 annexed hereto
and the aggregate amount of the Tranche A Term Loan Commitments is
$125,000,000; PROVIDED that the Tranche A Term Loan Commitments of
Lenders shall be adjusted to give effect to any assignments of the
Tranche A Term Loan Commitments pursuant to subsection 10.1B. Tranche A
Term Loans shall be made as a single drawing on the Closing Date. Amounts
borrowed under this subsection 2.1A(i) and subsequently repaid or prepaid
may not be reborrowed.
(ii) TRANCHE B TERM LOANS. Subject to the proviso contained in
the penultimate sentence of this paragraph (ii), each Lender that has a
Tranche B Term Loan Commitment severally agrees to lend to Company on the
Closing Date an amount equal to its Pro Rata Share of the aggregate
amount of the Tranche B Term Loan Commitments to be used for the purposes
identified in subsection 2.5A. The amount of each Lender's Tranche B Term
Loan Commitment is set forth opposite its name on SCHEDULE 2.1 annexed
hereto and the aggregate amount of the Tranche B Term Loan Commitments is
$500,000,000; PROVIDED that the Tranche B Term Loan Commitments of
Lenders shall be adjusted to give effect to any assignments of the
Tranche B Term Loan Commitments pursuant to subsection 10.1B. Tranche B
Term Loans shall be made as a single drawing on the Closing Date;
PROVIDED that up to $150,000,000 (the "DELAYED DRAW TERM B LOANS") of the
Tranche B Term Loans may be borrowed by Company at any time during the
period commencing on the Closing Date and ending on the Delayed Draw Term
B Loan Commitment Termination Date for the purposes identified in
subsection 2.5C. Amounts borrowed under this subsection 2.1A(ii) and
subsequently repaid or prepaid may not be reborrowed.
(iii) REVOLVING LOANS. Each Revolving Lender severally agrees,
subject to the limitations set forth below with respect to the maximum
amount of Revolving Loans permitted to be outstanding from time to time,
to lend to Company from time to time during the period from the Closing
Date to but excluding the Revolving Loan Commitment Termination Date an
aggregate amount not exceeding its Pro Rata Share of the aggregate amount
of the Revolving Loan Commitments to be used for the purposes identified
in subsection 2.5B. The original amount of each Revolving Lender's
Revolving Loan Commitment is set forth opposite its name on SCHEDULE 2.1
annexed hereto and the aggregate original amount of the Revolving Loan
Commitments is $125,000,000; PROVIDED that the Revolving Loan Commitments
of Revolving Lenders shall be adjusted to give effect to any assignments
of the Revolving Loan Commitments pursuant to subsection 10.1B and shall
be reduced from time to time by the amount of any reductions thereto made
pursuant to subsection 2.4B(ii). Each Revolving Lender's Revolving Loan
Commitment shall expire on the Revolving Loan Commitment Termination Date
and all Revolving Loans and all other amounts owed hereunder with respect
to the Revolving Loans and
34
the Revolving Loan Commitments shall be paid in full no later than that
date; Amounts borrowed under this subsection 2.1A(iii) may be repaid and
reborrowed to but excluding the Revolving Loan Commitment Termination
Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Revolving Loans and the Revolving Loan Commitments shall be
subject to the limitation that in no event shall the Total Utilization of
Revolving Loan Commitments at any time exceed the Revolving Loan Commitments
then in effect.
(iv) SWING LINE LOANS.
(a) GENERAL PROVISIONS. Swing Line Lender hereby agrees,
subject to the limitations set forth below with respect to the
maximum amount of Swing Line Loans permitted to be outstanding
from time to time, to make a portion of the Revolving Loan
Commitments available to Company from time to time during the
period from the Closing Date to but excluding the Revolving Loan
Commitment Termination Date by making Swing Line Loans to Company
in an aggregate amount not exceeding the amount of the Swing Line
Loan Commitment to be used for the purposes identified in
subsection 2.5B, notwithstanding the fact that such Swing Line
Loans, when aggregated with Swing Line Lender's outstanding
Revolving Loans and Swing Line Lender's Pro Rata Share of the
Letter of Credit Usage then in effect, may exceed Swing Line
Lender's Revolving Loan Commitment. The original amount of the
Swing Line Loan Commitment is $20,000,000; PROVIDED that any
reduction of the Revolving Loan Commitments made pursuant to
subsection 2.4B(ii) that reduces the aggregate Revolving Loan
Commitments to an amount less than the then current amount of the
Swing Line Loan Commitment shall result in an automatic
corresponding reduction of the Swing Line Loan Commitment to the
amount of the Revolving Loan Commitments, as so reduced, without
any further action on the part of Company, Administrative Agent
or Swing Line Lender. The Swing Line Loan Commitment shall expire
on the Revolving Loan Commitment Termination Date and all Swing
Line Loans and all other amounts owed hereunder with respect to
the Swing Line Loans shall be paid in full no later than that
date. Amounts borrowed under this subsection 2.1A(iv) may be
repaid and reborrowed to but excluding the Revolving Loan
Commitment Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment
shall be subject to the limitation that in no event shall the Total
Utilization of Revolving Loan Commitments at any time exceed the
Revolving Loan Commitments then in effect.
(b) SWING LINE LOAN PREPAYMENT WITH PROCEEDS OF
REVOLVING LOANS. With respect to any Swing Line Loans that have
not been voluntarily prepaid by Company pursuant to subsection
2.4B(i), Swing Line Lender may, at any time in its sole and
absolute discretion, deliver to Administrative Agent
35
(with a copy to Company), no later than 11:00 A.M. (
New York City
time) on the first Business Day in advance of the proposed
Funding Date, a notice (which shall be deemed to be a Notice of
Borrowing given by Company) requesting Revolving Lenders to make
Revolving Loans that are Base Rate Loans on such Funding Date in
an amount equal to the amount of such Swing Line Loans (the
"REFUNDED SWING LINE LOANS") outstanding on the date such notice
is given which Swing Line Lender requests Revolving Lenders to
prepay. Anything contained in this Agreement to the contrary
notwithstanding, (i) the proceeds of such Revolving Loans made by
Revolving Lenders other than Swing Line Lender shall be
immediately delivered by Administrative Agent to Swing Line
Lender (and not to Company) and applied to repay a corresponding
portion of the Refunded Swing Line Loans and (ii) on the day such
Revolving Loans are made, Swing Line Lender's Pro Rata Share of
the Refunded Swing Line Loans shall be deemed to be paid with the
proceeds of a Revolving Loan made by Swing Line Lender, and such
portion of the Swing Line Loans deemed to be so paid shall no
longer be outstanding as Swing Line Loans and shall no longer be
due under the Swing Line Note, if any, of Swing Line Lender but
shall instead constitute part of Swing Line Lender's outstanding
Revolving Loans and shall be due under the Revolving Note, if
any, of Swing Line Lender. If any portion of any such amount paid
(or deemed to be paid) to Swing Line Lender should be recovered
by or on behalf of Company from Swing Line Lender in bankruptcy,
by assignment for the benefit of creditors or otherwise, the loss
of the amount so recovered shall be ratably shared among all
Lenders in the manner contemplated by subsection 10.5.
(c) SWING LINE LOAN ASSIGNMENTS. If for any reason (1)
Revolving Loans are not made upon the request of Swing Line
Lender as provided in the immediately preceding paragraph in an
amount sufficient to repay any amounts owed to Swing Line Lender
in respect of any outstanding Swing Line Loans or (2) the
Revolving Loan Commitments are terminated at a time when any
Swing Line Loans are outstanding, each Revolving Lender shall be
deemed to, and hereby agrees to, have purchased a participation
in such outstanding Swing Line Loans in an amount equal to its
Pro Rata Share (calculated immediately prior to such termination
of the Revolving Loan Commitments) of the unpaid amount of such
Swing Line Loans together with accrued interest thereon. Upon one
Business Day's notice from Swing Line Lender, each Revolving
Lender shall deliver to Swing Line Lender an amount equal to its
respective participation in same day funds at the Funding and
Payment Office. In order to further evidence such participation
(and without prejudice to the effectiveness of the participation
provisions set forth above), each Revolving Lender agrees to
enter into a separate participation agreement at the request of
Swing Line Lender in form and substance reasonably satisfactory
to such Revolving Lender and Swing Line Lender. In the event any
Revolving Lender fails to make available to Swing Line Lender the
amount of such Revolving Lender's participation as provided in
this paragraph, Swing Line Lender shall be entitled to recover
such amount on
36
demand from such Revolving Lender together with interest thereon
at the Federal Funds Effective Rate for three Business Days and
thereafter at the Base Rate. In the event Swing Line Lender
receives a payment of any amount in which other Revolving Lenders
have purchased participations as provided in this paragraph,
Swing Line Lender shall promptly distribute to each such other
Revolving Lender its Pro Rata Share of such payment.
Anything contained herein to the contrary notwithstanding, each
Revolving Lender's obligation to make Revolving Loans for the
purpose of repaying any Refunded Swing Line Loans pursuant to the
second preceding paragraph and each Revolving Lender's obligation
to purchase a participation in any unpaid Swing Line Loans
pursuant to the immediately preceding paragraph 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 Revolving Lender may have against Swing
Line Lender, Company or any other Person for any reason
whatsoever; (b) the occurrence or continuation of an Event of
Default or a Potential Event of Default; (c) any adverse change
in the business, operations, properties, assets, condition
(financial or otherwise) or prospects of Company or any of its
Subsidiaries; (d) any breach of this Agreement or any other Loan
Document by any party thereto; or (e) any other circumstance,
happening or event whatsoever, whether or not similar to any of
the foregoing; PROVIDED that such obligations of each Revolving
Lender are subject to the condition that (X) Swing Line Lender
believed in good faith that all conditions under Section 4 to the
making of the applicable Refunded Swing Line Loans or other
unpaid Swing Line Loans, as the case may be, were satisfied at
the time such Refunded Swing Line Loans or unpaid Swing Line
Loans were made or (Y) the satisfaction of any such condition not
satisfied had been waived in accordance with subsection 10.6
prior to or at the time such Refunded Swing Line Loans or other
unpaid Swing Line Loans were made.
B. BORROWING MECHANICS. Tranche A Term Loans, Tranche B Term
Loans or Revolving Loans (other than Revolving Loans made pursuant to a request
by Swing Line Lender pursuant to subsection 2.1A(iv) for the purpose of repaying
any Refunded Swing Line Loans or Revolving Loans made pursuant to subsection
3.3B for the purpose of reimbursing any Issuing Lender for the amount of a
drawing under a Letter of Credit issued by it) made on any Funding Date shall be
in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000
in excess of that amount. Swing Line Loans made on any Funding Date shall be in
an aggregate minimum amount of $500,000 and integral multiples of $100,000 in
excess of that amount. Whenever Company desires that Lenders make Term Loans or
Revolving Loans to Company it shall deliver to Administrative Agent a duly
executed Notice of Borrowing no later than 11:00 A.M. (
New York City time) at
least three Business Days in advance of the proposed Funding Date (in the case
of a LIBOR Loan) or at least one Business Day in advance of the proposed Funding
Date (in the case of a Base Rate Loan). Whenever Company desires that Swing Line
Lender make a Swing Line Loan, it shall deliver to Administrative Agent a Notice
of Borrowing no later than 1:00 P.M. (
New York City time) on the proposed
Funding Date. The Notice of Borrowing shall specify (i) the
37
proposed Funding Date (which shall be a Business Day), (ii) the amount and type
of Loans requested, (iii) in the case of Swing Line Loans, that such Loans shall
be Base Rate Loans, (iv) in the case of Revolving Loans, whether such Loans
shall be Base Rate Loans or LIBOR Loans, and (v) in the case of any Loans
requested to be made as LIBOR Loans, the initial Interest Period requested
therefor; PROVIDED HOWEVER that Loans requested to be made on the Closing Date
shall be Base Rate Loans; and PROVIDED FURTHER that during the period commencing
on and including the Closing Date and ending on the earlier of (a) the Delayed
Draw Term B Loan Commitment Termination Date and (b) the date on which the
Delayed Draw Term B Loans are funded (the "DELAYED DRAW TERM B LOAN PERIOD"),
Company may only request Tranche B Term Loans that are Base Rate Loans or LIBOR
Loans with an Interest Period of one month (unless Administrative Agent shall,
in its sole discretion, otherwise consent). Term Loans and Revolving Loans may
be continued as or converted into Base Rate Loans and LIBOR Loans in the manner
provided in subsection 2.2D. In lieu of delivering the above-described Notice of
Borrowing, Company may give Administrative Agent telephonic notice by the
required time of any proposed borrowing under this subsection 2.1B; PROVIDED
that such notice shall be promptly confirmed in writing by delivery of a duly
executed Notice of Borrowing to Administrative Agent on or before the applicable
Funding Date.
Neither Administrative Agent nor any Lender shall incur any
liability to Company in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on behalf of Company or
for otherwise acting in good faith under this subsection 2.1B, and upon funding
of Loans by Lenders in accordance with this Agreement pursuant to any such
telephonic notice, Company shall have effected Loans hereunder.
Company shall notify Administrative Agent prior to the funding of
any Loans in the event that any of the matters to which Company is required to
certify in the applicable Notice of Borrowing is no longer true and correct as
of the applicable Funding Date, and the acceptance by Company of the proceeds of
any Loans shall constitute a re-certification by Company, as of the applicable
Funding Date, as to matters to which Company are required to certify in the
applicable Notice of Borrowing.
C. DISBURSEMENT OF FUNDS. All Term Loans and Revolving Loans
under this Agreement shall be made by Lenders simultaneously and proportionately
to their respective Pro Rata Shares, it being understood that neither
Administrative Agent nor any Lender shall be responsible for any default by any
other Lender in that other Lender's obligation to make a Loan requested
hereunder nor shall the Commitment of any Lender to make the particular Type of
Loan requested be increased or decreased as a result of a default by any other
Lender in that other Lender's obligation to make a Loan requested hereunder.
Promptly after receipt by Administrative Agent of a Notice of Borrowing pursuant
to subsection 2.1B (or telephonic notice in lieu thereof), Administrative Agent
shall notify each Lender or Swing Line Lender, as the case may be, of the
proposed borrowing. Each Lender shall make the amount of its Loan available to
Administrative Agent not later than 1:00 P.M. (
New York City time) on the
applicable Funding Date, and Swing Line Lender shall make the amount of its
Swing Line Loan available to Administrative Agent not later than 2:00 P.M. (New
York City time) on the applicable Funding Date, in each case in same day funds
in
38
Dollars, at the Funding and Payment Office. Except as provided in subsection
2.1A(iv) or subsection 3.3B with respect to Revolving Loans used to repay
Refunded Swing Line Loans or to reimburse any Issuing Lender for the amount of a
drawing under a Letter of Credit issued by it, upon satisfaction or waiver of
the conditions precedent specified in subsections 4.1 (in the case of Loans made
on the Closing Date) and 4.2 (in the case of all Loans), Administrative Agent
shall make the proceeds of such Loans available to Company on the applicable
Funding Date by causing an amount of same day funds in Dollars equal to the
proceeds of all such Loans received by Administrative Agent from Lenders or
Swing Line Lender, as the case may be, to be credited to the account of Company
at the Funding and Payment Office.
Unless Administrative Agent shall have been notified by any
Lender prior to the Funding Date for any Loans that such Lender does not intend
to make available to Administrative Agent the amount of such Lender's Loan
requested on such Funding Date, Administrative Agent may assume that such Lender
has made such amount available to Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall not be obligated to,
make available to Company a corresponding amount on such Funding Date. If such
corresponding amount is not in fact made available to Administrative Agent by
such Lender, Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest thereon,
for each day from such Funding Date until the date such amount is paid to
Administrative Agent, at the Federal Funds Effective Rate for three Business
Days and thereafter at the Base Rate. If such Lender does not pay such
corresponding amount forthwith upon Administrative Agent's demand therefor,
Administrative Agent shall promptly notify Company, and Company shall
immediately pay such corresponding amount to Administrative Agent together with
interest thereon, for each day from such Funding Date until the date such amount
is paid to Administrative Agent, at the rate payable under this Agreement for
Base Rate Loans. Nothing in this subsection 2.1C shall be deemed to relieve any
Lender from its obligation to fulfill its Commitments hereunder or to prejudice
any rights that Company may have against any Lender as a result of any default
by such Lender hereunder.
D. THE REGISTER.
(i) Administrative Agent shall maintain, at its address
referred to in subsection 10.7, a register for the recordation of the
names and addresses of Lenders and the Commitments and Loans (whether or
not separately evidenced by one or more Notes) of each Lender from time
to time (the "REGISTER"). The Register shall be available for inspection
by Company or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(ii) Administrative Agent shall record in the Register the
Tranche A Term Loan Commitment, Tranche B Term Loan Commitment, and
Revolving Loan Commitment and the Tranche A Term Loans, Tranche B Term
Loan, and Revolving Loans from time to time of each Lender, the Swing
Line Loan Commitment and the Swing Line Loans from time to time of Swing
Line Lender, and each repayment or prepayment in respect of the principal
amount of the Tranche A Term Loans, Tranche B Term Loan, or Revolving
Loans of each Lender or the Swing Line Loans
39
of Swing Line Lender. Any such recordation shall be conclusive and
binding on Company and each Lender, absent clearly demonstrable error;
PROVIDED that failure to make any such recordation, or any error in such
recordation, shall not affect any Lender's Commitments or Company's
Obligations in respect of any applicable Loans.
(iii) Each Lender shall record on its internal records
(including any Notes held by such Lender) the amount of each Tranche A
Term Loan, Tranche B Term Loan, and Revolving Loan made by it and each
payment in respect thereof. Any such recordation shall be conclusive and
binding on Company, absent clearly demonstrable error; PROVIDED that
failure to make any such recordation, or any error in such recordation,
shall not affect any Lender's Commitments or Company's Obligations in
respect of any applicable Loans; and PROVIDED, FURTHER that in the event
of any inconsistency between the Register and any Lender's records, the
recordations in the Register shall govern.
(iv) Company, Administrative Agent and Lenders shall deem and
treat the Persons listed as Lenders in the Register as the holders and
owners of the corresponding Commitments and Loans listed therein for all
purposes hereof, and no assignment or transfer of any such Commitment or
Loan shall be effective, in each case unless and until an Assignment
Agreement effecting the assignment or transfer thereof shall have been
accepted by Administrative Agent and recorded in the Register as provided
in subsection 10.1B(ii). Prior to such recordation, all amounts owed with
respect to the applicable Commitment or Loan shall be owed to the Lender
listed in the Register as the owner thereof, and any request, authority
or consent of any Person who, at the time of making such request or
giving such authority or consent, is listed in the Register as a Lender
shall be conclusive and binding on any subsequent holder, assignee or
transferee of the corresponding Commitments or Loans.
(v) Company hereby designates DB to serve as its agent solely
for purposes of maintaining the Register as provided in this subsection
2.1D, and Company hereby agrees that, to the extent DB serves in such
capacity, DB and its officers, directors, employees, agents and
affiliates shall constitute Indemnitees for all purposes under subsection
10.3.
E. OPTIONAL NOTES. Upon the request of any Lender made
through the Administrative Agent at any time (solely to facilitate the pledge or
assignment of such Lender's applicable Loans pursuant to subsection 10.1D),
Company shall execute and deliver to such Lender (and/or, if applicable and if
so specified in such notice, to any Person who is an assignee of such Lender
pursuant to subsection 10.1), promptly after Company's receipt of such notice, a
promissory note or promissory notes to evidence such Lender's Tranche A Term
Loans, Tranche B Term Loans, Revolving Loans or Swing Line Loans, as the case
may be, substantially in the form of EXHIBIT IV, EXHIBIT V, EXHIBIT VI or
EXHIBIT VII annexed hereto, respectively, with appropriate insertions.
40
2.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. Subject to the provisions of
subsections 2.6 and 2.7, each Term Loan and each Revolving Loan shall bear
interest on the unpaid principal amount thereof from the date made through
maturity (whether by acceleration or otherwise) at a rate determined by
reference to the Base Rate or LIBOR. Subject to the provisions of subsection
2.7, each Swing Line Loan shall bear interest on the unpaid principal amount
thereof from the date made through maturity (whether by acceleration or
otherwise) at a rate determined by reference to the Base Rate. The applicable
basis for determining the rate of interest with respect to any Term Loan or any
Revolving Loan shall be selected by Company initially at the time a Notice of
Borrowing is given with respect to such Loan pursuant to subsection 2.1B, and
the basis for determining the interest rate with respect to any Term Loan or any
Revolving Loan may be changed from time to time pursuant to subsection 2.2D.
Subject to the last proviso to the first paragraph of subsection 2.2D, if on any
day a Term Loan or Revolving Loan is outstanding with respect to which notice
has not been delivered to Administrative Agent in accordance with the terms of
this Agreement specifying the applicable basis for determining the rate of
interest, then for that day that Loan shall bear interest determined by
reference to the Base Rate.
(i) Subject to the provisions of subsections 2.2E and 2.7,
the Tranche A Term Loans and the Revolving Loans shall bear interest
through maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base
Rate PLUS the Applicable Tranche A Base Rate Margin; or
(b) if a LIBOR Loan, then at the sum of LIBOR PLUS the
Applicable Tranche A LIBOR Margin.
(ii) Subject to the provisions of subsections 2.2E and 2.7,
the Tranche B Term Loans shall bear interest through maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base
Rate PLUS the Applicable Tranche B Base Rate Margin; or
(b) if a LIBOR Loan, then at the sum of LIBOR PLUS the
Applicable Tranche B LIBOR Margin.
(iii) Subject to the provisions of subsections 2.2E and 2.7,
the Swing Line Loans shall bear interest through maturity at the sum of
the Base Rate PLUS the Applicable Tranche A Base Rate Margin MINUS the
Applicable Commitment Fee Percentage.
B. INTEREST PERIODS. In connection with each LIBOR Loan,
Company may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"INTEREST PERIOD") to be applicable to such Loan, which Interest Period shall
be, at Company's option, either a one, two, three or six month period or, if
deposits in the London interbank market are generally available for such
41
period to all Lenders making the applicable Loans (as determined by such Lenders
in good faith based on prevailing market conditions), a nine or twelve month
period; PROVIDED that:
(i) the initial Interest Period for any LIBOR Loan shall
commence on the Funding Date in respect of such Loan, in the case of a
Loan initially made as a LIBOR Loan, or on the date specified in the
applicable Notice of Conversion/Continuation, in the case of a Loan
converted to a LIBOR Loan;
(ii) in the case of immediately successive Interest Periods
applicable to a LIBOR Loan continued as such pursuant to a Notice of
Conversion/Continuation, each successive Interest Period shall commence
on the day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; PROVIDED that, if any Interest Period would
otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clauses (v) and (vi) of this subsection 2.2B,
end on the last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the
Tranche A Term Loans shall extend beyond the fifth anniversary of the
Closing Date, no Interest Period with respect to any portion of the
Tranche B Term Loans shall extend beyond the seventh anniversary of the
Closing Date, and no Interest Period with respect to any portion of the
Revolving Loans shall extend beyond the Revolving Loan Commitment
Termination Date;
(vi) no Interest Period with respect to any portion of the
Tranche A Term Loans or Tranche B Term Loans shall extend beyond a date
on which Company is required to make a scheduled payment of principal of
the Tranche A Term Loans or Tranche B Term Loans, as the case may be,
unless the sum of (a) the aggregate principal amount of Tranche A Term
Loans or Tranche B Term Loans, as the case may be, that are Base Rate
Loans PLUS (b) the aggregate principal amount of Tranche A Term Loans or
Tranche B Term Loans, as the case may be, that are LIBOR Loans with
Interest Periods expiring on or before such date equals or exceeds the
principal amount required to be paid on the Tranche A Term Loans or
Tranche B Term Loans, as the case may be, on such date;
(vii) there shall be no more than 20 Interest Periods
outstanding at any time; and
(viii) in the event Company fails to specify an Interest Period
for any LIBOR Loan in the applicable Notice of Borrowing or Notice of
Conversion/Continuation, Company shall be deemed to have selected an
Interest Period of one month.
42
C. INTEREST PAYMENTS. Subject to the provisions of
subsection 2.2E, interest on each Loan shall be payable in arrears on and to
each Interest Payment Date applicable to that Loan, upon any prepayment of that
Loan (to the extent accrued on the amount being prepaid) and at maturity
(including final maturity); PROVIDED that in the event any Swing Line Loans or
any Revolving Loans that are Base Rate Loans are prepaid pursuant to subsection
2.4B, interest accrued on such Swing Line Loans or Revolving Loans through the
date of such prepayment shall be payable on the next succeeding Interest Payment
Date applicable to Base Rate Loans (or, if earlier, at final maturity).
D. CONVERSION OR CONTINUATION. Subject to the provisions of
subsection 2.6, (i) Company shall have the option to convert at any time all or
any part of its outstanding Tranche A Term Loans, Tranche B Term Loans or
Revolving Loans equal to $5,000,000 and integral multiples of $500,000 in excess
of that amount from Loans bearing interest at a rate determined by reference to
one basis to Loans bearing interest at a rate determined by reference to an
alternative basis and (ii) upon the expiration of any Interest Period applicable
to a LIBOR Loan, Company shall have the option to continue as a LIBOR Loan all
or any portion of such Loan equal to $5,000,000 and integral multiples of
$500,000 in excess of that amount; PROVIDED, HOWEVER, that if, upon the
expiration of any Interest Period applicable to any LIBOR Loan, Company shall
have failed to give a Notice of Conversion/Continuation with respect to such
LIBOR Loan in accordance with this subsection 2.2D, Company shall be deemed to
have given a timely Notice of Conversion/Continuation electing to continue such
LIBOR Loan as a LIBOR Loan with an Interest Period of one month.
Company shall deliver a duly executed Notice of
Conversion/Continuation to Administrative Agent no later than 11:00 A.M. (New
York City time) at least one Business Day in advance of the proposed conversion
date (in the case of a conversion to a Base Rate Loan) and at least three
Business Days in advance of the proposed conversion/continuation date (in the
case of a conversion to, or a continuation of, a LIBOR Loan). A Notice of
Conversion/Continuation shall specify (i) the proposed conversion/continuation
date (which shall be a Business Day), (ii) the amount and type of the Loan to be
converted/continued, (iii) the nature of the proposed conversion/continuation,
(iv) in the case of a conversion to, or a continuation of, a LIBOR Loan, the
requested Interest Period, and (v) in the case of a conversion to, or a
continuation of, a LIBOR Loan, that no Potential Event of Default or Event of
Default has occurred and is continuing; PROVIDED however, that during the
Delayed Draw Term B Loan Period, Company may only request Tranche B Term Loans
be converted to or continued as Base Rate Loans or LIBOR Loans with an Interest
Period of one month (unless Administrative Agent shall, in its sole discretion,
otherwise consent). In lieu of delivering the above-described Notice of
Conversion/Continuation, Company may give Administrative Agent telephonic notice
by the required time of any proposed conversion/continuation under this
subsection 2.2D; PROVIDED that such notice shall be promptly confirmed in
writing by delivery of a duly executed Notice of Conversion/Continuation to
Administrative Agent on or before the proposed conversion/continuation date.
Upon receipt of written or telephonic notice of any proposed
conversion/continuation under this subsection 2.2D, Administrative Agent shall
promptly transmit such notice by telefacsimile or telephone to each Lender.
43
Neither Administrative Agent nor any Lender shall incur any
liability to Company in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to act on behalf of Company or for
otherwise acting in good faith under this subsection 2.2D, and upon conversion
or continuation of the applicable basis for determining the interest rate with
respect to any Loans in accordance with this Agreement pursuant to any such
telephonic notice, Company shall have effected a conversion or continuation, as
the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6F,
a Notice of Conversion/Continuation for conversion to, or continuation of, a
LIBOR Loan (or telephonic notice in lieu thereof) shall be irrevocable on and
after the related Interest Rate Determination Date, and Company shall be bound
to effect a conversion or continuation in accordance therewith.
E. POST-MATURITY INTEREST. Any principal payments on the
Loans not paid when due and, to the extent permitted by applicable law, any
interest payments on the Loans or any fees or other amounts owed hereunder not
paid when due, in each case whether at stated maturity, by notice of prepayment,
by acceleration or otherwise, shall thereafter bear interest (including
post-petition interest in any proceeding under the Bankruptcy Code or other
applicable bankruptcy laws) payable on demand at a rate which is 2% per annum in
excess of the interest rate otherwise payable under this Agreement for Base Rate
Loans of the applicable Type (any such fees and other amounts being deemed for
such purposes to bear interest on the same basis as Revolving Loans). Payment or
acceptance of the increased rates of interest provided for in this subsection
2.2E is not a permitted alternative to timely payment and shall not constitute a
waiver of any Event of Default or otherwise prejudice or limit any rights or
remedies of Administrative Agent or any Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans shall be
computed (i) in the case of Base Rate Loans bearing interest at a rate
determined by reference to the Prime Rate, on the basis of a 365-day or 366-day
year, as the case may be and (ii) in the case of LIBOR Loans and Base Rate Loans
bearing interest at a rate determined by reference to the Federal Funds
Effective Rate, on the basis of a 360-day year, in each case for the actual
number of days elapsed in the period during which it accrues. In computing
interest on any Loan, the date of the making of such Loan or the first day of an
Interest Period applicable to such Loan or, with respect to a Base Rate Loan
being converted from a LIBOR Loan, the date of conversion of such LIBOR Loan to
such Base Rate Loan, as the case may be, shall be included, and the date of
payment of such Loan or the expiration date of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted to a LIBOR Loan,
the date of conversion of such Base Rate Loan to such LIBOR Loan, as the case
may be, shall be excluded; PROVIDED that if a Loan is repaid on the same day on
which it is made, one day's interest shall be paid on that Loan.
2.3 FEES.
A. REVOLVING LOAN COMMITMENT FEES. Company agrees to pay to
Administrative Agent, for distribution to each Revolving Lender in proportion to
that
44
Lender's Pro Rata Share, commitment fees for the period from and including the
Closing Date to and excluding the Revolving Loan Commitment Termination Date
equal to the average of the daily excess of the Revolving Loan Commitments over
the sum of (i) the aggregate principal amount of outstanding Revolving Loans
(but not any outstanding Swing Line Loans) PLUS (ii) the Letter of Credit Usage
MULTIPLIED BY the Applicable Commitment Fee Percentage, such commitment fees to
be calculated on the basis of a 365-day or 366-day year, as the case may be, and
the actual number of days elapsed and to be payable quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year, commencing on the
first such date to occur after the Closing Date, and on the Revolving Loan
Commitment Termination Date.
B. DELAYED DRAW TERM B LOAN COMMITMENT FEES. Company agrees
to pay to Administrative Agent, for distribution to each Tranche B Lender in
proportion to that Tranche B Lender's Pro Rata Share, commitment fees for the
period from and including the Closing Date to and excluding the earlier to occur
of the Funding Date of the Delayed Draw Term B Loans or the Delayed Draw Term B
Loan Commitment Termination Date in an amount equal to the average of the daily
excess of the Delayed Draw Term B Loan Commitments over the aggregate principal
amount of the outstanding Delayed Draw Term B Loans MULTIPLIED BY the Applicable
Commitment Fee Percentage, such commitment fees to be calculated on the basis of
a 365-day or 366-day year, as the case may be, and the actual number of days
elapsed and to be payable on the earlier to occur of the Funding Date of the
Delayed Draw Term B Loans or the Delayed Draw Term B Loan Commitment Termination
Date.
C. OTHER FEES. Company agrees to pay to Administrative
Agent, Syndication Agent and Lenders, as applicable, such other fees in the
amounts and at the times separately agreed upon between Company and
Administrative Agent or Syndication Agent, as the case may be.
2.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN
COMMITMENTS; GENERAL PROVISIONS REGARDING PAYMENTS; APPLICATION
OF PROCEEDS OF COLLATERAL AND PAYMENTS UNDER THE GUARANTIES.
A. SCHEDULED PAYMENTS OF TERM LOANS.
(i) SCHEDULED PAYMENTS OF TRANCHE A TERM LOANS. Company shall
make principal payments on the Tranche A Term Loans in installments on
the dates and in the amounts set forth below:
DATE SCHEDULED REPAYMENT
---- -------------------
December 31, 2003 $ 2,500,000
June 30, 2004 $ 2,500,000
December 31, 2004 $ 7,500,000
June 30, 2005 $ 7,500,000
45
DATE SCHEDULED REPAYMENT
---- -------------------
December 31, 2005 $ 12,500,000
June 30, 2006 $ 12,500,000
December 31, 2006 $ 17,500,000
June 30, 2007 $ 17,500,000
December 31, 2007 $ 22,500,000
May 6, 2008 $ 22,500,000
TOTAL: $ 125,000,000
; PROVIDED that the scheduled installments of principal of the Tranche A Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Tranche A Term Loans in accordance with subsection
2.4B(iv); and PROVIDED, FURTHER that the Tranche A Term Loans and all other
amounts owed hereunder with respect to the Tranche A Term Loans shall be paid in
full no later than the fifth anniversary of the Closing Date, and the final
installment payable by Company in respect of the Tranche A Term Loans on such
date shall be in an amount, if such amount is different from that specified
above, sufficient to repay all amounts owing by Company under this Agreement
with respect to the Tranche A Term Loans.
(ii) SCHEDULED PAYMENTS OF TRANCHE B TERM LOANS. Company shall
make principal payments on the Tranche B Term Loans in installments on
the dates and in the amounts set forth below:
DATE SCHEDULED REPAYMENT
---- -------------------
December 31, 2003 $ 2,500,000
June 30, 2004 $ 2,500,000
December 31, 2004 $ 2,500,000
June 30, 2005 $ 2,500,000
December 31, 2005 $ 2,500,000
June 30, 2006 $ 2,500,000
December 31, 2006 $ 2,500,000
June 30, 2007 $ 2,500,000
December 31, 2007 $ 2,500,000
June 30, 2008 $ 2,500,000
December 31, 2008 $ 2,500,000
June 30, 2009 $ 2,500,000
46
DATE SCHEDULED REPAYMENT
---- -------------------
December 31, 2009 $ 2,500,000
May 6, 2010 $ 467,500,000
TOTAL: $ 500,000,000
; PROVIDED that the scheduled installments of principal of the Tranche B Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Tranche B Term Loans in accordance with subsection
2.4B(iv); and PROVIDED, FURTHER that the Tranche B Term Loans and all other
amounts owed hereunder with respect to the Tranche B Term Loans shall be paid in
full no later than the seventh anniversary of the Closing Date, and the final
installment payable by Company in respect of the Tranche B Term Loans on such
date shall be in an amount, if such amount is different from that specified
above, sufficient to repay all amounts owing by Company under this Agreement
with respect to the Tranche B Term Loans.
B. PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN COMMITMENTS.
(i) VOLUNTARY PREPAYMENTS. Company may, upon written or
telephonic notice to Administrative Agent at or prior to 1:00 P.M. (New
York City time) on the date of prepayment, which notice, if telephonic,
shall be promptly confirmed in writing, at any time and from time to time
prepay any Swing Line Loan on any Business Day in whole or in part in an
aggregate minimum amount of $500,000 and integral multiples of $100,000
in excess of that amount. Company may, upon not less than one Business
Day's prior written or telephonic notice, in the case of Base Rate Loans,
and three Business Days' prior written or telephonic notice, in the case
of LIBOR Loans, in each case given to Administrative Agent by 12:00 Noon
(New York City time) on the date required and, if given by telephone,
promptly confirmed in writing to Administrative Agent (which original
written or telephonic notice Administrative Agent will promptly transmit
by telefacsimile or telephone to each Lender), at any time and from time
to time prepay any Tranche A Term Loans, Tranche B Term Loans or
Revolving Loans on any Business Day in whole or in part in an aggregate
minimum amount of $5,000,000 and integral multiples of $500,000 in excess
of that amount. Notice of prepayment having been given as aforesaid, the
principal amount of the Loans specified in such notice shall become due
and payable on the prepayment date specified therein. Any such voluntary
prepayment shall be applied as specified in subsection 2.4B(iv).
(ii) VOLUNTARY REDUCTIONS OF REVOLVING LOAN COMMITMENTS.
Company may, upon not less than three Business Days' prior written or
telephonic notice confirmed in writing to Administrative Agent (which
original written or telephonic notice Administrative Agent will promptly
transmit by telefacsimile or telephone to each Revolving Lender), at any
time and from time to time terminate in whole or permanently reduce in
part, without premium or penalty, the Revolving Loan Commitments in an
amount up to the amount by which the Revolving Loan
47
Commitments exceed the Total Utilization of Revolving Loan Commitments at
the time of such proposed termination or reduction; PROVIDED that any
such partial reduction of the Revolving Loan Commitments shall be in an
aggregate minimum amount of $1,000,000 and integral multiples of $500,000
in excess of that amount. Company's notice to Administrative Agent shall
designate the date (which shall be a Business Day) of such termination or
reduction and the amount of any partial reduction, and such termination
or reduction of the Revolving Loan Commitments shall be effective on the
date specified in Company's notice and shall reduce the Revolving Loan
Commitment of each Revolving Lender proportionately to its Pro Rata
Share.
(iii) MANDATORY PREPAYMENTS. Subject to the provisions of
subsection 2.4B(iv)(d), the Term Loans shall be prepaid in the amounts
and under the circumstances set forth below, all such prepayments to be
applied as set forth below or as more specifically provided in subsection
2.4B(iv):
(a) PREPAYMENTS FROM NET ASSET SALE PROCEEDS. No later
than the fifth Business Day following the date on which any Net
Asset Sale Proceeds become Unreinvested Asset Sale Proceeds,
Company shall prepay its outstanding Term Loans in an aggregate
amount equal to such Unreinvested Asset Sale Proceeds; PROVIDED
that, Company may in its sole discretion elect, pursuant to a
written notice given by Company to Administrative Agent
describing such election, to postpone any mandatory prepayments
otherwise required to be made by Company pursuant to this
subsection 2.4B(iii)(a) (any such prepayment, until the time
actually made, being "POSTPONED PREPAYMENTS") until such time as
the aggregate amount of Postponed Prepayments equals $5,000,000.
(b) PREPAYMENTS FROM CONSOLIDATED EXCESS CASH FLOW. In
the event that (i) the Consolidated Leverage Ratio shall be equal
to or greater than 3.25:1.00 as of the last day of any Fiscal
Year (commencing with Fiscal Year ending December 31, 2003) and
(ii) there shall be Consolidated Excess Cash Flow for such Fiscal
Year, Company shall, no later than the date on which Company is
required to deliver audited financial statements with respect to
such Fiscal Year pursuant to subsection 6.1(ii), prepay its
outstanding Term Loans in an aggregate amount equal to 50% of
such Consolidated Excess Cash Flow (the remaining 50% of such
Consolidated Excess Cash Flow being "RETAINED EXCESS CASH FLOW").
(c) PREPAYMENTS AND REDUCTIONS DUE TO ISSUANCE OF
INDEBTEDNESS. On the date of receipt of the Net Indebtedness
Proceeds from the issuance of any Indebtedness of Company or any
of its Subsidiaries after the Closing Date, other than
Indebtedness permitted pursuant to subsection 7.1, Company shall
prepay the outstanding Term Loans in an aggregate amount equal to
such Net Indebtedness Proceeds.
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(d) PREPAYMENTS FROM THE ACCOUNTS RECEIVABLE FACILITY.
At any time that the Accounts Receivable Facility Amount for all
Accounts Receivable Facilities is increased to an amount greater
than the highest aggregate Accounts Receivable Facility Amount
prior thereto and is increased to an amount greater than
$100,000,000 in the aggregate (such amount, the "EXCESS AMOUNT"),
Company shall apply such Excess Amount to prepay the Term Loans
in an aggregate amount equal to such Excess Amount.
(e) PREPAYMENTS DUE TO REDUCTIONS OR RESTRICTIONS OF
REVOLVING LOAN COMMITMENTS. Company shall from time to time
prepay FIRST the Swing Line Loans and SECOND the Revolving Loans
to the extent necessary so that the Total Utilization of
Revolving Loan Commitments shall not at any time exceed the
Revolving Loan Commitments then in effect.
(iv) Application of Prepayments.
(a) APPLICATION OF VOLUNTARY PREPAYMENTS BY TYPE OF
LOANS AND ORDER OF MATURITY. Any voluntary prepayments pursuant
to subsection 2.4B(i) shall be applied as specified by Company in
the applicable notice of prepayment; PROVIDED that in the event
Company fails to specify the Loans of Company to which any such
prepayment shall be applied, such prepayment shall be applied
FIRST to repay outstanding Swing Line Loans to the full extent
thereof, SECOND to repay outstanding Revolving Loans to the full
extent thereof, and THIRD to repay outstanding Term Loans to the
full extent thereof. Any voluntary prepayment of the Term Loans
pursuant to subsection 2.4B(i) shall be applied to prepay the
Tranche A Term Loans and the Tranche B Term Loans in the manner
specified by Company and to reduce the scheduled installments of
principal of the Tranche A Term Loans and the Tranche B Term
Loans set forth in subsections 2.4A(i) and/or 2.4A(ii), as the
case may be, in such order as Company shall direct.
(b) APPLICATION OF MANDATORY PREPAYMENTS OF TERM LOANS
TO TRANCHE A TERM LOANS AND TRANCHE B TERM LOANS AND THE
SCHEDULED INSTALLMENTS OF PRINCIPAL THEREOF. Any mandatory
prepayments of the Term Loans pursuant to subsection 2.4B(iii)
shall be applied to prepay the Tranche A Term Loans and the
Tranche B Term Loans on a pro rata basis (in accordance with the
respective outstanding principal amounts thereof). Any mandatory
prepayment of the Tranche A Term Loans or the Tranche B Term
Loans shall be applied FIRST to reduce the next two succeeding
scheduled installments of principal of the Tranche A Term Loans
or the Tranche B Term Loans, as the case may be, set forth in
subsection 2.4A(i) or 2.4A(ii), respectively, that are unpaid at
the time of such prepayment in the forward order of maturity and
SECOND to reduce each remaining unpaid scheduled installment of
principal of the Tranche A Term Loans or the Tranche B Term
Loans, as the case may be, on a pro rata basis (in accordance
with the respective unpaid principal amounts thereof).
49
(c) WAIVER OF CERTAIN MANDATORY PREPAYMENTS. Anything
contained herein to the contrary notwithstanding, so long as any
Tranche A Term Loans are outstanding, in the event Company is
required to make any mandatory prepayment (a "WAIVABLE MANDATORY
PREPAYMENT") of the Tranche B Term Loans pursuant to subsection
2.4B(iii), (V) Company may, by written or telephonic notice
(promptly confirmed in writing) given to Administrative Agent not
less than five Business Days prior to the date (the "REQUIRED
PREPAYMENT DATE") on which Company is required to make such
Waivable Mandatory Prepayment, elect to offer each Lender holding
an outstanding Tranche B Term Loan the option to refuse such
Lender's Pro Rata Share of such Waivable Mandatory Prepayment,
(W) in the event Company gives such notice to Administrative
Agent, Administrative Agent will promptly notify each such Lender
of the amount of such Lender's Pro Rata Share of such Waivable
Mandatory Prepayment and such Lender's option to refuse such
amount, (X) each such Lender may exercise such option by giving
written notice to Company and Administrative Agent of its
election to do so on or before the first Business Day (the
"CUTOFF DATE") prior to the Required Prepayment Date, (Y) on the
Required Prepayment Date, Company shall pay to Administrative
Agent an amount equal to the sum of (1) that portion of the
Waivable Mandatory Prepayment payable to those Lenders that have
elected not to exercise such option (it being understood that any
Lender which does not notify Company and Administrative Agent of
its election to exercise such option on or before the Cutoff Date
shall be deemed to have elected, as of the Cutoff Date, not to
exercise such option), which amount shall be applied to prepay
the Tranche B Term Loans of such Lenders in accordance with
subsection 2.4B(iv)(b) PLUS (2) 50% of that portion (the "WAIVED
PORTION") of the Waivable Mandatory Prepayment otherwise payable
to those Lenders that have elected to exercise such option, which
amount shall be applied to prepay the Tranche A Term Loans in the
same manner as voluntary prepayments of the Tranche A Term Loans
are applied pursuant to subsection 2.4B(iv)(a), and (Z) Company
shall be entitled to retain the remaining 50% of the Waived
Portion (such amount being a "RETAINED PREPAYMENT") to be used
for general corporate purposes.
(d) APPLICATION OF PREPAYMENTS OF LOANS TO BASE RATE
LOANS AND LIBOR LOANS; OPTION TO DEFER CERTAIN MANDATORY
PREPAYMENTS OF LIBOR LOANS. Considering Tranche A Term Loans,
Tranche B Term Loans and Revolving Loans being prepaid
separately, any prepayment thereof shall be applied first to Base
Rate Loans to the full extent thereof before application to LIBOR
Loans, in each case in a manner which minimizes the amount of any
payments required to be made by Company pursuant to subsection
2.6D; provided that, anything contained in this Agreement to the
contrary notwithstanding, in the event that (1) the application
of any mandatory prepayment pursuant to subsection 2.4B(iii) in
accordance with the foregoing provisions of this subsection
2.4B(iv) would result in the prepayment of all or any portion of
a LIBOR Loan prior to the end of the Interest Period applicable
thereto, (2) the remaining term of such Interest Period is less
than three
50
months, and (3) no Potential Event of Default or Event of Default
shall have occurred and be continuing, Company shall have the
option, by giving written notice (or telephonic notice promptly
confirmed in writing) to Administrative Agent of its election to
do so on or before the first Business Day prior to the date on
which such prepayment would otherwise be required to be made, to
defer the making of such prepayment until the last day of such
Interest Period or such earlier date as Company may specify in
such notice.
C. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) MANNER AND TIME OF PAYMENT. All payments by Company of
principal, interest, fees and other Obligations hereunder and under the
Notes shall be made in Dollars in same day funds, without defense, setoff
or counterclaim, free of any restriction or condition, and delivered to
Administrative Agent not later than 3:00 P.M. (New York City time), on
the date due at the Funding and Payment Office for the account of
Lenders; funds received by Administrative Agent after that time on such
due date shall be deemed to have been paid by Company on the next
succeeding Business Day.
(ii) APPLICATION OF PAYMENTS TO PRINCIPAL AND INTEREST. Except
as provided in subsection 2.2C, all payments in respect of the principal
amount of any Loan shall include payment of accrued interest on the
principal amount being repaid or prepaid, and all such payments (and, in
any event, any payments in respect of any Loan on a date when interest is
due and payable with respect to such Loan) shall be applied to the
payment of interest before application to principal.
(iii) APPORTIONMENT OF PAYMENTS. Aggregate principal and
interest payments in respect of Term Loans and Revolving Loans shall be
apportioned among all outstanding Loans to which such payments relate, in
each case proportionately to Lenders' respective Pro Rata Shares.
Administrative Agent shall promptly distribute to each Lender, at its
Lending Office or at such other address as such Lender may request, its
Pro Rata Share of all such payments received by Administrative Agent and
the commitment fees of such Lender when received by Administrative Agent
pursuant to subsection 2.3. Notwithstanding the foregoing provisions of
this subsection 2.4C(iii), if, pursuant to the provisions of subsection
2.6C, any Notice of Conversion/Continuation is withdrawn as to any
Affected Lender or if any Affected Lender makes Base Rate Loans in lieu
of its Pro Rata Share of any LIBOR Loans, Administrative Agent shall give
effect thereto in apportioning payments received thereafter.
(iv) PAYMENTS ON BUSINESS DAYS. Whenever any payment to be
made hereunder shall be stated to be due on a day that is not a Business
Day, such payment shall be made on the next succeeding Business Day and
such extension of time shall be included in the computation of the
payment of interest hereunder or of the commitment fees hereunder, as the
case may be.
51
D. APPLICATION OF PROCEEDS OF COLLATERAL AND PAYMENTS UNDER
THE GUARANTIES.
(i) APPLICATION OF PROCEEDS OF COLLATERAL. Subject to the
provisions of the Intercreditor Agreement, all proceeds received by
Collateral Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral under any Collateral
Document may, in the discretion of Collateral Agent, be held by
Collateral Agent as Collateral for, and/or (then or at any time
thereafter) applied in full or in part by Collateral Agent against, the
applicable Secured Obligations (as defined in such Collateral Document)
in the following order of priority:
(a) To the payment of all costs and expenses of such
sale, collection or other realization, including reasonable
compensation to Collateral Agent and its agents and counsel, and
all other expenses, liabilities and advances made or incurred by
Collateral Agent in connection therewith, and all amounts for
which Collateral Agent is entitled to indemnification under such
Collateral Document and all advances made by Collateral Agent
thereunder for the account of the applicable Loan Party, and to
the payment of all costs and expenses paid or incurred by
Collateral Agent in connection with the exercise of any right or
remedy under such Collateral Document, all in accordance with the
terms of this Agreement and such Collateral Document;
(b) thereafter, to the extent of any excess such
proceeds, to the payment of all other such Secured Obligations
for the ratable benefit of the holders thereof; and
(c) thereafter, to the extent of any excess such
proceeds, to the payment to or upon the order of such Loan Party
or to whosoever may be lawfully entitled to receive the same or
as a court of competent jurisdiction may direct.
(ii) APPLICATION OF PAYMENTS UNDER THE GUARANTIES. All
payments received by Collateral Agent under the Guaranties shall be
applied promptly from time to time by Collateral Agent in the following
order of priority:
(a) To the payment of the costs and expenses of any
collection or other realization under the Guaranties, including
reasonable compensation to Collateral Agent and its agents and
counsel, and all expenses, liabilities and advances made or
incurred by Collateral Agent in connection therewith, all in
accordance with the terms of this Agreement and such Guaranty;
(b) thereafter, to the extent of any excess such
payments, to the payment of all other Guarantied Obligations (as
defined in such Guaranty) for the ratable benefit of the holders
thereof; and
(c) thereafter, to the extent of any excess such
payments, to the payment to the applicable Guarantor or to
whosoever may be lawfully entitled to receive the same or as a
court of competent jurisdiction may direct.
52
2.5 USE OF PROCEEDS.
A. TERM LOANS. The proceeds of the Term Loans shall be
applied by Company to fund the Financing Requirements.
B. REVOLVING LOANS; SWING LINE LOANS. The proceeds of any
Revolving Loans and any Swing Line Loans shall be applied by Company for general
corporate purposes.
C. DELAYED DRAW TERM B LOANS. The proceeds of any Delayed
Draw Term B Loans shall be used to fund Financing Requirements not funded on the
Closing Date.
2.6 SPECIAL PROVISIONS GOVERNING LIBOR LOANS.
Notwithstanding any other provision of this Agreement to the
contrary, the following provisions shall govern with respect to LIBOR Loans as
to the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as
practicable after 10:00 A.M. (New York City time), on each Interest Rate
Determination Date, Administrative Agent shall determine (which determination
shall, absent clearly demonstrable error, be final, conclusive and binding upon
all parties) the interest rate that shall apply to LIBOR Loans for which an
interest rate is then being determined for the applicable Interest Period and
shall promptly give notice thereof (in writing or by telephone confirmed in
writing) to Company and each Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the
event that Administrative Agent shall have reasonably determined (which
determination shall, absent clearly demonstrable error, be final and conclusive
and binding upon all parties hereto), on any Interest Rate Determination Date
with respect to any LIBOR Loans, that by reason of circumstances affecting the
London interbank market, adequate and fair means do not exist for ascertaining
the interest rate applicable to such Loans on the basis provided for in the
definition of LIBOR, Administrative Agent shall on such date give notice (by
telefacsimile or by telephone confirmed in writing) to Company and each Lender
of such determination, whereupon (i) no Loans may be made as, or converted to,
LIBOR Loans until such time as Administrative Agent notifies Company and Lenders
that the circumstances giving rise to such notice no longer exist (which notice
Administrative Agent shall give at such time as such circumstances no longer
exist) and (ii) any Notice of Borrowing or Notice of Conversion/Continuation
given by Company with respect to the Loans in respect of which such
determination was made shall be deemed to be rescinded by Company.
C. ILLEGALITY OR IMPRACTICABILITY OF LIBOR LOANS. In the
event that on any date any Lender shall have reasonably determined (which
determination shall be made only after consultation with Company and
Administrative Agent, it being understood that any such determination so made
shall, absent clearly demonstrable error, be final and conclusive and binding
upon all parties hereto) that the making, maintaining or continuation of its
LIBOR Loans (i) has become unlawful as a result of compliance by such Lender in
good faith with any law, treaty, governmental rule, regulation, guideline or
order (or would conflict with any such treaty, governmental rule, regulation,
guideline or order not having the force of law
53
even though the failure to comply therewith would not be unlawful) or (ii) has
become impracticable as a result of contingencies occurring after the date of
this Agreement which materially and adversely affect the London interbank market
then, and in any such event, such Lender shall be an "AFFECTED LENDER" and it
shall on that day give notice (by telefacsimile or by telephone confirmed in
writing) to Company and Administrative Agent of such determination (which notice
Administrative Agent shall promptly transmit to each other Lender). Thereafter
(a) the obligation of the Affected Lender to make Loans as, or to convert Loans
to, LIBOR Loans shall be suspended until such notice shall be withdrawn by the
Affected Lender, (b) to the extent such determination by the Affected Lender
relates to a LIBOR Loan then being requested by Company pursuant to a Notice of
Borrowing or a Notice of Conversion/Continuation, the Affected Lender shall make
such Loan as (or convert such Loan to, as the case may be) a Base Rate Loan, (c)
the Affected Lender's obligation to maintain its outstanding LIBOR Loans (the
"AFFECTED LOANS") shall be terminated at the earlier to occur of the expiration
of the Interest Period then in effect with respect to the Affected Loans or when
required by law, and (d) any Affected Loans shall automatically convert into
Base Rate Loans on the date of such termination. Notwithstanding the foregoing,
to the extent a determination by an Affected Lender as described above relates
to a LIBOR Loan then being requested by Company pursuant to a Notice of
Borrowing or a Notice of Conversion/Continuation, Company shall have the option,
subject to the provisions of subsection 2.6D, to rescind such Notice of
Borrowing or Notice of Conversion/Continuation as to all Lenders by giving
notice (by telefacsimile or by telephone confirmed in writing) to Administrative
Agent of such rescission on the date on which the Affected Lender gives notice
of its determination as described above (which notice of rescission
Administrative Agent shall promptly transmit to each other Lender). Except as
provided in the immediately preceding sentence, nothing in this subsection 2.6C
shall affect the obligation of any Lender other than an Affected Lender to make
or maintain Loans as, or to convert Loans to, LIBOR Loans in accordance with the
terms of this Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST
PERIODS. Company shall compensate each Lender, upon written request by that
Lender (which request shall set forth in reasonable detail the basis for
requesting such amounts), for all reasonable losses, costs and expenses
sustained by that Lender (including losses, costs and expenses actually
sustained by that Lender in connection with the liquidation or re-employment of
deposits or other funds acquired by it to make or carry the subject LIBOR Loans
but excluding any loss of anticipated profits): (i) if for any reason (other
than a default by that Lender or Administrative Agent) a borrowing of any LIBOR
Loan by Company does not occur on a date specified therefor in a Notice of
Borrowing or a telephonic request for borrowing, or a conversion to or
continuation of any LIBOR Loan by Company does not occur on a date specified
therefor in a Notice of Conversion/Continuation or a telephonic request for
conversion or continuation, (ii) if any prepayment (including any prepayment
pursuant to subsection 2.4B(i)) or other principal payment or any conversion of
Company's LIBOR Loans occurs on a date prior to the last day of an Interest
Period applicable to that Loan, or (iii) if any prepayment of Company's LIBOR
Loans is not made on any date specified in a notice of prepayment given by
Company.
54
E. BOOKING OF LIBOR LOANS. Any Lender may make, carry or
transfer LIBOR Loans at, to, or for the account of any of its branch offices or
the office of an Affiliate of that Lender.
F. LIBOR LOANS AFTER DEFAULT. If, after the occurrence of
and during the continuation of a Potential Event of Default or an Event of
Default, Administrative Agent or Requisite Lenders have determined in its or
their sole discretion not to permit the making or continuation of any Loans as,
or the conversion of any Loans to, LIBOR Loans and Administrative Agent has so
notified Company in writing (i) Company may not elect to have any Loans be made
as or converted to LIBOR Loans or elect to have any outstanding LIBOR Loans
continued as such after the expiration of the Interest Periods then in effect
for such LIBOR Loans and (ii) subject to the provisions of subsection 2.6D, any
Notice of Borrowing or Notice of Conversion/Continuation given by Company with
respect to a requested borrowing or conversion/continuation in respect of LIBOR
Loans that has not yet occurred shall be deemed to be rescinded by Company.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to
the provisions of subsection 2.7B (which shall be controlling with respect to
the matters covered thereby), in the event that any Lender shall reasonably
determine (which determination shall, absent clearly demonstrable error, be
final and conclusive and binding upon all parties hereto) that the introduction
or adoption (after the Closing Date) of any law, treaty or governmental rule,
regulation or order, or that any change (after the Closing Date) in any law,
treaty or governmental rule, regulation or order or in the interpretation,
administration or application thereof, or that any determination (after the
Closing Date) by a court or governmental authority, or that compliance by such
Lender with any guideline, request or directive issued or made (after the
Closing Date) by any central bank or other governmental or quasi-governmental
authority (whether or not having the force of law), in any such case:
(i) subjects such Lender (or its Lending Office) to any
additional Tax (excluding (x) any Tax on the overall net income of such
Lender and (y) any Tax imposed on any Agent or any Lender as result of a
present or former connection between the jurisdiction imposing such Taxes
and such Lender (except a present connection arising solely from such
Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced any Loan Documents))
with respect to this Agreement or any of its obligations hereunder or any
payments to such Lender (or its Lending Office) of principal, interest,
fees or any other amount payable hereunder (any such non-excluded Tax, a
"NON-EXCLUDED TAX");
(ii) imposes, modifies or holds applicable any reserve
(including any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement against assets held by, or deposits or other liabilities in
or for the account of, or advances or loans by, or other credit extended
by, or any other acquisition of funds by, any office of such Lender; or
55
(iii) imposes any other condition (other than with respect to a
Tax matter) on or affecting such Lender (or its Lending Office) or its
obligations hereunder or the London interbank market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining its Loans or Commitments or agreeing to
issue, issuing or maintaining any Letter of Credit or agreeing to purchase,
purchasing or maintaining any participation therein or to reduce any amount
received or receivable by such Lender (or its Lending Office) with respect
thereto; then, in any such case, Company shall pay to such Lender, promptly
after receipt of the statement referred to in the next sentence, such additional
amount or amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its reasonable discretion
shall determine) as may be necessary to compensate such Lender for any such
increased cost or reduction in amounts received or receivable hereunder. Such
Lender shall deliver to Company (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis for calculating the
additional amounts owed to such Lender under this subsection 2.7A, which
statement shall be conclusive and binding upon all parties hereto absent clearly
demonstrable error.
B. WITHHOLDING OF TAXES.
(i) PAYMENTS TO BE FREE AND CLEAR. All sums payable by
Company under this Agreement and the other Loan Documents shall (except
to the extent required by law) be paid free and clear of, and without any
deduction or withholding on account of, any Non-Excluded Tax imposed,
levied, collected, withheld or assessed by or within the United States of
America or any political subdivision in or of the United States of
America or any other jurisdiction from or to which a payment is made by
or on behalf of Company or by any federation or organization of which the
United States of America or any such jurisdiction is a member at the time
of payment.
(ii) GROSSING-UP OF PAYMENTS. If Company or any other Person
is required by law to make any deduction or withholding on account of any
such Non-Excluded Tax from any sum paid or payable by Company to
Administrative Agent or any Lender under any of the Loan Documents:
(a) Company shall notify Administrative Agent of any
such requirement or any change in any such requirement as soon as
Company becomes aware of it;
(b) Company shall pay any such Non-Excluded Tax before
the date on which penalties attach thereto, such payment to be
made (if the liability to pay is imposed on Company) for its own
account or (if that liability is imposed on Administrative Agent
or such Lender, as the case may be) on behalf of and in the name
of Administrative Agent or such Lender;
(c) the sum payable by Company in respect of which the
relevant deduction, withholding or payment is required shall be
increased to the extent
56
necessary to ensure that, after the making of that deduction,
withholding or payment, Administrative Agent or such Lender, as
the case may be, receives on the due date a net sum equal to what
it would have received had no such deduction, withholding or
payment been required or made; and
(d) within 30 days after paying any sum from which it is
required by law to make any deduction or withholding, and within
30 days after the due date of payment of any Non-Excluded Tax
which it is required by clause (b) above to pay, Company shall
deliver to Administrative Agent evidence satisfactory to the
other affected parties of such deduction, withholding or payment
and of the remittance thereof to the relevant taxing or other
authority;
PROVIDED that no such additional amount shall be required to be paid to
any Lender under clause (c) above except to the extent that any change
after the Closing Date (in the case of each Lender listed on the
signature pages hereof) or after the date of the Assignment Agreement
pursuant to which such Lender became a Lender (in the case of each other
Lender) in any such requirement for a deduction, withholding or payment
as is mentioned therein shall result in an increase in the rate of such
deduction, withholding or payment from that in effect at the date of this
Agreement or at the date of such Assignment Agreement, as the case may
be, in respect of payments to such Lender.
(iii) Evidence of Exemption from U.S. Withholding Tax.
(a) Each Lender that is organized under the laws of any
jurisdiction other than the United States or any state or other
political subdivision thereof (for purposes of this subsection
2.7B(iii), a "NON-US LENDER") shall deliver to Administrative
Agent for transmission to Company, on or prior to the Closing
Date (in the case of each Lender listed on the signature pages
hereof) or on or prior to the date of the Assignment Agreement
pursuant to which it becomes a Lender (in the case of each other
Lender), and at such other times as may be necessary in the
determination of Company or Administrative Agent (each in the
reasonable exercise of its discretion), (1) two original copies
of Internal Revenue Service Form W-8BEN or W-8ECI (or any
successor forms), properly completed and duly executed by such
Lender, or, in the case of a Non-US Lender claiming exemption
from United States federal withholding tax under Section 871(h)
or 881(c) of the Internal Revenue Code with respect to payments
of "portfolio interest", a form W-8BEN, and, in the case of a
Lender that has certified in writing to Administrative Agent that
it is not a "bank" (as defined in Section 881(c)(3)(A) of the
Internal Revenue Code), a certificate of such Lender certifying
that such Lender is not (i) a "bank" for purposes of Section
881(c) of the Internal Revenue Code, (ii) a ten-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of Company or (iii) a controlled foreign
corporation related to Company (within the meaning of Section
864(d)(4) of the Internal Revenue Code) in each case together
with any other certificate or statement of exemption required
under the Internal Revenue Code or the regulations issued
57
thereunder to establish that such Lender is not subject to United
States withholding tax with respect to any payments to such
Lender of interest payable under any of the Loan Documents.
(b) Each Non-US 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 Administrative Agent and to
Company, on or prior to the Closing Date (in the case of each
Lender listed on the signature pages hereof), on or prior to the
date of the Assignment Agreement pursuant to which it becomes a
Lender (in the case of each other Lender), or on such later date
when such 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 Company
or Administrative Agent (each in the reasonable exercise of its
discretion), (1) two original copies of the forms or statements
required to be provided by such Lender under subsection
2.7B(iii)(a), properly completed and duly executed by such
Lender, 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 United States withholding tax, and (2) two
original copies of Internal Revenue Service Form W-8IMY (or any
successor forms) properly completed and duly executed by such
Lender, together with any information, if any, such Lender is
required to transmit with such form, and any other certificate or
statement of exemption required under the Internal Revenue Code
or the regulations issued thereunder, 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.
(c) Each Lender required to deliver any forms,
certificates or other evidence with respect to United States
federal income tax withholding matters pursuant to subsection
2.7B(iii)(a) and (b) hereby agrees, from time to time after the
initial delivery by such Lender of such forms, certificates or
other evidence, whenever a lapse in time or change in
circumstances renders such forms, certificates or other evidence
obsolete or inaccurate in any material respect, that such Lender
shall promptly (1) deliver to Administrative Agent for
transmission to Company two new original copies of Internal
Revenue Service Form W-8BEN or W-8ECI, or a Certificate re
Non-Bank Status and two original copies of Internal Revenue
Service Form W-8IMY, as the case may be, properly completed and
duly executed by such Lender, together with any other certificate
or statement of exemption required in order to confirm or
establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to
payments to such Lender under the Loan Documents or (2) notify
Administrative Agent and Company of its inability to deliver any
such forms, certificates or other evidence.
(d) Company shall not be required to pay any additional
amount to any Non-US Lender under clause (c) of subsection
2.7B(ii) (1) with respect to any Tax required to be deducted or
withheld on the basis of the information,
58
certificates or statements of exemption such Lender is required
to transmit with an Internal Revenue Service Form W-8IMY pursuant
to subsection 2.7B(iii)(b)(2) or (2) if such Lender shall have
failed to satisfy the requirements of clause (a), (b) or (c)(1)
of this subsection 2.7B(iii); PROVIDED that if such Lender shall
have satisfied the requirements of subsection 2.7B(iii)(a) on the
Closing Date (in the case of each Lender listed on the signature
pages hereof) or on the date of the Assignment Agreement pursuant
to which it became a Lender (in the case of each other Lender),
nothing in this subsection 2.7B(iii)(d) shall relieve Company of
its obligation to pay any additional amounts pursuant to clause
(c) of subsection 2.7B(ii) in the event that, as a result of any
change in any applicable law, treaty or governmental rule,
regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer
properly entitled to deliver forms, certificates or other
evidence at a subsequent date establishing the fact that such
Lender is not subject to withholding as described in subsection
2.7B(iii)(a).
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have
determined that the introduction or adoption (after the Closing Date) of any
law, rule or regulation (or any provision thereof) regarding capital adequacy,
or that any change (after the Closing Date) therein or in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or that
compliance by any Lender (or its Lending Office) with any guideline, request or
directive regarding capital adequacy (whether or not having the force of law)
introduced or adopted (after the Closing Date) by any such governmental
authority, central bank or comparable agency, in any such case has or would have
the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's Loans or
Commitments or Letters of Credit or participations therein or other obligations
hereunder with respect to the Loans or the Letters of Credit to a level below
that which such Lender or such controlling corporation could have achieved but
for such introduction, adoption, change or compliance (taking into consideration
the policies of such Lender or such controlling corporation with regard to
capital adequacy), then from time to time, promptly after receipt by Company
from such Lender of the statement referred to in the next sentence, Company
shall pay to such Lender such additional amount or amounts as will compensate
such Lender or such controlling corporation for such reduction. Such Lender
shall deliver to Company (with a copy to Administrative Agent) a written
statement setting forth in reasonable detail the basis of the calculation of
such additional amounts, which statement shall be conclusive and binding upon
all parties hereto absent clearly demonstrable error.
2.8 NOTICE OF CERTAIN COSTS; OBLIGATION OF LENDERS AND ISSUING
LENDERS TO MITIGATE.
A. Notwithstanding anything in this Agreement to the
contrary, to the extent subsection 2.6, 2.7 or 3.6 requires any Lender or
Issuing Lender to give notice to Company of an event or a condition that would
entitle such Lender or Issuing Lender to receive payments under subsection 2.6,
2.7 or 3.6, as the case may be, in the event such
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notice is given by such Lender or Issuing Lender more than 180 days after such
Lender or Issuing Lender has knowledge of the occurrence or existence of such
event or circumstance, such Lender or Issuing Lender shall not be entitled to
receive any such payments under subsection 2.6, 2.7 or 3.6, as the case may be,
in respect of the period ending on the Business Day immediately preceding the
date on which such notice is given to Company.
B. Each Lender and Issuing Lender agrees that, if an event
occurs or a condition arises that would cause such Lender to become an Affected
Lender or that would entitle such Lender or Issuing Lender to receive payments
under subsection 2.7 or subsection 3.6, it will, if so requested by Company, use
reasonable efforts (subject to overall policy considerations of such Lender) to
(i) make, issue, fund or maintain the Commitments of such Lender or the affected
Loans or Letters of Credit (or participations therein) of such Lender or Issuing
Lender through another lending or letter of credit office of such Lender or
Issuing Lender or (ii) take such other measures as such Lender or Issuing Lender
may deem reasonable in good faith, if as a result thereof the circumstances
which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such
Lender or Issuing Lender pursuant to subsection 2.7 or subsection 3.6 would be
materially reduced and if the making, issuing, funding or maintaining of such
Commitments or Loans or Letters of Credit (or participations therein) through
such other lending or letter of credit office or in accordance with such other
measures, as the case may be, would not otherwise materially adversely affect
such Commitments or Loans or Letters of Credit (or participations therein) or
cause such Lender or Issuing Lender to suffer any economic, legal or regulatory
disadvantage; PROVIDED that nothing in this subsection 2.8 shall affect or
postpone any of the Obligations of Company or the rights of any Lender provided
in subsection 2.6C, 2.7 or 3.6.
2.9 DEFAULTING LENDERS.
Anything contained herein to the contrary notwithstanding, in the
event that any Lender (a "DEFAULTING LENDER") defaults (a "FUNDING DEFAULT") in
its obligation to fund any Revolving Loan (a "DEFAULTED REVOLVING LOAN") in
accordance with subsection 2.1 as a result of the appointment of a receiver or
conservator with respect to such Lender at the direction or request of any
regulatory agency or authority, then (i) during any Default Period (as defined
below) with respect to such Defaulting Lender, such Defaulting Lender shall be
deemed not to be a "Lender" for purposes of voting on any matters (including the
granting of any consents or waivers) with respect to any of the Loan Documents,
(ii) to the extent permitted by applicable law, until such time as the Default
Excess (as defined below) with respect to such Defaulting Lender shall have been
reduced to zero, (a) any voluntary prepayment of the Revolving Loans pursuant to
subsection 2.4B(i) shall, if Company so directs at the time of making such
voluntary prepayment, be applied to the Revolving Loans of other Lenders as if
such Defaulting Lender had no Revolving Loans outstanding and the Revolving Loan
Exposure of such Defaulting Lender were zero, and (b) any mandatory prepayment
of the Revolving Loans pursuant to subsection 2.4B(iii) shall, if Company so
directs at the time of making such mandatory prepayment, be applied to the
Revolving Loans of other Lenders (but not to the Revolving Loans of such
Defaulting Lender) as if such Defaulting Lender had funded all Defaulted
Revolving Loans of such Defaulting Lender, it being understood and agreed that
Company shall be entitled to retain any portion of any
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mandatory prepayment of the Revolving Loans that is not paid to such Defaulting
Lender solely as a result of the operation of the provisions of this clause (b),
(iii) such Defaulting Lender's Revolving Loan Commitment and outstanding
Revolving Loans and such Defaulting Lender's Pro Rata Share of the Letter of
Credit Usage shall be excluded for purposes of calculating the commitment fee
payable to Lenders pursuant to subsection 2.3A in respect of any day during any
Default Period with respect to such Defaulting Lender, and such Defaulting
Lender shall not be entitled to receive any commitment fee pursuant to
subsection 2.3A with respect to such Defaulting Lender's Revolving Loan
Commitment in respect of any Default Period with respect to such Defaulting
Lender, and (iv) the Total Utilization of Revolving Loan Commitments as at any
date of determination shall be calculated as if such Defaulting Lender had
funded all Defaulted Revolving Loans of such Defaulting Lender.
For purposes of this Agreement, (I) "DEFAULT PERIOD" means, with
respect to any Defaulting Lender, the period commencing on the date of the
applicable Funding Default and ending on the earliest of the following dates:
(A) the date on which all Revolving Loan Commitments are cancelled or terminated
and/or the Obligations are declared or become immediately due and payable, (B)
the date on which (1) the Default Excess with respect to such Defaulting Lender
shall have been reduced to zero (whether by the funding by such Defaulting
Lender of any Defaulted Revolving Loans of such Defaulting Lender or by the
non-pro rata application of any voluntary or mandatory prepayments of the
Revolving Loans in accordance with the terms of this subsection 2.9 or by a
combination thereof) and (2) such Defaulting Lender shall have delivered to
Company and Administrative Agent a written reaffirmation of its intention to
honor its obligations under this Agreement with respect to its Revolving Loan
Commitment, and (C) the date on which Company, Administrative Agent and
Requisite Lenders waive all Funding Defaults of such Defaulting Lender in
writing, and (II) "DEFAULT EXCESS" means, with respect to any Defaulting Lender,
the excess, if any, of such Defaulting Lender's Pro Rata Share of the aggregate
outstanding principal amount of Revolving Loans of all Lenders (calculated as if
all Defaulting Lenders (other than such Defaulting Lender) had funded all of
their respective Defaulted Revolving Loans) over the aggregate outstanding
principal amount of Revolving Loans of such Defaulting Lender.
No Commitment of any Lender shall be increased or otherwise
affected, and, except as otherwise expressly provided in this subsection 2.9,
performance by Company of its obligations under this Agreement and the other
Loan Documents shall not be excused or otherwise modified, as a result of any
Funding Default or the operation of this subsection 2.9. The rights and remedies
against a Defaulting Lender under this subsection 2.9 are in addition to other
rights and remedies which Company may have against such Defaulting Lender with
respect to any Funding Default and which Administrative Agent or any Lender may
have against such Defaulting Lender with respect to any Funding Default.
2.10 REMOVAL OR REPLACEMENT OF A LENDER.
A. Anything contained in this Agreement to the contrary
notwithstanding, in the event that:
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(i) (a) any Lender (an "INCREASED-COST LENDER") shall give
notice to Company that such Lender is an Affected Lender or that such
Lender is entitled to receive payments under subsection 2.7 or subsection
3.6, (b) the circumstances which have caused such Lender to be an
Affected Lender or which entitle such Lender to receive such payments
shall remain in effect, and (c) such Lender shall fail to withdraw such
notice within five Business Days after Company's request for such
withdrawal; or
(ii) (a) any Lender shall become a Defaulting Lender, (b) the
Default Period for such Defaulting Lender shall remain in effect, and (c)
such Defaulting Lender shall fail to cure the default as a result of
which it has become a Defaulting Lender within five Business Days after
Company's request that it cure such default; or
(iii) (a) in connection with any proposed amendment,
modification, termination, waiver or consent with respect to any of the
provisions of this Agreement as contemplated by clauses (i) through (iv)
of the first proviso to subsection 10.6A, the consent of Requisite
Lenders shall have been obtained but the consent of one or more of such
other Lenders (each a "NON-CONSENTING LENDER") whose consent is required
shall not have been obtained, and (b) the failure to obtain
Non-Consenting Lenders' consents does not result solely from the exercise
of Non-Consenting Lenders' rights (and the withholding of any required
consents by Non-Consenting Lenders) pursuant to the second proviso to
subsection 10.6A;
then, and in each such case, Company shall have the right, at its option, to
remove or replace the applicable Increased-Cost Lender, Defaulting Lender or
Non-Consenting Lender (the "TERMINATED LENDER") to the extent permitted by
subsection 2.10B.
B. Company may, by giving written notice to Administrative
Agent and any Terminated Lender of its election to do so:
(i) elect to (a) terminate the Revolving Loan Commitment, if
any, of such Terminated Lender upon receipt by such Terminated Lender of
such notice and (b) prepay at par on the date of such termination any
outstanding Loans made by such Terminated Lender, together with accrued
and unpaid interest thereon and any other amounts payable to such
Terminated Lender hereunder pursuant to subsection 2.6, subsection 2.7 or
subsection 3.6 or otherwise; PROVIDED that, in the event such Terminated
Lender has any Loans outstanding at the time of such termination, the
written consent of Administrative Agent and Requisite Lenders (which
consent shall not be unreasonably withheld or delayed) shall be required
in order for Company to make the election set forth in this clause (i);
or
(ii) elect to cause such Terminated Lender (and such
Terminated Lender hereby irrevocably agrees) to assign its outstanding
Loans and its Revolving Loan Commitment, if any, in full to one or more
Eligible Assignees (each a "REPLACEMENT LENDER") in accordance with the
provisions of subsection 10.1B; PROVIDED that (a) on the date of such
assignment, Company shall pay any amounts payable to such
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Terminated Lender pursuant to subsection 2.6, subsection 2.7 or
subsection 3.6 or otherwise as if it were a prepayment and (b) in the
event such Terminated Lender is a Non-Consenting Lender, each Replacement
Lender shall consent, at the time of such assignment, to each matter in
respect of which such Terminated Lender was a Non-Consenting Lender;
PROVIDED that (X) Company may not make either of the elections set forth in
clauses (i) or (ii) above with respect to any Non-Consenting Lender unless
Company also makes one of such elections with respect to each other Terminated
Lender which is a Non-Consenting Lender and (Y) Company may not make either of
such elections with respect to any Terminated Lender that is an Issuing Lender
unless, prior to the effectiveness of such election, Company shall have caused
each outstanding Letter of Credit issued by such Issuing Lender to be cancelled.
C. Upon the prepayment of all amounts owing to any
Terminated Lender and the termination of such Terminated Lender's Revolving Loan
Commitment, if any, pursuant to clause (i) of subsection 2.10B, (i) SCHEDULE 2.1
shall be deemed modified to reflect any corresponding changes in the Revolving
Loan Commitments and (ii) such Terminated Lender shall no longer constitute a
"Lender" for purposes of this Agreement; PROVIDED that any rights of such
Terminated Lender to indemnification under this Agreement (including under
subsections 2.6D, 2.7, 3.6, 10.2 and 10.3) shall survive as to such Terminated
Lender.
SECTION 3. LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF
PARTICIPATIONS THEREIN.
A. LETTERS OF CREDIT. In addition to Company requesting that
Revolving Lenders make Revolving Loans pursuant to subsection 2.1A(iii) and that
Swing Line Lender make Swing Line Loans pursuant to subsection 2.1A(iv), Company
may request, in accordance with the provisions of this subsection 3.1, from time
to time during the period from the Closing Date to but excluding the Revolving
Loan Commitment Termination Date, that one or more Revolving Lenders issue
Letters of Credit for the account of Company for the purposes specified in the
definitions of Commercial Letters of Credit and Standby Letters of Credit.
Subject to the terms and conditions of this Agreement and in reliance upon the
representations and warranties of Company herein set forth, any one or more
Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not
be obligated to, issue such Letters of Credit in accordance with the provisions
of this subsection 3.1; PROVIDED that Company shall not request that any Issuing
Lender issue (and no Issuing Lender shall issue):
(i) any Letter of Credit if, after giving effect to such
issuance, the Total Utilization of Revolving Loan Commitments would
exceed the Revolving Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such
issuance, the Letter of Credit Usage would exceed $50,000,000;
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(iii) any Standby Letter of Credit having an expiration date
later than the earlier of (a) five Business Days prior to the Revolving
Loan Commitment Termination Date and (b) the date which is one year from
the date of issuance of such Standby Letter of Credit; PROVIDED that the
immediately preceding clause (b) shall not prevent any Issuing Lender
from agreeing that a Standby Letter of Credit will automatically be
extended for one or more successive periods not to exceed one year each
unless such Issuing Lender elects not to extend for any such additional
period; and PROVIDED, FURTHER that such Issuing Lender shall elect not to
extend such Standby Letter of Credit if it has been notified by
Administrative Agent that an Event of Default has occurred and is
continuing (and has not been waived in accordance with subsection 10.6)
at the time such Issuing Lender must elect whether or not to allow such
extension;
(iv) any Commercial Letter of Credit having an expiration date
(a) later than the earlier of (X) the date which is 30 days prior to the
Revolving Loan Commitment Termination Date and (Y) the date which is 180
days from the date of issuance of such Commercial Letter of Credit or (b)
that is otherwise unacceptable to the applicable Issuing Lender in its
reasonable discretion; or
(v) any Letter of Credit that does not provide for sight
payment.
B. MECHANICS OF ISSUANCE.
(i) NOTICE OF REQUEST FOR ISSUANCE. Whenever Company desires
the issuance of a Letter of Credit, it shall deliver to Administrative
Agent a Notice of Request for Issuance of Letter of Credit substantially
in the form of EXHIBIT III annexed hereto no later than 12:00 Noon (New
York City time) at least three Business Days (in the case of Standby
Letters of Credit) or five Business Days (in the case of Commercial
Letters of Credit), or in each case such shorter period as may be agreed
to by the Issuing Lender in any particular instance, in advance of the
proposed date of issuance. The Notice of Request for Issuance of Letter
of Credit shall specify (a) the proposed date of issuance (which shall be
a Business Day), (b) whether the Letter of Credit is to be a Standby
Letter of Credit or a Commercial Letter of Credit, (c) the face amount of
the Letter of Credit, (d) in the case of a Letter of Credit which Company
requests to be denominated in a currency other than Dollars, the currency
in which Company requests such Letter of Credit to be issued, (e) the
expiration date of the Letter of Credit, (f) the name and address of the
beneficiary, (g) in the case of a Standby Letter of Credit, the purpose
of such Letter of Credit and (h) either the verbatim text of the proposed
Letter of Credit or the proposed terms and conditions thereof, including
a precise description of any documents to be presented by the beneficiary
which, if presented by the beneficiary in substantial compliance with the
terms and conditions of the Letter of Credit on or prior to the
expiration date of the Letter of Credit, would require the Issuing Lender
to make payment under the Letter of Credit; PROVIDED that the Issuing
Lender, in its reasonable discretion, may require changes in the text of
the proposed Letter of Credit or any such documents; and PROVIDED,
FURTHER that no Letter of Credit shall require payment against a
conforming draft to be made thereunder on the same business day (under
the laws of the
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jurisdiction in which the office of the Issuing Lender to which such
draft is required to be presented is located) that such draft is
presented if such presentation is made after 11:00 A.M. (in the time zone
of such office of the Issuing Lender) on such business day.
Company shall notify the applicable Issuing Lender (and
Administrative Agent, if Administrative Agent is not such Issuing Lender)
prior to the issuance of any Letter of Credit in the event that any of
the matters to which Company is required to certify in the applicable
Notice of Request for Issuance of Letter of Credit is no longer true and
correct as of the proposed date of issuance of such Letter of Credit, and
upon the issuance of any Letter of Credit Company shall be deemed to have
re-certified, as of the date of such issuance, as to the matters to which
Company is required to certify in the applicable Notice of Request for
Issuance of Letter of Credit.
(ii) DETERMINATION OF ISSUING LENDER. Upon receipt by
Administrative Agent of a Notice of Request for Issuance of Letter of
Credit pursuant to subsection 3.1B(i) requesting the issuance of a Letter
of Credit, in the event Administrative Agent elects to issue such Letter
of Credit, Administrative Agent shall promptly so notify Company, and
Administrative Agent shall be the Issuing Lender with respect thereto. In
the event that Administrative Agent, in its sole discretion, elects not
to issue such Letter of Credit, Administrative Agent shall promptly so
notify Company, whereupon Company may request any other Revolving Lender
to issue such Letter of Credit by delivering to such Lender a copy of the
applicable Notice of Request for Issuance of Letter of Credit. Any
Revolving Lender so requested to issue such Letter of Credit shall
promptly notify Company and Administrative Agent whether or not, in its
sole discretion, it has elected to issue such Letter of Credit, and any
such Revolving Lender which so elects to issue such Letter of Credit
shall be the Issuing Lender with respect thereto. In the event that all
other Revolving Lenders shall have declined to issue such Letter of
Credit, notwithstanding the prior election of Administrative Agent not to
issue such Letter of Credit, Administrative Agent shall be obligated to
issue such Letter of Credit and shall be the Issuing Lender with respect
thereto, notwithstanding the fact that the Letter of Credit Usage with
respect to such Letter of Credit and with respect to all other Letters of
Credit issued by Administrative Agent, when aggregated with
Administrative Agent's outstanding Revolving Loans and Swing Line Loans,
may exceed Administrative Agent's Revolving Loan Commitment then in
effect; PROVIDED that Administrative Agent shall not be obligated to
issue any Letter of Credit denominated in a foreign currency which in the
judgment of Administrative Agent is not readily and freely available.
Company shall notify the applicable Issuing Lender (and
Administrative Agent, if Administrative Agent is not such Issuing Lender)
prior to the issuance of any Letter of Credit in the event that any of
the matters to which Company is required to certify in the applicable
Notice of Request for Issuance of Letter of Credit is no longer true and
correct as of the proposed date of issuance of such Letter of Credit, and
upon the issuance of any Letter of Credit Company shall be deemed to have
re-certified, as of the date of such issuance, as to the matters to which
Company
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is required to certify in the applicable Notice of Request for Issuance
of Letter of Credit.
(iii) ISSUANCE OF LETTER OF CREDIT. Upon satisfaction or waiver
(in accordance with subsection 10.6) of the conditions set forth in
subsection 4.3, the Issuing Lender shall issue the requested Letter of
Credit in accordance with the Issuing Lender's standard operating
procedures.
(iv) NOTIFICATION TO REVOLVING LENDERS REGARDING STANDBY
LETTERS OF CREDIT. Upon the issuance of any Standby Letter of Credit the
applicable Issuing Lender shall promptly notify Administrative Agent and
each other Revolving Lender of such issuance, which notice shall be
accompanied by a copy of such Standby Letter of Credit. Promptly after
receipt of such notice (or, if Administrative Agent is the Issuing
Lender, together with such notice), Administrative Agent shall notify
each Revolving Lender of the amount of such Revolving Lender's
respective participation in such Standby Letter of Credit, determined in
accordance with subsection 3.1C. In addition, on the first Business Day
of each calendar month each Issuing Lender shall deliver to
Administrative Agent and each Revolving Lender a report setting forth
the maximum aggregate amount which is at or any time thereafter may
become available for drawing under all Standby Letters of Credit issued
by such Issuing Lender then outstanding (any amount which is denominated
in a currency other than Dollars being determined by reference to the
applicable Exchange Rate for such currency as at such date), and
identifying each Standby Letter of Credit issued by such Issuing Lender
and the maximum amount that may become available thereunder and, in the
case of each Standby Letter of Credit that is not denominated in
Dollars, the applicable Exchange Rate for such Letter of Credit as at
such date.
(v) REPORTS TO ADMINISTRATIVE AGENT AND REVOLVING LENDERS
REGARDING COMMERCIAL LETTERS OF CREDIT. Each Issuing Lender (other than
Administrative Agent) with respect to any Commercial Letter of Credit
shall deliver to Administrative Agent, by telefacsimile transmission on
the first Business Day of each week, a report setting forth the daily
aggregate amount available for drawing during the immediately preceding
week under all outstanding Commercial Letters of Credit issued by such
Issuing Lender. Within 15 days after the end of each calendar month
ending after the Closing Date, so long as any Commercial Letter of
Credit shall have been outstanding during such calendar month,
Administrative Agent shall deliver to each Revolving Lender a report
setting forth for such calendar month the daily aggregate amount
available to be drawn under all Commercial Letters of Credit that were
outstanding during such calendar month.
C. REVOLVING LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS
OF CREDIT. Immediately upon the issuance of each Letter of Credit, each
Revolving Lender shall be deemed to, and hereby agrees to, have irrevocably
purchased from the Issuing Lender a participation in such Letter of Credit and
any drawings honored thereunder in an amount equal to such Revolving Lender's
Pro Rata Share of the maximum amount which is or at any time may become
available to be drawn thereunder. Upon satisfaction of the conditions set forth
in Section 4.1, the Letters of Credit set forth on SCHEDULE 3.1C (the "EXISTING
LETTERS OF
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CREDIT") shall, effective as of such Closing Date, become Letters of Credit
under this Agreement to the same extent as if initially issued hereunder and
each Lender having a Revolving Loan Commitment shall be deemed to have
irrevocably purchased from the Issuing Lender a participation in such Letters of
Credit and drawings thereunder in an amount equal to such Lender's Pro Rata
Share of the maximum amount which is or at any time may become available to be
drawn thereunder.
3.2 LETTER OF CREDIT FEES.
Company agrees to pay the following amounts with respect to
Letters of Credit issued hereunder:
(i) with respect to each Letter of Credit, (a) a fronting
fee, payable directly to the applicable Issuing Lender for its own
account, equal to the greater of (x) 0.125% per annum MULTIPLIED BY the
daily amount available to be drawn under such Letter of Credit and (y)
$500 and (b) a letter of credit fee, payable to Administrative Agent for
the account of Revolving Lenders, equal to the Applicable Tranche A LIBOR
Margin MINUS 0.125% per annum MULTIPLIED BY the daily amount available to
be drawn under such Letter of Credit, each such fronting fee or letter of
credit fee to be payable in arrears on and to (but excluding) each March
31, June 30, September 30 and December 31 of each year and on the
Revolving Loan Commitment Termination Date, in each case computed on the
basis of a 365-day or 366-day year, as the case may be, for the actual
number of days elapsed; and
(ii) with respect to the issuance, amendment or transfer of
each Letter of Credit and each payment of a drawing made thereunder
(without duplication of the fees payable under clause (i) above),
customary documentary and processing charges payable directly to the
applicable Issuing Lender for its own account in accordance with such
Issuing Lender's standard schedule for such charges in effect at the time
of such issuance, amendment, transfer or payment, as the case may be.
For purposes of calculating any fees payable under clause (i) of this subsection
3.2, (1) the daily amount available to be drawn under any Letter of Credit shall
be determined as of the close of business on any date of determination and (2)
any amount described in such clause which is denominated in a currency other
than Dollars shall be valued based on the applicable Exchange Rate for such
currency as of the applicable date of determination. Promptly upon receipt by
Administrative Agent of any amount described in clause (i)(b) of this subsection
3.2, Administrative Agent shall distribute to each Revolving Lender its Pro Rata
Share of such amount.
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS PAID UNDER LETTERS OF
CREDIT.
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO
DRAWINGS. In determining whether to honor any drawing under any Letter of Credit
by the beneficiary thereof, the Issuing Lender shall be responsible only to
examine the documents delivered under such Letter of Credit with reasonable care
so as to ascertain whether they appear on
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their face to be in substantial compliance with the terms and conditions of such
Letter of Credit.
B. REIMBURSEMENT BY COMPANY OF AMOUNTS PAID UNDER LETTERS OF
CREDIT. In the event an Issuing Lender has determined to honor a drawing under a
Letter of Credit issued by it, such Issuing Lender shall immediately notify
Company and Administrative Agent, and Company shall reimburse such Issuing
Lender on or before the Business Day immediately following the date on which
such drawing is honored (the "REIMBURSEMENT DATE") in an amount in Dollars
(which amount, in the case of a drawing under a Letter of Credit which is
denominated in a currency other than Dollars, shall be calculated by reference
to the applicable Exchange Rate) and in same day funds equal to the amount of
such honored drawing; PROVIDED that, anything contained in this Agreement to the
contrary notwithstanding, (i) unless Company shall have notified Administrative
Agent and such Issuing Lender prior to 11:00 A.M. (New York City time) on the
date such drawing is honored that Company intends to reimburse such Issuing
Lender for the amount of such honored drawing with funds other than the proceeds
of Revolving Loans, Company shall be deemed to have given a timely Notice of
Borrowing to Administrative Agent requesting Revolving Lenders to make Revolving
Loans that are Base Rate Loans on the Reimbursement Date in an amount in Dollars
(which amount, in the case of a drawing under a Letter of Credit which is
denominated in a currency other than Dollars, shall be calculated by reference
to the applicable Exchange Rate) equal to the amount of such honored drawing and
(ii) subject to satisfaction or waiver of the conditions specified in subsection
4.2B, Revolving Lenders shall, on the Reimbursement Date, make Revolving Loans
that are Base Rate Loans in the amount of such honored drawing, the proceeds of
which shall be applied directly by Administrative Agent to reimburse such
Issuing Lender for the amount of such honored drawing; and PROVIDED, FURTHER
that if for any reason proceeds of Revolving Loans are not received by such
Issuing Lender on the Reimbursement Date in an amount equal to the amount of
such honored drawing, Company shall reimburse such Issuing Lender, on demand, in
an amount in same day funds equal to the excess of the amount of such honored
drawing over the aggregate amount of such Revolving Loans, if any, which are so
received. Nothing in this subsection 3.3B shall be deemed to relieve any
Revolving Lender from its obligation to make Revolving Loans on the terms and
conditions set forth in this Agreement, and Company shall retain any and all
rights it may have against any Revolving Lender resulting from the failure of
such Revolving Lender to make such Revolving Loans under this subsection 3.3B.
C. PAYMENT BY REVOLVING LENDERS OF UNREIMBURSED AMOUNTS PAID
UNDER LETTERS OF CREDIT.
(i) PAYMENT BY REVOLVING LENDERS. In the event that Company
shall fail for any reason to reimburse any Issuing Lender as provided in
subsection 3.3B in an amount (calculated, in the case of a drawing under
a Letter of Credit denominated in a currency other than Dollars, by
reference to the applicable Exchange Rate) equal to the amount of any
drawing honored by such Issuing Lender under a Letter of Credit issued by
it, such Issuing Lender shall promptly notify each other Revolving Lender
of the unreimbursed amount of such honored drawing and of such other
Revolving Lender's respective participation therein based on such
Revolving Lender's Pro Rata
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Share. Each Revolving Lender shall make available to such Issuing Lender an
amount equal to its respective participation, in Dollars and in same day funds,
at the office of such Issuing Lender specified in such notice, not later than
12:00 Noon (New York City time) on the first business day (under the laws of the
jurisdiction in which such office of such Issuing Lender is located) after the
date notified by such Issuing Lender. In the event that any Revolving Lender
fails to make available to such Issuing Lender on such business day the amount
of such Revolving Lender's participation in such Letter of Credit as provided in
this subsection 3.3C, such Issuing Lender shall be entitled to recover such
amount on demand from such Revolving Lender together with interest thereon at
the Federal Funds Effective Rate for three Business Days and thereafter at the
Base Rate. Nothing in this subsection 3.3C shall be deemed to prejudice the
right of any Revolving Lender to recover from any Issuing Lender any amounts
made available by such Revolving Lender to such Issuing Lender pursuant to this
subsection 3.3C in the event that it is determined by the final judgment of a
court of competent jurisdiction that the payment with respect to a Letter of
Credit by such Issuing Lender in respect of which payment was made by such
Lender constituted gross negligence or willful misconduct on the part of such
Issuing Lender.
(ii) DISTRIBUTION TO REVOLVING LENDERS OF REIMBURSEMENTS
RECEIVED FROM COMPANY. In the event any Issuing Lender shall have been
reimbursed by other Revolving Lenders pursuant to subsection 3.3C(i) for
all or any portion of any drawing honored by such Issuing Lender under a
Letter of Credit issued by it, such Issuing Lender shall distribute to
each other Revolving Lender which has paid all amounts payable by it
under subsection 3.3C(i) with respect to such honored drawing such other
Revolving Lender's Pro Rata Share of all payments subsequently received
by such Issuing Lender from Company in reimbursement of such honored
drawing when such payments are received. Any such distribution shall be
made to a Revolving Lender at its primary address set forth below its
name on the appropriate signature page hereof or at such other address as
such Revolving Lender may request.
D. INTEREST ON AMOUNTS PAID UNDER LETTERS OF CREDIT.
(i) PAYMENT OF INTEREST BY COMPANY. Company agrees to pay to
each Issuing Lender, with respect to drawings honored under any Letters
of Credit issued by it, interest on the amount paid by such Issuing
Lender in respect of each such honored drawing from the date such drawing
is honored to but excluding the date such amount is reimbursed by Company
(including any such reimbursement out of the proceeds of Revolving Loans
pursuant to subsection 3.3B) at a rate equal to (a) for the period from
the date such drawing is honored to but excluding the Reimbursement Date,
the rate then in effect under this Agreement with respect to Revolving
Loans that are Base Rate Loans and (b) thereafter, a rate which is 2% per
annum in excess of the rate of interest otherwise payable under this
Agreement with respect to Revolving Loans that are Base Rate Loans.
Interest payable pursuant to this subsection 3.3D(i) shall be computed in
the manner specified in subsection 2.2F for the computation of interest
on Base Rate Loans and shall be payable on demand or, if no demand is
made, on the date on which the related drawing under a Letter of Credit
is reimbursed in full.
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(ii) DISTRIBUTION OF INTEREST PAYMENTS BY ISSUING LENDER.
Promptly upon receipt by any Issuing Lender of any payment of interest
pursuant to subsection 3.3D(i) with respect to a drawing honored under a
Letter of Credit issued by it, (a) such Issuing Lender shall distribute
to each other Revolving Lender, out of the interest received by such
Issuing Lender in respect of the period from the date such drawing is
honored to but excluding the date on which such Issuing Lender is
reimbursed for the amount of such drawing (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to
subsection 3.3B), the amount that such other Revolving Lender would have
been entitled to receive in respect of the letter of credit fee that
would have been payable in respect of such Letter of Credit for such
period pursuant to subsection 3.2 if no drawing had been honored under
such Letter of Credit, and (b) in the event such Issuing Lender shall
have been reimbursed by other Revolving Lenders pursuant to subsection
3.3C(i) for all or any portion of such honored drawing, such Issuing
Lender shall distribute to each other Revolving Lender which has paid all
amounts payable by it under subsection 3.3C(i) with respect to such
honored drawing such other Revolving Lender's Pro Rata Share of any
interest received by such Issuing Lender in respect of that portion of
such honored drawing so reimbursed by other Revolving Lenders for the
period from the date on which such Issuing Lender was so reimbursed by
other Revolving Lenders to but excluding the date on which such portion
of such honored drawing is reimbursed by Company. Any such distribution
shall be made to a Revolving Lender at its primary address set forth
below its name on the appropriate signature page hereof or at such other
address as such Revolving Lender may request.
3.4 OBLIGATIONS ABSOLUTE.
The obligation of Company to reimburse each Issuing Lender for
drawings honored under the Letters of Credit issued by it and to repay any
Revolving Loans made by Revolving Lenders pursuant to subsection 3.3B and the
obligations of Revolving Lenders under subsection 3.3C(i) shall be unconditional
and irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances including any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, set-off, defense or other
right which Company or any Revolving Lender may have at any time against
a beneficiary or any transferee of any Letter of Credit (or any Persons
for whom any such transferee may be acting), any Issuing Lender or other
Revolving Lender or any other Person or, in the case of a Revolving
Lender, against Company, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction (including
any underlying transaction between Company or one of its Subsidiaries and
the beneficiary for which any Letter of Credit was procured);
(iii) any draft or other document presented under any 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;
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(iv) payment by the applicable Issuing Lender under any Letter
of Credit against presentation of a draft or other document which does
not substantially comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of
Company or any of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document
by any party thereto;
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing;
PROVIDED, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question.
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDERS' DUTIES.
A. INDEMNIFICATION. In addition to amounts payable as
provided in subsection 3.6, Company hereby agrees to protect, indemnify, pay and
save harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which such Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit by such Issuing
Lender, other than as a result of (a) the gross negligence or willful misconduct
of such Issuing Lender as determined by a final judgment of a court of competent
jurisdiction or (b) subject to the following clause (ii), the wrongful dishonor
by such Issuing Lender of a proper demand for payment made under any Letter of
Credit issued by it or (ii) the failure of such Issuing Lender to honor a
drawing under any such Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts or omissions herein called
"GOVERNMENTAL ACTS").
B. NATURE OF ISSUING LENDERS' DUTIES. As between Company and
any Issuing Lender, Company assumes all risks of the acts and omissions of, or
misuse of the Letters of Credit issued by such Issuing Lender by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation of
the foregoing, such Issuing Lender shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which
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may prove to be invalid or ineffective for any reason; (iii) failure of the
beneficiary of any such Letter of Credit to comply fully with any conditions
required in order to draw upon such Letter of Credit; (iv) errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex or otherwise, whether or not they be in cipher; (v)
errors in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of such Issuing Lender, including any
Governmental Acts, and none of the above shall affect or impair, or prevent the
vesting of, any of such Issuing Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the
specific provisions set forth in the first paragraph of this subsection 3.5B,
any action taken or omitted by any Issuing Lender under or in connection with
the Letters of Credit issued by it or any documents and certificates delivered
thereunder, if taken or omitted in good faith, shall not put such Issuing Lender
under any resulting liability to Company.
Notwithstanding anything to the contrary contained in this
subsection 3.5, Company shall retain any and all rights it may have against any
Issuing Lender for any liability arising solely out of the gross negligence or
willful misconduct of such Issuing Lender.
3.6 INCREASED COSTS AND TAXES RELATING TO LETTERS OF CREDIT.
Subject to the provisions of subsection 2.7B (which shall be
controlling with respect to the matters covered thereby), in the event that any
Issuing Lender or Lender shall reasonably determine (which determination shall,
absent clearly demonstrable error, be final and conclusive and binding upon all
parties hereto) that the introduction or adoption (after the Closing Date) of
any law, treaty or governmental rule, regulation or order, or that any change
(after the Closing Date) therein or in the interpretation, administration or
application thereof, or that any determination (after the Closing Date) by a
court or governmental authority, or that compliance by any Issuing Lender or
Revolving Lender with any guideline, request or directive issued or made (after
the Closing Date) by any central bank or other governmental or
quasi-governmental authority (whether or not having the force of law), in any
such case:
(i) subjects such Issuing Lender or Revolving Lender (or its
lending or letter of credit office) to any additional Tax (other than any
Tax on the overall net income of such Issuing Lender or Lender) with
respect to the issuing or maintaining of any Letters of Credit or the
purchasing or maintaining of any participations therein or any other
obligations under this Section 3, whether directly or by such being
imposed on or suffered by any particular Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve
(including any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement in respect of any Letters of
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Credit issued by any Issuing Lender or participations therein purchased
by any Lender; or
(iii) imposes any other condition (other than with respect to a
Tax matter) on or affecting such Issuing Lender or Lender (or its lending
or letter of credit office) regarding this Section 3 or any Letter of
Credit or any participation therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Lender or Revolving Lender of agreeing to issue, issuing or maintaining any
Letter of Credit or agreeing to purchase, purchasing or maintaining any
participation therein or to reduce any amount received or receivable by such
Issuing Lender or Revolving Lender (or its lending or letter of credit office)
with respect thereto; then, in any case, Company shall pay to such Issuing
Lender or Revolving Lender, promptly after receipt of the statement referred to
in the next sentence, such additional amount or amounts as may be necessary to
compensate such Issuing Lender or Revolving Lender for any such increased cost
or reduction in amounts received or receivable hereunder. Such Issuing Lender or
Revolving Lender shall deliver to Company (with a copy to Administrative Agent)
a written statement, setting forth in reasonable detail the basis for
calculating the additional amounts owed to such Issuing Lender or Revolving
Lender under this subsection 3.6, which statement shall be conclusive and
binding upon all parties hereto absent clearly demonstrable error.
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The effectiveness of this Agreement and the obligations of
Lenders to make Loans and the issuance of Letters of Credit hereunder are
subject to the satisfaction of the following conditions (it being understood
that Collateral Agent shall have authority to enter into each Collateral
Document pursuant to subsection 9.6 upon execution of this Agreement).
4.1 CONDITIONS TO TERM LOANS AND INITIAL REVOLVING LOANS AND SWING
LINE LOANS.
The obligations of Lenders to make the Term Loans and any
Revolving Loans and Swing Line Loans to be made on the Closing Date are, in
addition to the conditions precedent specified in subsection 4.2, subject to
prior or concurrent satisfaction of the following conditions:
A. LOAN PARTY DOCUMENTS. On or before the Closing Date,
Company shall, and shall cause each other Loan Party to, deliver to Lenders (or
to Administrative Agent for Lenders with sufficient originally executed copies,
where appropriate, for each Lender and its counsel) the following with respect
to Company or such Loan Party, as the case may be, each, unless otherwise noted,
dated the Closing Date:
(i) Copies of the Organizational Documents of such Person,
certified by the Secretary of State of its jurisdiction of organization
or, if such document is of a type that may not be so certified, certified
by the secretary or similar officer of the applicable Loan Party,
together with a good standing certificate from the Secretary of State of
its jurisdiction of organization and, to the extent generally available,
a
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certificate or other evidence of good standing as to payment of any
applicable franchise or similar taxes from the appropriate taxing
authority of such jurisdiction, each dated a recent date prior to the
Closing Date;
(ii) Resolutions of the Board of Directors of such Person
approving and authorizing the execution, delivery and performance of the
Loan Documents to which such Person is a party, certified as of the
Closing Date by the corporate secretary or an assistant secretary of such
Person as being in full force and effect without modification or
amendment;
(iii) Signature and incumbency certificates of the officers of
such Person executing the Loan Documents to which it is a party; and
(iv) Executed originals of the Loan Documents to which such
Person is a party.
B. CORPORATE AND CAPITAL STRUCTURE; OWNERSHIP.
(i) CORPORATE STRUCTURE. The corporate organizational
structure of Company and its Subsidiaries shall be as set forth on
SCHEDULE 4.1B annexed hereto.
(ii) CAPITAL STRUCTURE AND OWNERSHIP. The capital structure
and ownership of Company shall be as set forth on SCHEDULE 4.1B annexed
hereto.
C. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF
AGREEMENTS. Company shall have delivered to Administrative Agent an Officer's
Certificate, in form and substance satisfactory to Administrative Agent, to the
effect that the representations and warranties in Section 5 are true and correct
in all material respects on and as of the Closing Date (or, to the extent such
representations and warranties specifically relate to an earlier date, that such
representations and warranties were true, correct and complete in all material
respects on and as of such earlier date) and that Company shall have performed
in all material respects all agreements and satisfied all conditions which this
Agreement provides shall be performed or satisfied by it on or before the
Closing Date except as otherwise disclosed to and agreed to in writing by
Administrative Agent.
D. FINANCIAL STATEMENTS; PRO FORMA BALANCE SHEET. On or
before the Closing Date, Lenders shall have received from Company (i) audited
financial statements of Company and its Subsidiaries for Fiscal Years 2000, 2001
and 2002, consisting of balance sheets and the related consolidated statements
of income, stockholders' equity and cash flows for such Fiscal Years, together
with the unqualified report thereon of Deloitte & Touche LLP, (ii) unaudited
financial statements of Company and its Subsidiaries as at the end of each
fiscal quarter, if any, ended more than 45 days prior to the Closing Date and
after the most recent Fiscal Year referred to above, consisting of a balance
sheet and the related consolidated statements of income, stockholders' equity
and cash flows for such periods, all in reasonable detail and certified by the
chief financial officer of Company that they fairly present the financial
condition of Company and its Subsidiaries as at the dates indicated and the
results of their operations and their cash flows for the periods indicated,
subject to changes resulting from audit and normal year-end adjustments, (iii) a
pro forma consolidated
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balance sheet of Company and its Subsidiaries as at the most recent month end,
prepared in accordance with GAAP and reflecting the consummation of the
transactions contemplated by the Loan Documents, which pro forma balance sheet
shall be in form and substance reasonably satisfactory to Administrative Agent,
and (iv) a consolidated plan and financial forecast for the seven-year period
following the Closing Date, including forecasted balance sheets, consolidated
statements of income and cash flows of Company and its Subsidiaries on a
quarterly basis for Fiscal Year 2003 and on an annual basis for each Fiscal Year
thereafter during such period, together with an explanation of the assumptions
on which such forecasts are based.
E. OPINIONS OF COUNSEL TO LOAN PARTIES. Lenders and their
respective counsel shall have received originally executed copies of one or more
favorable written opinions of (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, general counsel for Company
and (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for Loan Parties, in each
case dated as of the Closing Date and setting forth substantially the matters in
the opinions designated in EXHIBIT IX annexed hereto, and such other matters as
Administrative Agent and its counsel shall reasonably request, in form and
substance satisfactory to Administrative Agent and its counsel, and Company
hereby requests such counsel for Loan Parties to deliver such opinions.
F. OPINION OF ADMINISTRATIVE AGENT'S COUNSEL. Lenders shall
have received originally executed copies of a favorable written opinion of
O'Melveny & ▇▇▇▇▇ LLP, counsel to Administrative Agent, dated as of the Closing
Date, substantially in the form of EXHIBIT X annexed hereto.
G. SOLVENCY ASSURANCES. On the Closing Date, Administrative
Agent and Lenders shall have received an Officer's Certificate of Company dated
the Closing Date, substantially in the form of EXHIBIT XIII annexed hereto and
with appropriate attachments, in each case demonstrating that, after giving
effect to the consummation of the transactions contemplated by the Loan
Documents, Company and each Subsidiary Guarantor on a consolidated basis will be
Solvent.
H. EVIDENCE OF INSURANCE. Administrative Agent shall have
received a certificate from Company's insurance broker or other evidence
satisfactory to it that all insurance required to be maintained pursuant to
subsection 6.4 is in full force and effect.
I. NECESSARY GOVERNMENTAL AUTHORIZATIONS AND CONSENTS;
EXPIRATION OF WAITING PERIODS, ETC. Company shall have obtained all Governmental
Authorizations and all consents of other Persons, in each case that are
necessary or advisable in connection with the transactions contemplated by the
Loan Documents and the continued operation of the business conducted by Company
and its Subsidiaries in substantially the same manner as conducted prior to the
Closing Date. Each such Governmental Authorization and consent shall be in full
force and effect, except in a case where the failure to obtain or maintain a
Governmental Authorization or consent, either individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. All
applicable waiting periods shall have expired without any action being taken or
threatened by any competent authority that would restrain, prevent or otherwise
impose adverse conditions on the transactions contemplated by the Loan Documents
or the financing thereof. No action, request for stay,
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petition for review or rehearing, reconsideration, or appeal with respect to any
of the foregoing shall be pending, and the time for any applicable Government
Authority to take action to set aside its consent on its own motion shall have
expired.
J. SECURITY INTERESTS IN PLEDGED COLLATERAL. Administrative
Agent shall have received evidence satisfactory to it that Company shall have
taken or caused to be taken all such actions, executed and delivered or caused
to be executed and delivered all such agreements, documents and instruments, and
made or caused to be made all such filings and recordings (other than the filing
or recording of items described in clause (ii)) that may be necessary or, in the
opinion of Administrative Agent, desirable in order to create in favor of
Administrative Agent, for the benefit of Lenders, a valid and (upon such filing
and recording) perfected First Priority security interest in the Pledged
Collateral. Such actions shall include the following:
(i) STOCK CERTIFICATES. Delivery to Administrative Agent of
certificates (which certificates shall be accompanied by irrevocable
undated stock powers, duly endorsed in blank and otherwise satisfactory
in form and substance to Administrative Agent) representing all capital
stock Pledged Collateral; and
(ii) UCC FINANCING STATEMENTS. Delivery to Administrative
Agent of UCC financing statements duly executed by each applicable Loan
Party (if required) with respect to the Collateral, for filing in all
jurisdictions as may be necessary or, in the opinion of Administrative
Agent, desirable to perfect the security interests created in such
Collateral pursuant to the Collateral Documents.
K. MATTERS RELATING TO EXISTING INDEBTEDNESS OF COMPANY AND
ITS SUBSIDIARIES.
(i) TERMINATION OF EXISTING CREDIT AGREEMENT AND RELATED
LIENS; EXISTING LETTERS OF CREDIT. On the Closing Date, Company and its
Subsidiaries shall have (a) repaid in full all Indebtedness outstanding
under the Existing Credit Agreement (the aggregate principal amount of
which Indebtedness constituting Loans shall not exceed $464,000,000), (b)
terminated any commitments to lend or make other extensions of credit
thereunder, (c) delivered to Administrative Agent all documents or
instruments necessary to release all Liens securing Indebtedness or other
obligations of Company and its Subsidiaries thereunder, and (d) made
arrangements satisfactory to Administrative Agent with respect to the
cancellation of any letters of credit outstanding thereunder or the
issuance of Letters of Credit to support the obligations of Company and
its Subsidiaries with respect thereto or that such Letters of Credit will
constitute Existing Letters of Credit hereunder.
(ii) EXISTING INDEBTEDNESS TO REMAIN OUTSTANDING.
Administrative Agent shall have received an Officer's Certificate of
Company stating that, after giving effect to the transactions described
in this subsection 4.1K, the Indebtedness of Loan Parties (other than
Indebtedness and unfunded credit facilities of Company and its
Subsidiaries under the Loan Documents) shall consist of (a) the Existing
Subordinated Notes and approximately $39,200,000 in aggregate principal
amount of other
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outstanding Indebtedness described in Part I of SCHEDULE 7.1 annexed
hereto and (b) Indebtedness in an aggregate amount not to exceed
$2,000,000 in respect of Capital Leases described in Part II of SCHEDULE
7.1 annexed hereto.
L. FEES. Company shall have paid to Administrative Agent,
for distribution (as appropriate) to the Agents and Lenders, the fees payable on
the Closing Date referred to in subsection 2.3 and shall have paid to
Administrative Agent for distribution to Joint Lead Arrangers such fees as shall
have been agreed upon among Company and such Joint Lead Arrangers.
M. COMPLETION OF PROCEEDINGS. All corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel
shall be satisfactory in form and substance to Administrative Agent and such
counsel, and Administrative Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents as Administrative
Agent may reasonably request.
4.2 CONDITIONS TO ALL LOANS.
The obligations of Lenders to make Loans on each Funding Date are
subject to the following conditions precedent:
A. Administrative Agent shall have received on or before
that Funding Date, in accordance with the provisions of subsection 2.1B, an
executed Notice of Borrowing, in each case signed by the chief executive
officer, the chief financial officer or the treasurer of Company or by any
officer of Company designated by any of the above-described officers on behalf
of Company in a writing delivered to Administrative Agent; and
B. as of that Funding Date:
(i) The representations and warranties contained herein and
in the other Loan Documents shall be true and correct in all material
respects on and as of that Funding Date to the same extent as though made
on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all
material respects on and as of such earlier date;
(ii) No event shall have occurred and be continuing or would
result from the consummation of the borrowing contemplated by such Notice
of Borrowing that would constitute an Event of Default or a Potential
Event of Default.
4.3 CONDITIONS TO LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder (whether or not
the applicable Issuing Lender is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:
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A. On or before the date of issuance of the initial Letter
of Credit pursuant to this Agreement, the initial Loans shall have been made;
B. On or before the date of issuance of such Letter of
Credit, Administrative Agent shall have received, in accordance with the
provisions of subsection 3.1B(i), an originally executed Notice of Request for
Issuance of Letter of Credit, in each case signed by the chief executive
officer, the chief financial officer or the treasurer of Company or by any
officer of Company designated by any of the above-described officers on behalf
of Company in a writing delivered to Administrative Agent, together with all
other information specified in subsection 3.1B(i); and
C. On the date of issuance of such Letter of Credit, all
conditions precedent described in subsection 4.2B shall be satisfied to the same
extent as if the issuance of such Letter of Credit were the making of a Loan and
the date of issuance of such Letter of Credit were a Funding Date.
SECTION 5. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to
make the Loans, to induce Issuing Lenders to issue Letters of Credit and to
induce other Revolving Lenders to purchase participations therein, Company
represents and warrants to each Lender, on the date of this Agreement, on each
Funding Date and on the date of issuance of each Letter of Credit, that the
following statements are true, correct and complete:
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES.
A. ORGANIZATION AND POWERS. Company and each Material
Subsidiary is a corporation, partnership, trust or limited liability company
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization as specified in SCHEDULE 5.1 annexed hereto and has
all requisite corporate power and authority to own and operate its properties
and to carry on its business as now conducted and as proposed to be conducted.
Each Loan Party has all requisite corporate power and authority to enter into
the Loan Documents to which it is a party and to carry out the transactions
contemplated thereby.
B. QUALIFICATION AND GOOD STANDING. Company and each
Material Subsidiary is qualified to do business and in good standing in every
jurisdiction where its assets are located and wherever necessary to carry out
its business and operations, except to the extent that the failure to be so
qualified or in good standing has not had and will not have a Material Adverse
Effect.
C. SUBSIDIARIES. All of the Subsidiaries and Unrestricted
Subsidiaries of Company as of the Closing Date and their jurisdictions of
organization are identified in SCHEDULE 5.1 annexed hereto. The capital stock of
each of the Subsidiaries of Company identified in SCHEDULE 5.1 annexed hereto is
duly authorized, validly issued, fully paid and nonassessable and none of such
capital stock constitutes Margin Stock. SCHEDULE 5.1 annexed hereto correctly
sets forth, as of the Closing Date, the ownership interest of Company and each
of its Subsidiaries in each of the Subsidiaries of Company identified
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therein. To the best knowledge of Company, each Material Subsidiary as of the
Closing Date has been so designated on said SCHEDULE 5.1.
5.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and
performance of the Loan Documents have been duly authorized by all necessary
corporate action on the part of each Loan Party that is a party thereto.
B. NO CONFLICT. The execution, delivery and performance by
Loan Parties of the Loan Documents to which they are parties and the
consummation of the transactions contemplated by the Loan Documents do not and
will not (i) violate any provision of any material law or any material
governmental rule or regulation applicable to Company or any of its Material
Subsidiaries or any other Loan Party, the Organizational Documents of Company or
any of its Subsidiaries, or any material order, judgment or decree of any court
or other agency of government binding on Company or any of its Material
Subsidiaries or any other Loan Party, (ii) conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Company or any of its Material Subsidiaries or any
other Loan Party, or (iii) result in or require the creation or imposition of
any Lien under any such Contractual Obligation upon any of the properties or
assets of Company or any of its Subsidiaries (other than any Liens created under
any of the Loan Documents in favor of Collateral Agent on behalf of Lenders and
the PBGC).
C. GOVERNMENTAL CONSENTS. The execution, delivery and
performance by Loan Parties of the Loan Documents to which they are parties and
the consummation of the transactions contemplated by the Loan Documents do not
and will not require any registration with, consent or approval of, or notice
to, or other action to, with or by, any federal, state or other governmental
authority or regulatory body except (i) any thereof that have been obtained and
are in full force and effect and (ii) as of the Closing Date with respect to the
consummation of the transactions contemplated by subsection 4.1K, any thereof
which the failure to obtain or make could not reasonably be expected to have a
Material Adverse Effect.
D. BINDING OBLIGATION. Each of the Loan Documents has been
duly executed and delivered by each Loan Party that is a party thereto and is
the legally valid and binding obligation of such Loan Party, enforceable against
such Loan Party in accordance with its respective terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
5.3 FINANCIAL CONDITION.
Company has heretofore delivered to Lenders, at Lenders' request,
the financial statements and information described in subsection 4.1D. All such
statements were prepared in conformity with GAAP except as otherwise noted
therein and fairly present, in all material respects, the financial position (on
a consolidated basis) of the entities described in such financial statements as
at the respective dates thereof and the results of operations and
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cash flows (on a consolidated basis) of the entities described therein for each
of the periods then ended.
5.4 NO MATERIAL ADVERSE EFFECT.
Since December 31, 2002, no event or change has occurred that has
caused or evidences, either in any case or in the aggregate, a Material Adverse
Effect.
5.5 TITLE TO PROPERTIES; LIENS.
Company and each of its Subsidiaries have good title to, or
leasehold interests in, all properties that are necessary for the conduct of
their respective businesses as now conducted and as proposed to be conducted,
free and clear of all Liens (other than any Liens permitted by this Agreement),
except where the failure to have such good title or leasehold interests could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
5.6 LITIGATION; ADVERSE FACTS.
Except as set forth in SCHEDULE 5.6 annexed hereto, there are no
actions, suits, proceedings, arbitrations or governmental investigations
(whether or not purportedly on behalf of Company or any of its Subsidiaries) at
law or in equity, or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign (including any Environmental Claims) that are pending or, to
the knowledge of Company, threatened against or affecting Company or any of its
Subsidiaries that, individually or in the aggregate (taking into consideration,
among other things, the ability of Company and its Subsidiaries to obtain
indemnification in respect thereof from Persons that are willing and able to
honor any existing indemnification obligations with respect thereto), could
reasonably be expected to result in a Material Adverse Effect.
5.7 PAYMENT OF TAXES.
Each of Company, each of its Subsidiaries and each other
corporation (each a "CONSOLIDATED CORPORATION") with whom Company or any of its
Subsidiaries joins in the filing of a consolidated return has filed all Federal
income tax returns and other material tax returns and reports, domestic and
foreign, required to be filed by it, and has paid all material taxes,
assessments, fees and other governmental charges levied or imposed upon it or
its respective properties, income or assets to the extent the same have become
due and payable, except those which are not yet delinquent or which are being
contested in good faith. Each of Company, each of its Subsidiaries and each
Consolidated Corporation has paid, or has provided adequate reserves (in the
good faith judgment of the management of Company) in accordance with GAAP (or,
in the case of a Foreign Subsidiary, appropriate reserves under generally
accepted accounting principles in the applicable jurisdiction), for the payment
of, all such material taxes, assessments, fees and charges relating to all prior
taxable years and the current taxable year of Company, each of its Subsidiaries
and each Consolidated Corporation. To the best knowledge of Company, there is no
proposed tax assessment
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against Company, any of its Subsidiaries or any Consolidated Corporation that
could reasonably be expected to have a Material Adverse Effect.
5.8 GOVERNMENTAL REGULATION.
Neither the making of any extension of credit hereunder, nor the
use of any of the proceeds thereof, will violate the provisions of Regulation T,
U or X of the Board of Governors of the Federal Reserve System. Company is not
an "investment company" within the meaning of the Investment Company Act of
1940.
5.9 EMPLOYEE BENEFIT PLANS.
A. Company and each of its Subsidiaries is in compliance
with all applicable provisions of ERISA, the Internal Revenue Code and other
applicable federal, state or foreign law with respect to each Plan, and has
performed all of its obligations under each Plan, except to the extent that
failure to comply, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect. Company, each of its Subsidiaries
and each ERISA Affiliate has made all required contributions to any Plan subject
to Section 412 of the Internal Revenue Code, except to the extent that a failure
to do so could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Internal
Revenue Code has been made with respect to any Plan.
B. There are no pending or, to the best knowledge of
Company, threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Pension Plan which, individually or in the
aggregate, have 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 in an amount
which, individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), could reasonably be expected to have a Material
Adverse Effect if such Pension Plan or Pension Plans were then terminated,
unless such Pension Plan is not reasonably likely to be terminated; and (iii)
neither Company nor any of its Subsidiaries nor any ERISA Affiliate has engaged
in a transaction that could be subject to Section 4069 or 4212(c) of ERISA that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
5.10 ENVIRONMENTAL PROTECTION.
Company and each of its Subsidiaries is in compliance with all
applicable Environmental Laws in respect of the conduct of its business and the
ownership of its property, except such noncompliance as could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Without limiting the effect of the preceding sentence:
(a) neither Company nor any of its Subsidiaries has
received a complaint, order, citation, notice or other written
communication with respect
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to the existence or alleged existence of a violation of, or
liability arising under, any Environmental Law, the outcome of
which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect; and
(b) to the best of Company's knowledge, after due
inquiry, there are no environmental, health or safety conditions
existing or reasonably expected to exist at any real property
owned, operated, leased or used by Company or any of its existing
or former Subsidiaries or any of their respective predecessors,
including off-site treatment or disposal facilities used by
Company or its existing or former Subsidiaries for wastes
treatment or disposal, which could reasonably be expected to
require any construction or other capital costs or clean-up
obligations to be incurred prior to the final scheduled maturity
of the Tranche B Term Loans in order to assure compliance with
any Environmental Law, including provisions regarding clean-up,
to the extent that any of such conditions, construction or other
capital costs or clean-up obligations, individually or in the
aggregate, could reasonably be expected to have a Material
Adverse Effect.
5.11 DISCLOSURE.
All factual information (taken as a whole) furnished by or on
behalf of Company or any of its Subsidiaries to Administrative Agent or any
Lender in writing on or before the Closing Date (including any such information
contained in the Confidential Information Memorandum or in any Loan Document or
any other document, certificate or written statement furnished to Lenders by or
on behalf of Company or any of its Subsidiaries) for use in connection with the
transactions contemplated by this Agreement is true and correct in all material
respects and does not omit to state a material fact necessary in order to make
the statements contained herein and therein, taken as a whole, not misleading at
such time in light of the circumstances in which the same were made, it being
understood that, for purposes of this subsection 5.11, such factual information
does not include projections and pro forma financial information. Any
projections and pro forma financial information contained in such materials are
based upon good faith estimates and assumptions believed by Company to be
reasonable at the time made, it being recognized by Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
from the projected results.
SECTION 6. AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior written
consent, Company shall perform, and shall cause each of its Subsidiaries to
perform, all covenants in this Section 6.
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6.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Company will deliver to Administrative Agent and Lenders:
(i) QUARTERLY FINANCIALS: (a) no later than the date on which
such financial statements are filed with the SEC, the consolidated
balance sheet of Company, its Subsidiaries and its Unrestricted
Subsidiaries as at the end of the first three Fiscal Quarters of each
Fiscal Year and the related consolidated statements of income,
stockholders' equity and cash flows of Company, its Subsidiaries and its
Unrestricted Subsidiaries for such Fiscal Quarter and for the period from
the beginning of the then current Fiscal Year to the end of such Fiscal
Quarter, and (b) promptly when available but in any event no later than
60 days after the end of the first three Fiscal Quarters of each Fiscal
Year, the consolidated balance sheet of Company and its Subsidiaries as
at the end of each Fiscal Quarter and the related consolidated statements
of income, stockholders' equity and cash flows of Company and its
Subsidiaries for such Fiscal Quarter and for the period from the
beginning of the then current Fiscal Year to the end of such Fiscal
Quarter, setting forth in each case (under both clauses (a) and (b)
above) in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year, all in reasonable
detail and certified (in the case of both clauses (a) and (b) above) by
the chief financial officer of Company that they fairly present, in all
material respects, the financial condition of Company, its Subsidiaries
and its Unrestricted Subsidiaries or Company and its Subsidiaries, as the
case may be, as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, subject to
changes resulting from audit and normal year-end adjustments;
(ii) YEAR-END FINANCIALS: (a) no later than the date on which
such financial statements are filed with the SEC, the consolidated
balance sheet of Company, its Subsidiaries and its Unrestricted
Subsidiaries as at the end of each Fiscal Year and the related
consolidated statements of income, stockholders' equity and cash flows of
Company, its Subsidiaries and its Unrestricted Subsidiaries for such
Fiscal Year, (b) promptly when available but in any event no later than
120 days after the end of each Fiscal Year, the consolidated balance
sheet of Company and its Subsidiaries as at the end of such Fiscal Year
and the related consolidated statements of income, stockholders' equity
and cash flows of Company and its Subsidiaries for such Fiscal Year,
setting forth in each case (under both clauses (a) and (b) above) in
comparative form the corresponding figures for the previous Fiscal Year,
all in reasonable detail and certified (in the case of both clauses (a)
and (b) above) by the chief financial officer of Company that they fairly
present, in all material respects, the financial condition of Company and
its Subsidiaries as at the end of such Fiscal Year and the results of
their operations and their cash flows for such Fiscal Year, and (c) in
the case of both clauses (a) and (b) above), a report thereon of a firm
of independent certified public accountants of recognized national
standing selected by Company, which report shall be unqualified as to the
scope of audit or as to the going concern status of Company, its
Subsidiaries and its Unrestricted Subsidiaries or Company and its
Subsidiaries, as the case may be (in either case taken as a whole), and
shall state that such consolidated financial statements fairly present,
in all material respects, the
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consolidated financial condition of Company, its Subsidiaries and its
Unrestricted Subsidiaries or Company and its Subsidiaries, as the case
may be, as at the end of such Fiscal Year and the results of their
operations and their cash flows for such Fiscal Year in conformity with
GAAP applied on a basis consistent with prior years (except as otherwise
disclosed in such financial statements) and that the examination by such
accountants in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards;
(iii) OFFICERS' AND COMPLIANCE CERTIFICATES: together with
each delivery of financial statements of Company and its Subsidiaries
pursuant to subdivisions (i) and (ii) above, (a) an Officer's Certificate
of Company stating that the signers do not have knowledge of the
existence, as at the date of such Officer's Certificate, of any condition
or event that constitutes an Event of Default or Potential Event of
Default, or, if any such condition or event exists, specifying the nature
and period of existence thereof and what action Company has taken, is
taking and proposes to take with respect thereto; (b) a Compliance
Certificate demonstrating in reasonable detail compliance during and at
the end of the applicable accounting periods with the covenants set forth
in subsection 7.6 and with any specific dollar amounts specified in
respect of any restrictions contained in any other provisions of Section
7; (c) in the event the identity of any of the Subsidiaries or
Unrestricted Subsidiaries of Company has changed since the Closing Date
(or, if applicable, since the date of the most recent Officer's
Certificate delivered to Lenders in accordance with this clause (c)), an
Officer's Certificate setting forth such change; (d) the amount of any
Pro Forma Adjustment not previously set forth in any Pro Forma Adjustment
Certificate or any change in the amount of a Pro Forma Adjustment set
forth in any Pro Forma Adjustment Certificate previously provided and, in
either case, in reasonable detail, the calculations and basis therefor,
and (e) at the time of the delivery of the financial statements pursuant
to subdivision (ii) above, the Available Amount as at the end of the
Fiscal Year to which such statements relate;
(iv) ACCOUNTANTS' CERTIFICATION: together with each delivery
of consolidated financial statements of Company and its Subsidiaries
pursuant to subdivision (ii) above, a written statement by the
independent certified public accountants giving the report thereon
stating whether, in connection with their audit examination, any
condition or event that constitutes an Event of Default under subsection
7.6 has come to their attention and, if such a condition or event has
come to their attention, specifying the nature thereof, except to the
extent that the delivery of such statement would be prohibited by
professional auditing standards applicable to such matters;
(v) SEC FILINGS: promptly after the transmission thereof by
Company or any of its Subsidiaries to the SEC, copies of any filings on
Form 10-K, 10-Q, or 8-K and any effective registration statements (and,
upon the effectiveness thereof, any material amendments thereto) filed
with the SEC (but not any exhibits to any such registration statement or
amendment (except as provided below) or any registration statement on
Form S-8), and copies of all financial statements, proxy statements,
notices and reports that Company or any of its Subsidiaries actually
sends to the holders of any publicly-issued debt Securities of Company or
any of its Subsidiaries
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(including the Subordinated Indebtedness) in their capacity as such
holders (in each case to the extent not theretofore delivered to Lenders
pursuant to this Agreement and in each case including, to the extent
requested by Administrative Agent, any schedules and exhibits thereto),
in each case as so transmitted to the SEC;
(vi) EVENTS OF DEFAULT, ETC.: promptly upon any Responsible
Officer of Company obtaining actual knowledge of (a) any condition or
event that constitutes an Event of Default or Potential Event of Default
or (b) any acceleration, redemption or purchase demands or notices
provided by the trustee for, or any event of default under, any
Subordinated Indebtedness, a notice specifying the nature and period of
existence of such condition or event or specifying the notice given by
such trustee or the nature of such event of default, and what action
Company has taken, is taking and proposes to take with respect thereto;
(vii) LITIGATION OR OTHER PROCEEDINGS: promptly upon any
Responsible Officer of Company obtaining actual knowledge of (X) the
institution of any action, suit, proceeding (whether administrative,
judicial or otherwise), governmental investigation or arbitration against
or affecting Company or any of its Subsidiaries or any property of
Company or any of its Subsidiaries (collectively, "PROCEEDINGS") not
previously disclosed in writing by Company to Lenders or (Y) any material
development in any Proceeding that, in any such case, could reasonably be
expected to give rise to a Material Adverse Effect, written notice
thereof together with such other information as may be reasonably
available to Company to enable Lenders and their counsel to evaluate such
matters;
(viii) ERISA EVENTS: promptly upon any Responsible Officer of
Company obtaining knowledge of the occurrence or forthcoming occurrence
of any ERISA Event, a written notice specifying the nature thereof and
what action Company, any of its Subsidiaries or any of their respective
ERISA Affiliates has taken, is taking or proposes to take with respect
thereto; promptly upon receipt thereof, copies of any notice received by
Company, any of its Subsidiaries or any of their respective ERISA
Affiliates from the Internal Revenue Service, the Department of Labor or
the PBGC or from a Multiemployer Plan sponsor concerning any ERISA Event;
concurrently with the delivery of such notices to the PBGC, to the extent
not otherwise delivered to Administrative Agent under this Agreement,
copies of all notices delivered to the PBGC pursuant to Sections 3.3, 3.4
and 4.4 of the Settlement Agreement, effective as of May 14, 1997,
between Company and the PBGC; promptly upon execution thereof, copies of
all amendments, modifications, waivers or supplements to the PBGC
Agreements;
(ix) FINANCIAL PLANS: as soon as practicable and in any event
no later than 60 days after the beginning of each Fiscal Year,
consolidated operating and related budgets for Company and its
Subsidiaries for each Fiscal Quarter of such Fiscal Year (the "FINANCIAL
PLAN" for such Fiscal Year), in reasonable detail as customarily prepared
by management of Company for its internal use and setting forth an
explanation of the principal assumptions on which such budgets are based;
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(x) ENVIRONMENTAL AUDITS AND REPORTS: as soon as practicable
following receipt thereof, copies of all environmental audits,
investigations, analyses and reports of any kind or character, whether
prepared by personnel of Company or any of its Subsidiaries or by
independent consultants, governmental authorities or any other Persons,
with respect to significant environmental matters at any Real Estate (as
defined in subsection 6.1(xi)(1)) which, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect or with respect to any Environmental Claims which, individually or
in the aggregate, could reasonably be expected to result in a Material
Adverse Effect;
(xi) NOTICE OF CERTAIN ENVIRONMENTAL MATTERS: promptly upon
any Responsible Officer of Company obtaining knowledge of any one or more
of the following environmental matters the existence of which, either
individually or when aggregated with all other such matters, would
reasonably be expected to result in a Material Adverse Effect, a written
notice specifying in reasonable detail the nature thereof and what action
Company and its Subsidiaries have taken, are taking or propose to take
with respect thereto:
(1) any pending or threatened Environmental Claim
against Company or any of its Subsidiaries or any land,
buildings and improvements owned or leased by Company or
any of its Subsidiaries (but excluding all operating
fixtures and equipment, whether or not incorporated into
improvements) (collectively, "REAL ESTATE");
(2) any condition or occurrence that (x) results in
noncompliance by Company or any of its Subsidiaries with
any applicable Environmental Law or (y) could reasonably
be anticipated to form the basis of an Environmental
Claim against Company or any of its Subsidiaries or any
Real Estate;
(3) any condition or occurrence on any Real Estate
that could reasonably be anticipated to cause such Real
Estate to be subject to any restrictions on the
ownership, occupancy, use or transferability of such Real
Estate under any Environmental Law; or
(4) the taking of any removal or remedial action in
response to the actual or alleged presence of any
Hazardous Material on any Real Estate;
(xii) PRO FORMA ADJUSTMENT CERTIFICATE: not later than the
consummation of any Acquisition by Company or any of its Subsidiaries for
which there shall be a Pro Forma Adjustment, an Officer's Certificate of
Company setting forth the amount of such Pro Forma Adjustment and, in
reasonable detail, the calculations and basis therefor;
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(xiii) RATINGS: promptly upon any Responsible Officer of Company
obtaining actual knowledge thereof, notice of any change in the S&P
Rating or the ▇▇▇▇▇'▇ Rating; and
(xiv) OTHER INFORMATION: with reasonable promptness, such other
information and data with respect to Company or any of its Subsidiaries
as from time to time may be reasonably requested by Administrative Agent
on its own behalf or on behalf of Requisite Lenders.
6.2 CORPORATE EXISTENCE, ETC.
Except as permitted under subsection 7.7, Company will, and will
cause each of its Subsidiaries to, at all times preserve and keep in full
force and effect (i) its corporate existence (except, in the case of a
Subsidiary of Company only, to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect) and (ii) all rights
and franchises material to its business (except, in any case, to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect).
6.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
Company will, and will cause each of its Subsidiaries to, pay all
material taxes, assessments and other governmental charges imposed upon it
or any of its properties or assets or in respect of any of its income,
businesses or franchises before any material penalty accrues thereon, and all
lawful material claims (including claims for labor, services, materials and
supplies) for sums that have become due and payable and that by law have become
or could reasonably be expected to become a material Lien upon any of the
properties or assets of Company or any of its Subsidiaries; PROVIDED that no
such charge or claim need be paid if it is being contested in good faith and by
proper proceedings, so long as it has maintained adequate reserves (in the good
faith judgment of Company or such Subsidiary) with respect thereto in accordance
with GAAP.
6.4 MAINTENANCE OF PROPERTIES; INSURANCE.
A. MAINTENANCE OF PROPERTIES. Company will, and will cause
each of its Subsidiaries to, maintain or cause to be maintained in good repair,
working order and condition, ordinary wear and tear excepted, all material
properties used or useful in the business of Company and its Subsidiaries
(including all Intellectual Property) and from time to time will make or cause
to be made all appropriate repairs, renewals and replacements thereof, in each
case except to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect.
B. INSURANCE. Company will, and will cause each of its
Material Subsidiaries to, at all times maintain in full force and effect, with
insurance companies which Company believes (in the good faith judgment of
Company's management) are financially sound and responsible at the time the
relevant coverage is placed or renewed, insurance in at least such amounts and
against at least such risks (and with such risk retentions) as are usually
insured against in the same general area by companies engaged in the same or a
similar business. Company shall furnish to Lenders, upon written request from
87
Administrative Agent, information presented in reasonable detail as to the
insurance so carried.
6.5 INSPECTION RIGHTS; LENDER MEETING.
A. INSPECTION RIGHTS. Company shall, and shall cause each of
its Material Subsidiaries to, permit any authorized representatives designated
by Administrative Agent or Requisite Lenders to visit and inspect any of the
properties of Company or of any of its Material Subsidiaries, to inspect, copy
and make abstracts from its and their financial and accounting records, and to
discuss its and their affairs, finances and accounts with its and their officers
and independent public accountants (provided that Company may, if it so chooses,
be present at or participate in any such discussion), all upon reasonable notice
and at such reasonable times during normal business hours and as often as may
reasonably be requested.
B. LENDER MEETING. Company will, upon the request of
Administrative Agent and Lenders, participate in a meeting of Administrative
Agent and Lenders once during each Fiscal Year to be held at Company's principal
offices (or at such other location as may be agreed to by Company and
Administrative Agent).
6.6 COMPLIANCE WITH LAWS, ETC.
Company shall comply, and shall cause each of its Subsidiaries to
comply, in all material respects, with the requirements of all applicable
laws, rules, regulations and orders (including all Environmental Laws) of any
governmental authority having jurisdiction over it, except such as may be
contested in good faith or as to which a bona fide dispute may exist and except
to the extent that noncompliance therewith could not reasonably be expected to
cause, individually or in the aggregate, a Material Adverse Effect.
6.7 EXECUTION OF SUBSIDIARY GUARANTY BY FUTURE DOMESTIC SUBSIDIARIES;
PLEDGE OF STOCK OF FUTURE DIRECT SUBSIDIARIES; RATABLE CREDIT
SUPPORT.
A. In the event that any Person (other than a Restricted
Acquisition Subsidiary or a Subsidiary that has incurred Indebtedness permitted
under subsection 7.1(ix)(b)) becomes a Domestic Subsidiary after the Closing
Date, Company will promptly notify each Agent of that fact and cause such
Domestic Subsidiary to execute and deliver to Collateral Agent a counterpart of
the Subsidiary Guaranty. In the event that any Person (other than a Restricted
Acquisition Subsidiary or, subject to subsection 6.7B, a Subsidiary the capital
stock of which is pledged pursuant to 7.2(vi)(b)) becomes a direct Domestic
Subsidiary or a direct Material Foreign Subsidiary after the Closing Date,
Company will promptly notify each Agent of that fact and cause the capital stock
owned by Company of such direct Domestic Subsidiary or such direct Material
Foreign Subsidiary (or, if Company owns 65% or more of any such direct Material
Foreign Subsidiary, 65% of the capital stock of such direct Material Foreign
Subsidiary) to be pledged under the Master Pledge Agreement (or, if any such
direct Domestic Subsidiary is a limited liability company, under the LLC Pledge
Agreement) and, in the case of any such direct Material Foreign Subsidiary, also
under any pledge agreements or instruments that the Collateral Agent deems
88
necessary or advisable, or that the Collateral Agent may reasonably request,
pursuant to the terms of the Master Pledge Agreement to effectuate such pledge
in the jurisdiction in which such Material Foreign Subsidiary is organized.
B. In the event that any Subsidiary of Company has
guaranteed any Indebtedness incurred pursuant to subsection 7.1(ix) in an
aggregate principal amount exceeding $125,000,000, or has granted any security
interests as collateral therefor, such Subsidiary shall (i) guaranty the
Obligations hereunder and under the other Loan Documents on a PARI PASSU basis
with its guaranty of any portion of such Indebtedness exceeding $125,000,000 and
shall grant Liens on such assets securing the Obligations on an equal and
ratable basis with the security for such Indebtedness pursuant to documentation
reasonably satisfactory to Administrative Agent and Requisite Lenders and (ii)
execute and deliver to Collateral Agent all such documents and instruments as
may be necessary or, in the opinion of Collateral Agent, desirable, in order to
more fully evidence, perfect or protect such security interest.
6.8 SPRINGING LIEN.
As soon as practicable but in any event no later than (i) 60
days, in the case of real property, or (ii) 30 days, in the case of any other
property, of the occurrence of the Trigger Date, and from time to time
thereafter, Company shall, and shall cause its Subsidiaries to, take all such
actions as may be necessary (x) to provide Collateral Agent with First Priority
perfected Liens (the "ADDITIONAL LIENS") on all present and future tangible and
intangible real, personal and mixed property (other than the Pledged Collateral
which will continue to be subject to the Pledge Agreements and the Intercreditor
Agreement as in effect prior to the Trigger Date and property located outside of
the United States or property owned by Foreign Subsidiaries, but including,
without limitation, all other accounts receivable, equipment, inventory, general
intangibles, intellectual property and equity interests in Domestic Subsidiaries
and, if requested by Collateral Agent, 65% of the capital stock of each of
Company's direct Foreign Subsidiaries not pledged to the Collateral Agent
pursuant to the Pledge Agreements) of Company and Subsidiary Guarantors securing
the Obligations of Loan Parties under the Loan Documents and under any Hedge
Agreement with any Lender or Affiliate of a Lender including, without
limitation, execution and delivery of security agreements, financing statements,
mortgages, control account agreements, stock pledge agreements and other
security documents or instruments, amendments to the Loan Documents,
authorization documents and opinions of counsel and (y) to otherwise evidence,
perfect and protect such Additional Liens; PROVIDED that such security
agreements, financing statements, mortgages, control account agreements, stock
pledge agreements and other security documents or instruments, amendments to
Loan Documents, authorization documents and opinions of counsel will be on terms
and conditions customary for leveraged transactions of this type (taking into
account comparable KKR precedents to the extent deemed appropriate by
Administrative Agent) and subject to other terms and exceptions to be mutually
agreed. In addition, in the event that the Trigger Date occurs and the PBGC
Agreements have not been terminated, the Additional Liens will secure the
Termination Liabilities (as defined in the PBGC Agreements) on an equal and
ratable basis with the Obligations pursuant to documentation reasonably
satisfactory to Administrative Agent.
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6.9 REDEMPTION OF EXISTING SUBORDINATED NOTES.
Within 5 days after the Closing Date, Company shall have caused
irrevocable notice of redemption of the Existing Subordinated Notes to be
given in accordance with the terms of the Existing Subordinated Notes Indenture
(for aggregate consideration, including premiums of approximately $148,750,000
plus accrued interest).
6.10 TRANSACTIONS WITH AFFILIATES.
Company shall, and shall cause each of its Subsidiaries to,
conduct all transactions with any of its Affiliates (other than Company or any
of its Subsidiaries) upon terms that are substantially as favorable to Company
or such Subsidiary as it would obtain in a comparable arm's-length transaction
with a Person not an Affiliate of Company or such Subsidiary; PROVIDED that the
foregoing restrictions shall not apply to (a) the payment of customary annual
fees to KKR and its Affiliates for management, consulting and financial services
rendered to Company and its Subsidiaries, and customary investment banking fees
paid to KKR and its Affiliates for services rendered to Company and its
Subsidiaries in connection with divestitures, acquisitions, financings and other
transactions, (b) reasonable and customary fees paid to members of the Board of
Directors of Company and its Subsidiaries, (c) transactions otherwise expressly
permitted hereunder between Company or any of its Subsidiaries and any such
Affiliate, and (d) transactions between Company or any of its Subsidiaries and
any special purpose entity established in connection with Accounts Receivable
Facility.
6.11 CONDUCT OF BUSINESS.
From and after the Closing Date, Company shall, and shall cause
its Subsidiaries (taken as a whole) to, engage primarily in (i) the lines
of business carried on by Company and its Subsidiaries on the Closing Date, (ii)
other businesses or activities that are reasonably similar thereto or that
constitute a reasonable extension, development or expansion thereof or that are
ancillary or reasonably related thereto.
6.12 FISCAL YEAR.
Company shall maintain its Fiscal Year-end at December 31 of each
year; PROVIDED that Company may, upon prior written notice to Administrative
Agent, change such Fiscal Year-end to any other date reasonably acceptable to
Administrative Agent, in which case Company and Administrative Agent shall, and
are hereby authorized by Lenders to, make any adjustments to this Agreement that
are necessary in order to reflect any corresponding changes in financial
reporting.
6.13 INTEREST RATE PROTECTION.
At all times after the date that is 90 days after the Closing
Date, Company shall maintain in effect one or more Interest Rate Agreements, in
an aggregate notional principal amount of not less than $250,000,000 each such
Interest Rate Agreement to be in form and substance reasonably satisfactory to
Administrative Agent and with a term of not less than three years.
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SECTION 7. NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior written
consent, Company shall perform, and shall cause each of its Subsidiaries to
perform, all covenants in this Section 7.
7.1 INDEBTEDNESS.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or guaranty, or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) Company may become and remain liable with respect to the
Obligations;
(ii) Company and its Subsidiaries may become and remain liable
with respect to Guarantee Obligations permitted under subsection 7.4 and,
upon any matured obligations actually arising pursuant thereto, the
Indebtedness corresponding to the Guarantee Obligations so extinguished;
(iii) Company and its Subsidiaries may become and remain liable
with respect to Indebtedness in respect of Capital Leases in an aggregate
amount not to exceed at any time $50,000,000;
(iv) Company may become and remain liable with respect to
Indebtedness to any of its Subsidiaries, and any Subsidiary of Company
may become and remain liable with respect to Indebtedness to Company or
any other Subsidiary of Company;
(v) Company and its Subsidiaries, as applicable, may remain
liable with respect to Indebtedness described in SCHEDULE 7.1 annexed
hereto;
(vi) Company and its Subsidiaries may become and remain liable
with respect to Indebtedness (a) incurred within 270 days of the
acquisition, construction or improvement of fixed or capital assets to
finance the acquisition, construction or improvement of such fixed or
capital assets or (b) otherwise incurred in respect of Capital
Expenditures permitted under subsection 7.8;
(vii) Company and its Subsidiaries may become and remain liable
with respect to Indebtedness under Hedge Agreements;
(viii) Any Person that becomes a Restricted Acquisition
Subsidiary (a) may remain liable with respect to (X) Indebtedness of such
Person existing at the time of consummation of the Acquisition pursuant
to which such Person becomes a Subsidiary of Company or (Y) Indebtedness
secured by assets acquired by such Person in an Acquisition at the time
of consummation of such Acquisition; PROVIDED that such Indebtedness was
not incurred in contemplation of the Acquisition referred
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to in clause (X) or the acquisition of such assets referred to in clause
(Y), as the case may be, and (b) may become and remain liable with
respect to Indebtedness incurred to finance the Acquisition pursuant to
which such Person becomes a Subsidiary of Company;
(ix) Company and its Subsidiaries (a) may remain liable with
respect to (X) in the case of a Subsidiary, Indebtedness of such
Subsidiary existing at the time of consummation of an Acquisition
pursuant to which such Person becomes a Subsidiary of Company or (Y)
Indebtedness secured by assets acquired by such Person in an Acquisition
at the time of consummation of such Acquisition; PROVIDED that such
Indebtedness was not incurred in contemplation of the Acquisition
referred to in clause (X) or the acquisition of such assets referred to
in clause (Y), as the case may be, and (b) may become and remain liable
with respect to Indebtedness incurred to finance an Acquisition
consummated by such Person, including an Acquisition pursuant to which
such Person becomes a Subsidiary of Company; PROVIDED that the aggregate
outstanding principal amount of all Indebtedness permitted pursuant to
this subsection 7.1(ix) shall at no time exceed $200,000,000;
(x) Company and its Subsidiaries may extend the maturity of,
and may become and remain liable with respect to Indebtedness incurred to
refinance, any Indebtedness permitted under clauses (ii), (v), (vi),
(viii) and (ix) above; PROVIDED that (a) the principal amount of any such
Indebtedness is not increased above the principal amount thereof
outstanding immediately prior to such extension or refinancing and (y)
the direct and contingent obligors with respect to such Indebtedness are
not changed as a result of such extension or refinancing;
(xi) Company and its Subsidiaries may enter into and remain
liable with respect to commodity consignment arrangements in the ordinary
course of business in an aggregate amount not to exceed at any time
$20,000,000; and
(xii) Company and its Subsidiaries may become and remain liable
with respect to other Indebtedness in an aggregate principal amount not
to exceed $200,000,000 at any time outstanding.
7.2 LIENS AND RELATED MATTERS.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or permit to exist any Lien on
or with respect to any property or asset of any kind (including any document or
instrument in respect of goods or accounts receivable) of Company or any of its
Subsidiaries, whether now owned or hereafter acquired, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents;
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(iii) Liens existing on the Closing Date securing Indebtedness
described on SCHEDULE 7.1 annexed hereto in an aggregate principal amount
not to exceed $20,000,000;
(iv) Liens placed on property, plant or equipment used in the
ordinary course of business of Company or any of its Subsidiaries to
secure Indebtedness incurred to pay all or a portion of the purchase
price thereof; PROVIDED that (a) the Lien encumbering such property,
plant or equipment does not encumber any other asset of Company or any of
its Subsidiaries and (b) the Indebtedness secured thereby is permitted
under subsection 7.1(vi);
(v) (a) Liens encumbering assets of a Restricted Acquisition
Subsidiary that are granted to secure Indebtedness permitted under
subsection 7.1(viii) at the time such Indebtedness is assumed by such
Restricted Acquisition Subsidiary; PROVIDED that such Liens are not
granted in contemplation of the Acquisition pursuant to which such Person
becomes a Subsidiary of Company, and (b) Liens encumbering the capital
stock of a Restricted Acquisition Subsidiary that are granted to secure
Indebtedness permitted under subsection 7.1(viii)(b);
(vi) (a) Liens encumbering assets of a Subsidiary of Company
that are granted to secure Indebtedness permitted under subsection
7.1(ix) at the time such Indebtedness is originally incurred and (b)
Liens encumbering the capital stock of a Subsidiary of Company that are
granted to secure Indebtedness permitted under subsection 7.1(ix)(b);
provided that the aggregate outstanding principal amount of Indebtedness
secured by all Liens permitted pursuant to this subsection 7.2(vi) shall
at no time exceed $125,000,000, except to the extent that such Subsidiary
has granted a Lien on the assets securing any portion of such
Indebtedness in excess of $125,000,000 on an equal and ratable basis to
Collateral Agent on behalf of Lenders to secure the Obligations;
(vii) Liens on commodities subject to any arrangement permitted
under subsection 7.1(xi); and
(viii) Other Liens securing Indebtedness in an aggregate amount
not to exceed $25,000,000 at any time outstanding.
7.3 INVESTMENTS; JOINT VENTURES.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, make or own any Investment in any Person, including
any Joint Venture, except:
(i) Company and its Subsidiaries may make and own Investments
in Cash Equivalents;
(ii) Company and its Subsidiaries may make loans and advances
to officers, directors and employees of Company or any of its
Subsidiaries (a) to finance the purchase of capital stock of Company and
(b) in an aggregate principal amount not
93
to exceed $5,000,000 at any time outstanding for additional purposes not
contemplated by the foregoing clause (a);
(iii) Company and its Subsidiaries may make and own Investments
consisting of any non-cash proceeds received by Company or any of its
Subsidiaries in connection with any Asset Sale permitted under subsection
7.7(v);
(iv) Company and its Subsidiaries may continue to own the
Investments owned by them and described in SCHEDULE 7.3 annexed hereto
and Company and its Subsidiaries may make and own Investments purchased
with the proceeds of the sale of any Investments permitted under this
subsection 7.3(iv);
(v) Company and its Subsidiaries may make and own Investments
in special-purpose entities established to purchase accounts receivable
from Company or any of its Subsidiaries pursuant to an Accounts
Receivable Facility; and
(vi) Company and its Subsidiaries may make and own Investments
(collectively, "UNRESTRICTED INVESTMENTS") in addition to those permitted
under clauses (i) through (v) above, including Investments in Restricted
Acquisition Subsidiaries and in Unrestricted Subsidiaries, as follows:
(a) Unrestricted Investments in an aggregate amount not to exceed at any
time (1) $50,000,000 for all such Unrestricted Investments in
Unrestricted Subsidiaries or (2) $100,000,000 for all such Unrestricted
Investments (including all such Unrestricted Investments in Restricted
Acquisition Subsidiaries and Unrestricted Subsidiaries) and (b)
Unrestricted Investments in addition to the Unrestricted Investments
permitted under the preceding clause (a), PROVIDED that after giving
effect to any such additional Unrestricted Investment pursuant to this
clause (b) the Available Amount Usage shall not exceed the Available
Amount.
7.4 GUARANTEE OBLIGATIONS.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create or become or remain liable with respect to
any Guarantee Obligation, except:
(i) Company's Subsidiaries may become and remain liable with
respect to Guarantee Obligations in respect of the Guaranties;
(ii) Company may become and remain liable with respect to
Guarantee Obligations in respect of Letters of Credit;
(iii) Company and its Subsidiaries may become and remain liable
with respect to Guarantee Obligations in respect of customary
indemnification and purchase price adjustment obligations incurred in
connection with Asset Sales or other sales of assets;
(iv) Company and its Subsidiaries may become and remain liable
with respect to Guarantee Obligations under guarantees in the ordinary
course of business
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of the obligations of suppliers, customers, franchisees and licensees of
Company and its Subsidiaries;
(v) Company and its Subsidiaries may become and remain liable
with respect to Guarantee Obligations in respect of any Indebtedness of
Company or any of its Subsidiaries (other than Restricted Acquisition
Subsidiaries) permitted by subsection 7.1; PROVIDED that neither Company
nor any of its Subsidiaries may become or remain liable with respect to
Guarantee Obligations in respect of any Indebtedness permitted under
subsection 7.1(ix)(b) unless such Person becomes a Subsidiary of Company
pursuant to the Acquisition financed with the proceeds of such
Indebtedness or acquires a direct Subsidiary pursuant to such
Acquisition;
(vi) Company and its Subsidiaries, as applicable, may remain
liable with respect to Guarantee Obligations described in SCHEDULE 7.4
annexed hereto; and
(vii) Company and its Subsidiaries may become and remain liable
with respect to other Guarantee Obligations; PROVIDED that the maximum
aggregate liability, contingent or otherwise, of Company and its
Subsidiaries in respect of all such Guarantee Obligations shall at no
time exceed $25,000,000.
7.5 RESTRICTED JUNIOR PAYMENTS.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, declare, order, pay, make or set apart any sum for
any Restricted Junior Payment; PROVIDED that (i) Company may redeem the Existing
Subordinated Notes with the proceeds of the Delayed Draw Term B Loans or to the
extent that after giving effect to such redemption, the Available Amount Usage
shall not exceed the Available Amount and (ii) so long as no Event of Default or
Potential Event of Default has occurred and is continuing or would be caused
thereby, Company may:
(a) repurchase shares of its capital stock (together
with options or warrants in respect of any thereof) held by
officers, directors and employees of Company so long as such
repurchase is pursuant to, and in accordance with the terms of,
management and/or employee stock plans, stock subscription
agreements or shareholder agreements;
(b) purchase, redeem or otherwise acquire shares of
common stock of Company or warrants or options to acquire any
such shares with proceeds received by Company from substantially
concurrent equity contributions or issuances of new shares of its
common stock;
(c) redeem or exchange, in whole or in part, any capital
stock of Company for shares of another class of capital stock of
Company or rights to acquire shares of such other class of
capital stock; PROVIDED that such other class of capital stock
contains terms and provisions (taken as a whole, and taking into
account the relative amounts of the shares of each class of
capital stock involved in such redemption or exchange) that are
at least as
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advantageous to Lenders as those contained in the capital stock
redeemed or exchanged therefor;
(d) repurchase, redeem or otherwise pay or prepay or
retire Subordinated Indebtedness; provided that after giving
effect thereto the Available Amount Usage shall not exceed the
Available Amount; and
(e) make other Restricted Junior Payments; PROVIDED that
on the date (the "DECLARATION DATE") of declaration of any
dividend in respect of Company's outstanding capital stock
pursuant to the terms of this clause (e) or the making of any
other Restricted Junior Payment pursuant to the terms of this
clause (e), (X) the Consolidated Leverage Ratio as of the last
day of the Fiscal Quarter most recently ended shall be less than
3.50:1.00 and (Y) the aggregate amount of any such Restricted
Junior Payment, when added to the aggregate amount of all
Restricted Junior Payments previously declared or (without
duplication) paid by Company pursuant to this clause (e) during
the period commencing on the Closing Date and ending on the
Declaration Date, does not exceed 50% of cumulative Consolidated
Net Income of Company and its Subsidiaries for the period
commencing on the Closing Date and ending on the last day of the
Fiscal Quarter most recently ended.
7.6 FINANCIAL COVENANTS.
A. MINIMUM INTEREST COVERAGE RATIO. Company shall not permit
the ratio of (i) Consolidated Adjusted EBITDA to (ii) Consolidated Interest
Expense for the four-Fiscal Quarter period ending on the last day of any Fiscal
Quarter, commencing with the second Fiscal Quarter in 2003, to be less than
3:00: 1.00.
B. MAXIMUM SENIOR LEVERAGE RATIO. Company shall not permit
the Consolidated Senior Leverage Ratio as of the last day of any Fiscal Quarter
set forth below to exceed the correlative ratio indicated:
MAXIMUM SENIOR
YEAR FISCAL QUARTER LEVERAGE RATIO
---- -------------- --------------
2003 Second 3.80:1.00
Third 3.80:1.00
Fourth 3.80:1.00
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2004 First 3.75:1.00
Second 3.75:1.00
Third 3.50:1.00
Fourth 3.50:1.00
2005 First 3.25:1.00
Second 3.25:1.00
Third 3.25:1.00
Fourth 3.25:1.00
2006 First 3.00:1.00
Second 3.00:1.00
Third 3.00:1.00
Fourth 3.00:1.00
2007 First 2.75:1.00
Second 2.75:1.00
Third 2.75:1.00
Fourth 2.75:1.00
Thereafter 2.75:1.00
C. MAXIMUM LEVERAGE RATIO. Company shall not permit the
Consolidated Leverage Ratio as of the last day of any Fiscal Quarter set forth
below to exceed the correlative ratio indicated:
MAXIMUM
YEAR FISCAL QUARTER LEVERAGE RATIO
---- -------------- --------------
2003 Second 3.80:1.00
Third 3.80:1.00
Fourth 3.80:1.00
2004 First 3.75:1.00
Second 3.75:1.00
Third 3.75:1.00
Fourth 3.75:1.00
2005 First 3.50:1.00
Second 3.50:1.00
Third 3.50:1.00
Fourth 3.50:1.00
2006 First 3.25:1.00
Thereafter 3.25:1.00
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7.7 RESTRICTION ON CERTAIN FUNDAMENTAL CHANGES; ASSET SALES AND
ACQUISITIONS.
Company shall not, and shall not permit any of its Subsidiaries
to, enter into any transaction of merger or consolidation, or liquidate, wind up
or dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of,
in one transaction or a series of transactions, all or any part of its business,
property or assets, whether now owned or hereafter acquired, or make any
Acquisition, except:
(i) any Subsidiary of Company may be merged with or into
Company or any other Subsidiary of Company, and any Subsidiary of Company
may be liquidated, wound up or dissolved, or all or any part of its
business, property or assets (including capital stock of any Subsidiary
of Company) may be conveyed, sold, leased, transferred or otherwise
disposed of, in one transaction or a series of transactions, to Company
or any other Subsidiary of Company; PROVIDED that in the case of any such
merger involving Company, Company shall be the continuing or surviving
corporation;
(ii) Company and its Subsidiaries may make Acquisitions (by
merger or otherwise) so long as, prior to the consummation of any such
Acquisition, Company shall have delivered to Administrative Agent (a)
financial statements for Company and its Subsidiaries for the four
Fiscal-Quarter period most recently ended (the "PRO FORMA TEST PERIOD"),
prepared on a pro forma basis as if such Acquisition had been consummated
on the first day of the Pro Forma Test Period and giving effect to
Company's good faith estimate of any anticipated cost savings or
increases as a result of the consummation thereof, which anticipated cost
savings or increases are reasonably satisfactory to Administrative Agent,
and (b) a pro forma Compliance Certificate demonstrating that, on the
basis of such pro forma financial statements, Company would have been in
compliance with all financial covenants set forth in subsection 7.6 on
the last day of the Pro Forma Test Period;
(iii) Company and its Subsidiaries may dispose of obsolete,
worn out or surplus property in the ordinary course of business and sell
or discount without recourse accounts receivable arising in the ordinary
course of business in connection with the compromise or collection
thereof;
(iv) Company and its Subsidiaries may sell or otherwise
dispose of other assets in transactions that do not constitute Asset
Sales;
(v) Company and its Subsidiaries may make Asset Sales of
assets having a fair value not in excess of $300,000,000 during the term
of this Agreement; PROVIDED that (w) the consideration received in each
such Asset Sale shall be in an amount at least equal to the fair value of
the assets being sold; (x) any non-cash consideration received by Company
in respect of any such Asset Sale in the form of Indebtedness of any
Person in an amount in excess of $5,000,000 shall be evidenced by a
promissory note which shall be pledged by Company to Collateral Agent
pursuant to the Master
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Pledge Agreement as security for the Obligations; and (y) the proceeds of
such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
and
(vi) Investments permitted under subsection 7.3.
7.8 CONSOLIDATED CAPITAL EXPENDITURES.
Company shall not, and shall not permit its Subsidiaries to,
make or incur Consolidated Capital Expenditures, in any Fiscal Year indicated
below, in an aggregate amount in excess of the corresponding amount (the
"MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") set forth below opposite
such Fiscal Year; PROVIDED that the Maximum Consolidated Capital Expenditures
Amount for any Fiscal Year shall be increased by an amount equal to the excess,
if any, of the Maximum Consolidated Capital Expenditures Amount for the previous
Fiscal Year (without giving effect to any adjustment in accordance with this
proviso) over the actual amount of Consolidated Capital Expenditures for such
previous Fiscal Year:
MAXIMUM CONSOLIDATED
FISCAL YEAR CAPITAL EXPENDITURES
----------- --------------------
2003 $ 40,000,000
2004 $ 60,000,000
2005 $ 75,000,000
2006 $ 80,000,000
2007 $ 85,000,000
2008 $ 90,000,000
2009 $ 100,000,000
2010 $ 110,000,000
7.9 AMENDMENTS OF CERTAIN DOCUMENTS.
A. Company shall not, and shall not permit any of its
Subsidiaries to, amend or otherwise change any of the terms of any Subordinated
Indebtedness in a manner that would be adverse to Lenders in any material
respect.
B. Company shall not, and shall not permit any of its
Subsidiaries to, amend or otherwise change any of the terms of the PBGC
Agreements in any manner with respect to the granting, continuation or
termination of Liens on any of the assets of the Company or its Subsidiaries or
the priority of the PBGC or the Lenders with respect to any such Liens.
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SECTION 8. EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF
DEFAULT") shall occur:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by Company to pay any installment of principal of any
Loan when due from Company, whether at stated maturity, by acceleration, by
mandatory prepayment or otherwise; or failure by Company to pay when due any
amount payable to an Issuing Lender in reimbursement of any drawing under a
Letter of Credit; or failure by Company to pay any interest on any Loan or any
fee or any other amount due from Company under this Agreement, in each case
within five days after the date due; or
8.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of Company or any of its Subsidiaries to pay when due
any principal of or interest on or any other amount payable in respect of one or
more items of Indebtedness (other than Indebtedness referred to in subsection
8.1) or Guarantee Obligations with an aggregate principal amount of $20,000,000
or more beyond the end of any grace or notice period provided therefor; or (ii)
breach or default by Company or any of its Subsidiaries with respect to any
other material term of (a) one or more items of Indebtedness or Guarantee
Obligations in the aggregate principal amount referred to in clause (i) above or
(b) any loan agreement, mortgage, indenture or other agreement relating to such
item(s) of Indebtedness or Guarantee Obligation(s), if such breach or default
continues after any applicable grace or notice period provided therefor and the
effect of such breach or default is to cause, or to permit the holder or holders
of that Indebtedness or Contingent Obligation(s) (or a trustee on behalf of such
holder or holders) to cause, that Indebtedness or Contingent Obligation(s) to
become or be declared due and payable prior to its stated maturity or the stated
maturity of any underlying obligation, as the case may be; or
8.3 BREACH OF CERTAIN COVENANTS.
Failure of Company to perform or comply with any term or
condition contained in subsection 6.1(vi)(a) or Section 7; or
8.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement
made by Company or any of its Subsidiaries in any Loan Document or in any
statement or certificate at any time given by Company or any of its Subsidiaries
in writing pursuant hereto or thereto or in connection herewith or therewith
shall be false in any material respect on the date as of which made; or
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Any Loan Party shall default in the performance of or compliance
with any term contained in this Agreement or any of the other Loan Documents,
other than any such term referred to in any other subsection of this Section 8,
and such default shall not have been
100
remedied or waived within 30 days after receipt by Company and such Loan Party
of notice from Administrative Agent or any Lender of such default; or
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of Company or any of its Material
Subsidiaries in an involuntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect,
which decree or order is not stayed; or any other similar relief shall be
granted under any applicable federal, state or foreign law; or (ii) an
involuntary case shall be commenced against Company or any of its Material
Subsidiaries under the Bankruptcy Code or under any other applicable bankruptcy,
insolvency, dissolution, liquidation or similar law now or hereafter in effect;
or a decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or other
officer having similar powers over Company or any of its Material Subsidiaries,
or over all or a substantial part of its property, shall have been entered; or
there shall have occurred the involuntary appointment of an interim receiver,
trustee or other custodian of Company or any of its Material Subsidiaries for
all or a substantial part of its property; or a warrant of attachment, execution
or similar process shall have been issued against any substantial part of the
property of Company or any of its Material Subsidiaries, and any such event
described in this clause (ii) shall continue for 60 days unless dismissed,
bonded or discharged; or
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Company or any of its Material Subsidiaries shall have an
order for relief entered with respect to it or commence a voluntary case under
the Bankruptcy Code or under any other applicable bankruptcy, insolvency,
dissolution, liquidation or similar law (whether federal, state or foreign) now
or hereafter in effect, or shall consent to the entry of an order for relief in
an involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property; or Company or any of its Material Subsidiaries shall make
any assignment for the benefit of creditors; or (ii) Company or any of its
Material Subsidiaries shall fail generally, or shall admit in writing its
inability, to pay its debts as such debts become due; or the Board of Directors
of Company or any of its Material Subsidiaries (or any committee thereof) shall
adopt any resolution or otherwise authorize any action to approve any of the
actions referred to in clause (i) above or this clause (ii); or
8.8 JUDGMENTS AND ATTACHMENTS.
Any money judgments, writs or warrants of attachment or similar
processes involving in the aggregate at any time an amount in excess of
$20,000,000 (to the extent such amount is not adequately covered by insurance as
to which the insurance company has not disputed coverage in writing) shall be
entered or filed against Company or any of its Subsidiaries or any of their
respective assets and shall remain undischarged, unvacated, unbonded or unstayed
for a period of 60 days; or
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8.9 ERISA.
An ERISA Event shall occur with respect to a Pension Plan or
Multiemployer Plan; or
8.10 CHANGE OF CONTROL.
A Change of Control shall occur; or
8.11 MATERIAL INVALIDITY OF GUARANTIES; MATERIAL FAILURE OF SECURITY;
REPUDIATION OF OBLIGATIONS.
At any time after the execution and delivery thereof, (i) any
material provision of the Subsidiary Guaranty or any guaranty entered into by a
Subsidiary of Company pursuant to subsection 6.7B for any reason, other than the
satisfaction in full of all Obligations, shall cease to be in full force and
effect (other than in accordance with its terms) or shall be declared to be null
and void, in either case, as to any material portion of Subsidiary Guarantors
and other Subsidiaries guaranteeing the Obligations, with respect to the
Subsidiary Guaranty and any guaranty entered into pursuant to subsection 6.7B,
(ii) any Collateral Document shall cease to create a valid security interest in
the collateral purported to be covered thereby or shall cease to be in full
force and effect (other than by reason of a release of Collateral thereunder in
accordance with the terms hereof or thereof, the satisfaction in full of the
Obligations or any other termination of such Collateral Document in accordance
with the terms hereof or thereof), in each case to the extent the same affects a
material portion of the Collateral and in each case for any reason other than
any act or omission of either Agent or any Lender, or (iii) any Loan Party shall
deny in writing its obligations under any Loan Document to which it is a party:
THEN (i) upon the occurrence of any Event of Default described in subsection 8.6
or 8.7, each of (a) the unpaid principal amount of and accrued interest on the
Loans, (b) an amount equal to the maximum amount that may at any time be drawn
under all Letters of Credit then outstanding (whether or not any beneficiary
under any such Letter of Credit shall have presented, or shall be entitled at
such time to present, the drafts or other documents or certificates required to
draw under such Letter of Credit), and (c) all other Obligations shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by Company, and the obligation of each Lender to make any Loan, the
obligation of Administrative Agent to issue any Letter of Credit and the right
of any Revolving Lender to issue any Letter of Credit hereunder shall thereupon
terminate, and (ii) upon the occurrence and during the continuation of any other
Event of Default, Administrative Agent shall, upon the written request or with
the written consent of Requisite Lenders, by written notice to Company, declare
all or any portion of the amounts described in clauses (a) through (c) above to
be, and the same shall forthwith become, immediately due and payable, and the
obligation of each Lender to make any Loan, the obligation of Administrative
Agent to issue any Letter of Credit and the right of any Revolving Lender to
issue any Letter of Credit hereunder shall thereupon terminate; PROVIDED that
the foregoing shall not affect in any way the obligations of Revolving Lenders
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under subsection 3.3C(i) or the obligations of Revolving Lenders to purchase
participations in any unpaid Swing Line Loans as provided in subsection
2.1A(iv).
Any amounts described in clause (b) above, when received by
Administrative Agent, shall be paid to Collateral Agent, for the benefit of
Lenders, and held by Collateral Agent, for the benefit of Lenders, as collateral
security for the Obligations of Company in respect of all outstanding Letters of
Credit, and Company hereby (X) grants to Collateral Agent, for the benefit of
Lenders, a security interest in all such amounts, together with any interest
accrued thereon and any Investments of such amounts, as security for the
Obligations, (Y) agrees to execute and deliver to Collateral Agent all such
documents and instruments as may be necessary or, in the opinion of Collateral
Agent, desirable in order to more fully evidence, perfect or protect such
security interest, and (Z) agrees that, upon the honoring by any Issuing Bank of
any drawing under a Letter of Credit issued by it, Collateral Agent is
authorized and directed to apply any amounts held as collateral security in
accordance with the terms of this paragraph to reimburse such Issuing Lender for
the amount of such drawing.
Notwithstanding anything contained in the second preceding
paragraph, if at any time within 60 days after an acceleration of the Loans
pursuant to clause (ii) of such paragraph Company shall pay all arrears of
interest and all payments on account of principal which shall have become due
otherwise than as a result of such acceleration (with interest on principal and,
to the extent permitted by law, on overdue interest, at the rates specified in
this Agreement) and all Events of Default and Potential Events of Default (other
than non-payment of the principal of and accrued interest on the Loans, in each
case which is due and payable solely by virtue of acceleration) shall be
remedied or waived pursuant to subsection 10.6, then Requisite Lenders, by
written notice to Company, may at their option rescind and annul such
acceleration and its consequences; but such action shall not affect any
subsequent Event of Default or Potential Event of Default or impair any right
consequent thereon. The provisions of this paragraph are intended merely to bind
Lenders to a decision which may be made at the election of Requisite Lenders and
are not intended, directly or indirectly, to benefit Company, and such
provisions shall not at any time be construed so as to grant Company the right
to require Lenders to rescind or annul any acceleration hereunder or to preclude
Agents or Lenders from exercising any of the rights or remedies available to
them under any of the Loan Documents, even if the conditions set forth in this
paragraph are met.
SECTION 9. AGENTS
9.1 APPOINTMENT OF ADMINISTRATIVE AGENT.
DB is hereby appointed Administrative Agent hereunder and under
the other Loan Documents and each Lender hereby authorizes Administrative Agent
to act as its agent in accordance with the terms of this Agreement and the other
Loan Documents. Administrative Agent agrees to act upon the express conditions
contained in this Agreement and the other Loan Documents, as applicable. The
provisions of this Section 9 are solely for the benefit of Administrative Agent
and Lenders and Company shall not have any rights as a third party beneficiary
of any of the provisions thereof. In performing its functions and duties under
this Agreement, Administrative Agent shall act solely as an agent of Lenders and
does not assume and shall not be deemed to have assumed any obligation towards
or relationship
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of agency or trust with or for Company or any of its Subsidiaries. No Agent or
any Lender named as a Joint Lead Arranger hereunder shall have any liability to
any Person under this Agreement except in its capacity as a Lender or, if
applicable, an Issuing Lender.
9.2 POWERS AND DUTIES; GENERAL IMMUNITY.
▇. ▇▇▇▇▇▇; DUTIES SPECIFIED. Each Lender irrevocably
authorizes each Agent to take such action on such Lender's behalf and to
exercise such powers, rights and remedies hereunder and under the other Loan
Documents as are specifically delegated or granted to such Agent by the terms
hereof and thereof, together with such powers, rights and remedies as are
reasonably incidental thereto. Each Agent shall have only those duties and
responsibilities that are expressly specified in this Agreement and the other
Loan Documents. Administrative Agent may exercise such powers, rights and
remedies and perform such duties by or through its agents or employees. No Agent
shall have, by reason of this Agreement or any of the other Loan Documents, a
fiduciary relationship in respect of any Lender; and nothing in this Agreement
or any of the other Loan Documents, expressed or implied, is intended to or
shall be so construed as to impose upon any Agent any obligations in respect of
this Agreement or any of the other Loan Documents except as expressly set forth
herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. No Agent shall be
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any
other Loan Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or
in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by such Agent to Lenders or by or on
behalf of Company to such Agent or any Lender in connection with the Loan
Documents and the transactions contemplated thereby or for the financial
condition or business affairs of Company or any other Person liable for the
payment of any Obligations, nor shall such Agent be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Loan Documents or as
to the use of the proceeds of the Loans or the use of the Letters of Credit or
as to the existence or possible existence of any Event of Default or Potential
Event of Default. Anything contained in this Agreement to the contrary
notwithstanding, Administrative Agent shall not have any liability arising from
confirmations of the amount of outstanding Loans or the Letter of Credit Usage
or the component amounts thereof.
C. EXCULPATORY PROVISIONS. Neither Administrative Agent nor
Collateral Agent nor any of their respective officers, directors, employees or
agents shall be liable to Lenders for any action taken or omitted by such Agent
under or in connection with any of the Loan Documents except to the extent
caused by such Agent's gross negligence or willful misconduct. Each Agent shall
be entitled to refrain from any act or the taking of any action (including the
failure to take an action) in connection with this Agreement or any of the other
Loan Documents or from the exercise of any power, discretion or authority vested
in it hereunder or thereunder unless and until such Agent shall have received
instructions in respect thereof from Requisite Lenders (or such other Lenders as
may be required to give such instructions under subsection 10.6) and, upon
receipt of such instructions from Requisite
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Lenders (or such other Lenders, as the case may be), such Agent shall be
entitled to act or (where so instructed) refrain from acting, or to exercise
such power, discretion or authority, in accordance with such instructions.
Without prejudice to the generality of the foregoing, (i) each Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
communication, instrument or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and shall be
entitled to rely and shall be protected in relying on opinions and judgments of
attorneys (who may be attorneys for Company and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii) no Lender shall
have any right of action whatsoever against either Agent as a result of such
Agent acting or (where so instructed) refraining from acting under this
Agreement or any of the other Loan Documents in accordance with the instructions
of Requisite Lenders (or such other Lenders as may be required to give such
instructions under subsection 10.6).
D. AGENTS ENTITLED TO ACT AS LENDERS. The agency hereby
created shall in no way impair or affect any of the rights and powers of, or
impose any duties or obligations upon, an Agent in its individual capacity as a
Lender hereunder. With respect to its participation in the Loans and the Letters
of Credit, an Agent shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not performing the duties and
functions delegated to it hereunder, and the term "Lender" or "Lenders" or any
similar term shall, unless the context clearly otherwise indicates, include such
Agent in its individual capacity. An Agent and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of banking, trust,
financial advisory or other business with Company or any of its Affiliates as if
it were not performing the duties specified herein, and may accept fees and
other consideration from Company for services in connection with this Agreement
and otherwise without having to account for the same to Lenders.
9.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR APPRAISAL
OF CREDITWORTHINESS.
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Company and
its Subsidiaries in connection with the making of the Loans and the issuance of
Letters of Credit hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Company and its Subsidiaries. No Agent
shall have any duty or responsibility, either initially or on a continuing
basis, to make any such investigation or any such appraisal on behalf of Lenders
or to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter, and no Agent shall have any responsibility with
respect to the accuracy of or the completeness of any information provided to
Lenders.
9.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally
agrees to indemnify each Agent to the extent that such Person shall not have
been reimbursed by Company, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
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suits, costs, expenses (including counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against such Person in exercising its powers, rights and remedies
or performing its duties hereunder or under the other Loan Documents or
otherwise in its capacity as Agent, in any way relating to or arising out of
this Agreement or the other Loan Documents; PROVIDED that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the gross negligence or willful misconduct of the indemnified Person. If
any indemnity furnished to an Agent for any purpose shall, in the opinion of
such Person, be insufficient or become impaired, such Person may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished.
9.5 SUCCESSOR AGENTS AND SWING LINE LENDER.
A. SUCCESSOR ADMINISTRATIVE AGENT. Administrative Agent may
resign at any time by giving 30 days' prior written notice thereof to Lenders
and Company. Upon any such notice of resignation, Requisite Lenders shall have
the right, upon five Business Days' notice to Company, to appoint a successor
Administrative Agent acceptable to Company (which acceptance shall not be
unreasonably withheld). Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, that successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent and
the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Section 9 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.
B. SUCCESSOR COLLATERAL AGENT. Any resignation of
Administrative Agent pursuant to subsection 9.5A shall also constitute the
resignation of DB or its successor as Collateral Agent, and any successor
Administrative Agent appointed pursuant to subsection 9.5A shall, upon its
acceptance of such appointment, become the successor Collateral Agent for all
purposes under the Loan Documents. After any resignation of Collateral Agent
hereunder, the provisions of this Section 9 shall inure to its benefit as to any
actions taken or omitted by it while it was Collateral Agent under the Loan
Documents.
C. SUCCESSOR SWING LINE LENDER. Any resignation of
Administrative Agent pursuant to subsection 9.5A shall also constitute the
resignation of DB or its successor as Swing Line Lender, and any successor
Administrative Agent appointed pursuant to subsection 9.5A shall, upon its
acceptance of such appointment, become the successor Swing Line Lender for all
purposes hereunder. In such event (i) Company shall prepay any outstanding Swing
Line Loans made by the retiring Administrative Agent in its capacity as Swing
Line Lender, (ii) upon such prepayment, the retiring Administrative Agent and
Swing Line Lender shall surrender any Swing Line Note held by it to Company for
cancellation, and (iii) if so requested by the successor Administrative Agent
and Swing Line Lender in accordance with subsection 2.1E, Company shall issue a
new Swing Line Note to the successor Administrative Agent and Swing Line Lender
substantially in the form of
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EXHIBIT VII annexed hereto, in the principal amount of the Swing Line Loan
Commitment then in effect and with other appropriate insertions.
9.6 COLLATERAL DOCUMENTS AND GUARANTIES.
Each Lender hereby further authorizes Collateral Agent, on behalf
of and for the benefit of Lenders, to enter into each Collateral Document as
secured party and to be the agent for and representative of Lenders under the
Guaranties and to enter into the Intercreditor Agreement, and each Lender agrees
to be bound by the terms of each Collateral Document, each Guaranty and the
Intercreditor Agreement; PROVIDED that Collateral Agent shall not (i) enter into
or consent to any material amendment, modification, termination or waiver of any
provision contained in any Collateral Document, the Intercreditor Agreement or
the Guaranties or (ii) release any Collateral (except as otherwise expressly
permitted or required pursuant to the terms of this Agreement or the applicable
Collateral Document), in each case without the prior consent of Requisite
Lenders (or such other Lenders as may be required to give such instructions
under subsection 10.6); PROVIDED FURTHER, HOWEVER, that, without further written
consent or authorization from Lenders, Collateral Agent may execute any
documents or instruments necessary to (a) release any Lien encumbering any item
of Collateral that is the subject of a sale or other disposition of assets
permitted by this Agreement or to which Requisite Lenders have otherwise
consented or (b) release any Subsidiary from its Guaranty if all of the capital
stock of such Subsidiary is sold to any Person (other than an Affiliate of
Company) pursuant to a sale or other disposition permitted hereunder or to which
Requisite Lenders have otherwise consented. Anything contained in any of the
Loan Documents to the contrary notwithstanding, Company, Collateral Agent and
each Lender hereby agree that (X) no Lender shall have any right individually to
realize upon any of the Collateral under any Collateral Document or to enforce
the Guaranties, it being understood and agreed that all powers, rights and
remedies under the Collateral Documents and the Guaranties may be exercised
solely by Collateral Agent for the benefit of Lenders in accordance with the
terms thereof, and (Y) in the event of a foreclosure by Collateral Agent on any
of the Collateral pursuant to a public or private sale, Collateral Agent or any
Lender may be the purchaser of any or all of such Collateral at any such sale
and Collateral Agent, as agent for and representative of Lenders (but not any
Lender or Lenders in its or their respective individual capacities unless
Requisite Lenders shall otherwise agree in writing) shall be entitled, for the
purpose of bidding and making settlement or payment of the purchase price for
all or any portion of the Collateral sold at any such public sale, to use and
apply any of the Obligations as a credit on account of the purchase price for
any collateral payable by Collateral Agent at such sale.
SECTION 10. MISCELLANEOUS
10.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS AND LETTERS OF CREDIT.
A. GENERAL. Subject to subsection 10.1B, each Lender shall
have the right at any time (i) to sell, assign or transfer to any Eligible
Assignee, or (ii) to sell participations to any Person in, all or any part of
its Commitments or any Loan or Loans made by it or its Letters of Credit or
participations therein or any other interest herein or in any other Obligations
owed to it; PROVIDED that no such sale, assignment, transfer or
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participation shall, without the consent of Company, require Company to file a
registration statement with the SEC or apply to qualify such sale, assignment,
transfer or participation under the securities laws of any state; PROVIDED,
FURTHER that no such sale, assignment or transfer described in clause (i) above
shall be effective unless and until an Assignment Agreement effecting such sale,
assignment or transfer shall have been accepted by Administrative Agent and
recorded in the Register as provided in subsection 10.1B(ii); PROVIDED, FURTHER
that no such sale, assignment, transfer or participation of any Letter of Credit
or any participation therein may be made separately from a sale, assignment,
transfer or participation of a corresponding interest in the Revolving Loan
Commitment and the Revolving Loans of the Revolving Lender effecting such sale,
assignment, transfer or participation; and PROVIDED, FURTHER that, anything
contained herein to the contrary notwithstanding, the Swing Line Loan Commitment
and the Swing Line Loans of Swing Line Lender may not be sold, assigned or
transferred as described in clause (i) above to any Person other than a
successor Administrative Agent and Swing Line Lender to the extent contemplated
by subsection 9.5. Except as otherwise provided in this subsection 10.1, no
Lender shall, as between Company and such Lender, be relieved of any of its
obligations hereunder as a result of any sale, assignment or transfer of, or any
granting of participations in, all or any part of its Commitments or the Loans,
the Letters of Credit or participations therein, or the other Obligations owed
to such Lender.
B. ASSIGNMENTS.
(i) AMOUNTS AND TERMS OF ASSIGNMENTS. Each Commitment, Loan,
Letter of Credit or participation therein, or other Obligation may (a) be
assigned in any amount to an Eligible Assignee that is another Lender, an
Affiliate or Related Fund (treating any Related Funds as a single
Eligible Assignee) of a Lender, with the giving of notice to Company and
Administrative Agent or (b) be assigned in an aggregate amount of not
less than $1,000,000 (or such lesser amount as shall constitute the
aggregate amount of the Commitments, Loans, Letters of Credit and
participations therein, and other Obligations of the assigning Lender) to
any other Eligible Assignee with the consent of (x) Administrative Agent
(which consent shall not be unreasonably withheld or delayed) and (y) so
long as no Event of Default under subsection 8.6 or 8.7 shall have
occurred and be continuing, Company (which consent shall not be
unreasonably withheld or delayed) EXCEPT in connection with an assignment
pursuant to clause (b) within 45 days after the Closing Date made as part
of the primary syndication of the Loans and Commitments; PROVIDED that if
any such Related Fund subsequently assigns all or any part of its
Commitments, Loans, Letters of Credit or participation therein pursuant
to clause (b), such assignment must be in an amount of at least
$1,000,000 (either individually or when taken together with the amount
assigned by all Related Funds), unless the aggregate amount of
Commitments, Loans, Letters of Credit or participation therein held by
all such Related Funds is less than $1,000,000, in which case such
aggregate amount may be assigned, with the consent of (x) Administrative
Agent (which consent shall not be unreasonably withheld or delayed) and
(y) so long as no Event of Default under subsection 8.6 or 8.7 shall have
occurred and be continuing, Company (which consent shall not be
unreasonably withheld or delayed). To the extent of any such assignment
in accordance with either clause (a) or (b) above, the assigning Lender
shall be relieved
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of its obligations with respect to its Commitments, Loans, Letters of
Credit or participations therein, or other Obligations or the portion
thereof so assigned. The parties to each such assignment shall execute
and deliver to Administrative Agent, for its acceptance and recording in
the Register, an Assignment Agreement, together with a processing and
recordation fee of (i) $3,500 for assignments to Eligible Assignees other
than another Lender, an Affiliate or Related Fund of a Lender and (ii)
$2,000 for assignments to another Lender, an Affiliate or Related Fund of
a Lender and, in each case, such forms, certificates or other evidence,
if any, with respect to United States federal income tax withholding
matters as the assignee under such Assignment Agreement may be required
to deliver to Administrative Agent pursuant to subsections 2.7B(iii)(a).
Upon such execution, delivery, acceptance and recordation, from and after
the effective date specified in such Assignment Agreement, (x) the
assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to
such Assignment Agreement, shall have the rights and obligations of a
Lender hereunder and (y) the assigning Lender thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment Agreement, relinquish its rights (other than
any rights which survive the termination of this Agreement under
subsection 10.8B) and be released from its obligations under this
Agreement (and, in the case of an Assignment Agreement covering all or
the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto;
PROVIDED that, anything contained in any of the Loan Documents to the
contrary notwithstanding, if such Lender is the Issuing Lender with
respect to any outstanding Letters of Credit such Lender shall continue
to have all rights and obligations of an Issuing Lender with respect to
such Letters of Credit until the cancellation or expiration of such
Letters of Credit and the reimbursement of any amounts drawn thereunder).
The Commitments hereunder shall be modified to reflect the Commitment of
such assignee and any remaining Commitment of such assigning Lender and,
if any such assignment occurs after the issuance of any Notes hereunder,
the assigning Lender shall, upon the effectiveness of such assignment or
as promptly thereafter as practicable, surrender its applicable Notes, if
any, to Administrative Agent for cancellation, and thereupon new Notes
shall, if so requested by the assignee and/or the assigning Lender in
accordance with subsection 2.1E, be issued to the assignee and to the
assigning Lender, substantially in the form of EXHIBIT IV, EXHIBIT V or
EXHIBIT VI annexed hereto, as the case may be, with appropriate
insertions, to reflect the new Commitments and/or outstanding Tranche A
Term Loans and/or Tranche B Term Loans, and/or Revolving Loans, as the
case may be, of the assignee and the assigning Lender.
(ii) ACCEPTANCE BY ADMINISTRATIVE AGENT; RECORDATION IN
REGISTER. Upon its receipt of an Assignment Agreement executed by an
assigning Lender and an assignee representing that it is an Eligible
Assignee, together with the processing and recordation fee referred to in
subsection 10.1B(i) and any forms, certificates or other evidence with
respect to United States federal income tax withholding matters that such
assignee may be required to deliver to Administrative Agent pursuant to
subsections 2.7B(iii)(a), Administrative Agent shall, if Administrative
Agent and Company have consented to the assignment evidenced thereby (in
each case to the
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extent such consent is required pursuant to subsection 10.1B(i)), (a)
accept such Assignment Agreement by executing a counterpart thereof as
provided therein (which acceptance shall evidence any required consent of
Administrative Agent to such assignment), (b) record the information
contained therein in the Register, and (c) give prompt notice thereof to
Company. Administrative Agent shall maintain a copy of each Assignment
Agreement delivered to and accepted by it as provided in this subsection
10.1B(ii).
C. PARTICIPATIONS. The holder of any participation, other
than an Affiliate of the Lender granting such participation, shall not be
entitled to require such Lender to take or omit to take any action hereunder
except action directly affecting (i) the extension of the scheduled final
maturity date of any Loan allocated to such participation or (ii) a reduction of
the principal amount of or the rate of interest payable on any Loan allocated to
such participation or a reduction of the fee payable in respect of any Letter of
Credit allocated to such participation or a reduction of any commitment fee in
respect of any Commitment allocated to such participation, and all amounts
payable by Company hereunder (including amounts payable to such Lender pursuant
to subsections 2.6D, 2.7 and 3.6) shall be determined as if such Lender had not
sold such participation. Company and each Lender hereby acknowledge and agree
that, solely for purposes of subsections 10.4 and 10.5, (a) any participation
will give rise to a direct obligation of Company to the participant and (b) the
participant shall be considered to be a "Lender".
D. ASSIGNMENTS TO FEDERAL RESERVE BANKS AND FUND TRUSTEES.
In addition to the assignments and participations permitted under the foregoing
provisions of this subsection 10.1, any Lender may assign and pledge all or any
portion of its Loans, the other Obligations owed to such Lender, and its Notes
to any Federal Reserve Bank as collateral security pursuant to Regulation A of
the Board of Governors of the Federal Reserve System and any operating circular
issued by such Federal Reserve Bank and any Lender which is an investment fund
may pledge or assign all or any portion of its Notes, Loans or other Obligations
owed to such Lender to its trustee in support of its obligations to its trustee;
PROVIDED that (i) no Lender shall, as between Company and such Lender, be
relieved of any of its obligations hereunder as a result of any such assignment
and pledge and (ii) in no event shall such Federal Reserve Bank be considered to
be a "Lender" or be entitled to require the assigning Lender to take or omit to
take any action hereunder.
E. INFORMATION. Each Lender may furnish any information
concerning Company and its Subsidiaries in the possession of that Lender from
time to time to assignees and participants (including prospective assignees and
participants), subject to subsection 10.18.
F. REPRESENTATIONS OF LENDERS. Each Lender listed on the
signature pages hereof hereby represents and warrants (i) that it is an Eligible
Assignee described in clause (A) of the definition thereof; (ii) that it has
experience and expertise in the making of loans such as the Loans; and (iii)
that it will make and/or purchase its Loans for its own account in the ordinary
course of its business and without a view to distribution of such Loans within
the meaning of the Securities Act or the Exchange Act or other federal
securities laws (it being understood that, subject to the provisions of this
subsection 10.1, the
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disposition of such Loans or any interests therein shall at all times remain
within its exclusive control). Each Lender that becomes a party hereto pursuant
to an Assignment Agreement shall be deemed to agree that the representations and
warranties of such Lender contained in paragraph 1.2 of such Assignment
Agreement are incorporated herein by this reference.
10.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, Company agrees to pay promptly (i) all the actual and reasonable
costs and expenses of preparation of the Loan Documents and any consents,
amendments, waivers or other modifications thereto; (ii) all the costs of
furnishing all opinions by counsel for Company (including any opinions requested
by Lenders as to any legal matters arising hereunder) and of Company's
performance of and compliance with all agreements and conditions on its part to
be performed or complied with under this Agreement and the other Loan Documents
including with respect to confirming compliance with environmental, insurance
and solvency requirements; (iii) the reasonable fees, expenses and disbursements
of counsel to Administrative Agent (including allocated costs of internal
counsel) in connection with the negotiation, preparation, execution and
administration of the Loan Documents and any consents, amendments, waivers or
other modifications thereto and any other documents or matters requested by
Company; (iv) all the actual costs and reasonable expenses of creating and
perfecting Liens in favor of Collateral Agent on behalf of Lenders pursuant to
any Collateral Document, including filing fees, expenses and taxes, stamp or
documentary taxes, search fees and reasonable fees, expenses and disbursements
of counsel to Collateral Agent; (v) all the actual costs and reasonable expenses
(including the reasonable fees, expenses and disbursements of any environmental
consultants retained by Administrative Agent or its counsel) of obtaining and
reviewing any environmental audits or reports provided for on or before the
Closing Date; (vi) all the actual costs and reasonable expenses of the custody
or preservation of any of the Collateral; (vii) all other actual and reasonable
costs and expenses incurred by Syndication Agent and Administrative Agent in
connection with the syndication of the Commitments and the negotiation,
preparation and execution of the Loan Documents and any consents, amendments,
waivers or other modifications thereto and the transactions contemplated
thereby; and (viii) after the occurrence of an Event of Default, all costs and
expenses, including reasonable attorneys' fees and costs of settlement, incurred
by Administrative Agent, Collateral Agent and each Lender in enforcing any
Obligations of or in collecting any payments due from any Loan Party hereunder
or under the other Loan Documents by reason of such Event of Default (including
in connection with the sale of, collection from, or other realization upon any
of the Collateral or the enforcement of the Guaranties) or in connection with
any refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a "work-out" or pursuant to any insolvency or
bankruptcy proceedings.
10.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection
10.2, whether or not the transactions contemplated hereby shall be consummated,
Company agrees to defend (subject to Indemnitees' selection of counsel),
indemnify, pay and hold harmless each Agent, each Joint Lead Arranger, and each
Lender (including Issuing Lender), and the officers,
111
directors, employees, trustees, advisors, partners, agents and affiliates of
each Agent, each Joint Lead Arranger, and each Lender (collectively called the
"INDEMNITEES"), from and against any and all Indemnified Liabilities (as
hereinafter defined); PROVIDED that Company shall not have any obligation to any
Indemnitee hereunder with respect to any Indemnified Liabilities to the extent
such Indemnified Liabilities arise solely from the gross negligence or willful
misconduct of that Indemnitee as determined by a final judgment of a court of
competent jurisdiction.
As used herein, "INDEMNIFIED LIABILITIES" means, collectively,
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, expenses and disbursements of any kind or
nature whatsoever (including the reasonable fees and disbursements of counsel
for Indemnitees in connection with any investigative, administrative or judicial
proceeding commenced or threatened by any Person, whether or not any such
Indemnitee shall be designated as a party or a potential party thereto, and any
fees or expenses incurred by Indemnitees in enforcing this indemnity), whether
direct, indirect or consequential and whether based on any federal, state or
foreign laws, statutes, rules or regulations (including securities and
commercial laws, statutes, rules or regulations and Environmental Laws), on
common law or equitable cause or on contract or otherwise, that may be imposed
on, incurred by, or asserted against any such Indemnitee, in any manner relating
to or arising out of (i) this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby (including Lenders' agreement to
make the Loans hereunder or the use or intended use of the proceeds thereof or
the issuance of Letters of Credit hereunder or the use or intended use of any
thereof, or any enforcement of any of the Loan Documents (including any sale of,
collection from, or other realization upon any of the Collateral or the
enforcement of the Guaranties), (ii) the statements contained in the commitment
letter delivered by any Lender to Company with respect thereto, or (iii) any
Environmental Claim or any Hazardous Materials relating to or arising from,
directly or indirectly, any past or present activity, operation, land ownership,
or practice of Company or any of its Subsidiaries.
To the extent that the undertakings to defend, indemnify, pay and
hold harmless set forth in this subsection 10.3 may be unenforceable in whole or
in part because they are violative of any law or public policy, Company shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.
10.4 SET-OFF.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Lender is hereby authorized by Company
at any time or from time to time, without notice to Company or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or special, including
Indebtedness evidenced by certificates of deposit, whether matured or unmatured,
but not including trust accounts) and any other Indebtedness at any time held or
owing by that Lender to or for the credit or the account of Company against and
on account of any obligations and liabilities of Company then due and payable to
that Lender under this Agreement, the Letters
112
of Credit and participations therein and the other Loan Documents, irrespective
of whether or not that Lender shall have made any demand for payment thereof.
10.5 RATABLE SHARING.
Lenders hereby agree among themselves that if any of them shall,
whether by voluntary payment (other than a voluntary prepayment of Loans made
and applied in accordance with the terms of this Agreement), by realization upon
security, through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the Loan
Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and owing to that
Lender hereunder or under the other Loan Documents (collectively, the "AGGREGATE
AMOUNTS DUE" to such Lender) which is greater than the proportion received by
any other Lender in respect of the Aggregate Amounts Due to such other Lender,
then the Lender receiving such proportionately greater payment shall (i) notify
Administrative Agent and each other Lender of the receipt of such payment and
(ii) apply a portion of such payment to purchase participations (which it shall
be deemed to have purchased from each seller of a participation simultaneously
upon the receipt by such seller of its portion of such payment) in the Aggregate
Amounts Due to the other Lenders so that all such recoveries of Aggregate
Amounts Due shall be shared by all Lenders in proportion to the Aggregate
Amounts Due to them; PROVIDED that if all or part of such proportionately
greater payment received by such purchasing Lender is thereafter recovered from
such Lender upon the bankruptcy or reorganization of Company or otherwise, those
purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such purchasing Lender ratably to the extent
of such recovery, but without interest. Company expressly consents to the
foregoing arrangement and agrees that any holder of a participation so purchased
may exercise any and all rights of banker's lien, set-off or counterclaim with
respect to any and all monies owing by Company to that holder with respect
thereto as fully as if that holder were owed the amount of the participation
held by that holder.
10.6 AMENDMENTS AND WAIVERS.
A. No amendment, modification, termination or waiver of any
provision of the Loan Documents, or consent to any departure by Company
therefrom, shall in any event be effective without the written concurrence of
Requisite Lenders; PROVIDED that no such amendment, modification, termination,
waiver or consent shall, without the consent of each Lender (with Obligations
directly affected in the case of the following clause (i)): (i) extend the
scheduled final maturity of any Loan or Note, or extend the stated expiration
date of any Letter of Credit beyond the Revolving Loan Commitment Termination
Date, or reduce the rate of interest on any Loan (other than any waiver of any
increase in the interest rate applicable to any Loan pursuant to subsection
2.2E) or any commitment fees or letter of credit fees payable hereunder, or
extend the time for payment of any such interest or fees, or reduce or forgive
the principal amount of any Loan or any reimbursement obligation in respect of
any Letter of Credit, (ii) amend, modify, terminate or waive any provision of
this subsection 10.6, (iii) reduce the percentage specified in the definition of
"Requisite Lenders"
113
(it being understood that additional extensions of credit approved by Requisite
Lenders pursuant to this Agreement may be included in the determination of
"Requisite Lenders" without any further approval by Lenders being required),
(iv) consent to the assignment or transfer by Company of any of its rights and
obligations under this Agreement, or (v) release all or substantially all of the
Collateral or all or substantially all of the Subsidiary Guarantors from the
Subsidiary Guaranty except as expressly provided in the Loan Documents;
PROVIDED, FURTHER that no such amendment, modification, termination or waiver
shall (1) increase the Commitments of any Lender over the amount thereof then in
effect without the consent of such Lender (it being understood that no
amendment, modification or waiver of any condition precedent, covenant,
Potential Event of Default or Event of Default shall constitute an increase in
the Commitment of any Lender, and that no increase in the available portion of
any Commitment of any Lender shall constitute an increase in such Commitment of
such Lender); (2) amend, modify, terminate or waive any provision of subsection
2.1A(iv) or any other provision of this Agreement relating to the Swing Line
Loan Commitment or the Swing Line Loans without the consent of Swing Line
Lender; (3) reduce the percentage specified in the definition of "Requisite
Class Lenders" without the consent of Requisite Class Lenders of each Class (it
being understood that additional extensions of credit approved by Requisite
Lenders pursuant to this Agreement may be included in the determination of
"Requisite Class Lenders" without any further approval by Lenders being
required), or alter the required application of any repayments or prepayments as
between Classes pursuant to subsection 2.4B(iv) without the consent of Requisite
Class Lenders of each Class which is being allocated a lesser repayment or
prepayment as a result thereof (although Requisite Lenders may waive, in whole
or in part, any mandatory prepayment so long as the application, as between
Classes, of any portion of such prepayment which is still required to be made is
not altered); (4) without the consent of Requisite Class Lenders of the
respective Class, waive, reduce or postpone any scheduled repayment set forth in
subsection 2.4A with respect to the applicable Term Loans of such affected
Class; (5) amend, modify, terminate or waive any obligation of Revolving Lenders
relating to the purchase of participations in Letters of Credit as provided in
subsection 3.1C without the written concurrence of Administrative Agent and of
each Issuing Lender which has a Letter of Credit then outstanding or which has
not been reimbursed for a drawing under a Letter of Credit issued it; or (6)
amend, modify, terminate or waive any provision of Section 9 as the same applies
to Administrative Agent, or any other provision of this Agreement as the same
applies to the rights or obligations of Administrative Agent, in each case
without the consent of Administrative Agent.
B. Administrative Agent may, but shall have no obligation
to, with the concurrence of any Lender, execute amendments, modifications,
waivers or consents on behalf of that Lender. Any waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it was given. No notice to or demand on Company in any case shall entitle
Company to any other or further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this subsection 10.6 shall be binding upon each
Lender at the time outstanding, each future Lender and, if signed by Company, on
Company.
114
10.7 NOTICES.
Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and may be personally served, telexed or sent by telefacsimile or United States
mail or courier service and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of telefacsimile or telex, or three
Business Days after depositing it in the United States mail with postage prepaid
and properly addressed; PROVIDED that notices to any Agent shall not be
effective until received. For the purposes hereof, the address of each party
hereto shall be as set forth under such party's name on the signature pages
hereof or (i) as to Company and each Agent, such other address as shall be
designated by such Person in a written notice delivered to the other parties
hereto and (ii) as to each other party, such other address as shall be
designated by such party in a written notice delivered to Administrative Agent.
10.8 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
A. All representations, warranties and agreements made
herein shall survive the execution and delivery of this Agreement and the making
of the Loans and the issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by
law to the contrary, the agreements of Company set forth in subsections 2.6D,
2.7, 3.5A, 3.6, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth in
subsections 9.2C, 9.4 and 10.5 shall survive the payment of the Loans, the
cancellation or expiration of the Letters of Credit and the reimbursement of any
amounts drawn thereunder, and the termination of this Agreement.
10.9 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of any Agent or any Lender in the
exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
10.10 MARSHALLING; PAYMENTS SET ASIDE.
Neither Administrative Agent, nor Collateral Agent nor any
Lender shall be under any obligation to marshal any assets in favor of Company
or any other party or against or in payment of any or all of the Obligations. To
the extent that Company makes a payment or payments to either Agent or Lenders
(or to either Agent for the benefit of Lenders), or either Agent or Lenders
enforce any security interests or exercise their rights of setoff, and such
payment or payments or the proceeds of such enforcement or setoff or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, any other state or federal law, common law or any
equitable cause, then, to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied, and all Liens, rights
115
and remedies therefor or related thereto, shall be revived and continued in full
force and effect as if such payment or payments had not been made or such
enforcement or setoff had not occurred.
10.11 SEVERABILITY.
In case any provision in or obligation under this Agreement or
the Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
10.12 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS.
The obligations of Lenders hereunder are several and no Lender
shall be responsible for the obligations or Commitments of any other Lender
hereunder. Nothing contained herein or in any other Loan Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute
Lenders as a partnership, an association, a joint venture or any other kind of
entity. The amounts payable at any time hereunder to each Lender shall be a
separate and independent debt, and each Lender shall be entitled to protect and
enforce its rights arising out of this Agreement and it shall not be necessary
for any other Lender to be joined as an additional party in any proceeding for
such purpose.
10.13 HEADINGS.
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
10.14 APPLICABLE LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
10.15 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders (it being understood that
Lenders' rights of assignment are subject to subsection 10.1). None of Company's
rights or obligations hereunder or under the other Loan Documents nor any
interest therein may be assigned or delegated by Company without the prior
written consent of all Lenders.
116
10.16 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS
THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇. BY EXECUTING AND
DELIVERING THIS AGREEMENT, COMPANY, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING
IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, TO COMPANY AT ITS ADDRESS
PROVIDED IN ACCORDANCE WITH SUBSECTION 10.7;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER COMPANY IN ANY
SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST
COMPANY IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.16
RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND
ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK
GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
10.17 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY WAIVES ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS
AMONG THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver
is intended to be all-encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of this transaction, including
contract
117
claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this waiver is a material
inducement to enter into a business relationship, that each has already relied
on this waiver in entering into this Agreement, and that each will continue to
rely on this waiver in their related future dealings. Each party hereto further
warrants and represents that it has reviewed this waiver with its legal counsel
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 10.17 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
10.18 CONFIDENTIALITY.
Each Lender shall hold all non-public information obtained
pursuant to the requirements of this Agreement which has been identified as
confidential by Company in accordance with such Lender's customary procedures
for handling confidential information of this nature and in accordance with safe
and sound banking practices, it being understood and agreed by Company that in
any event a Lender may make disclosures to Affiliates, Related Funds and
investment advisors or managers of such Lender or disclosures reasonably
required by any bona fide assignee, transferee or participant in connection with
the contemplated assignment or transfer by such Lender of any Loans or any
participations therein or disclosures required or requested by any governmental
agency or representative thereof, or the National Association of Insurance
Commissioners (the "NAIC") or any other Person with the prior written consent of
Company and Administrative Agent in the exercise of their respective sole
discretion or pursuant to legal process; PROVIDED that, unless specifically
prohibited by applicable law or court order, each Lender shall use its best
efforts to notify Company of any request by any governmental agency or
representative thereof or the NAIC (other than any such request in connection
with any examination of the financial condition of such Lender by such
governmental agency or the NAIC) for disclosure of any such non-public
information prior to disclosure of such information; and PROVIDED, FURTHER that
in no event shall any Lender be obligated or required to return any materials
furnished by Company or any of its Subsidiaries. Notwithstanding anything
contained herein to the contrary, each party hereto authorizes the other to
disclose all information and materials regarding the tax structure and tax
aspects of the transactions contemplated by the Loan Documents to the extent
required by Internal Revenue Code Section 6011 and the Treasury Regulations
thereunder in order to avoid the transaction contemplated therein being treated
as a "Confidential Transaction" as defined by such Treasury Regulations.
10.19 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in any number of
counterparts and by
118
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
[Remainder of page intentionally left blank]
119
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY: AMPHENOL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
Notice Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
S-1
LENDERS: DEUTSCHE BANK TRUST COMPANY AMERICAS,
individually and as Administrative Agent
and Collateral Agent
By: /s/ ▇▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇ ▇▇▇▇▇
Title: Assistant Vice President
Notice Address:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
DEUTSCHE BANK AG, NEW YORK BRANCH,
as an Issuing Lender
By: /s/ ▇▇▇▇ ▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇ ▇▇▇▇▇
Title: ▇▇▇▇ ▇▇ ▇▇▇▇▇
Notice Address:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
UBS WARBURG LLC,
individually and as Syndication Agent
By: /s/ ▇▇▇▇▇ ▇. Judge
------------------------------------
Name: ▇▇▇▇▇ ▇. Judge
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
UBS AG, CAYMAN ISLANDS BRANCH,
as Lender
By: /s/ ▇▇▇▇▇ ▇. Judge
------------------------------------
Name: ▇▇▇▇▇ ▇. Judge
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
FLEET NATIONAL BANK,
individually and as Co-Documentation
Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ROYAL BANK OF CANADA,
Individually and as Co-Documentation
Agent
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-Allegra
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-Allegra
Title: Senior Manager
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
THE NORINCHUKIN BANK
By: /s/ Toshiyuki Futaoka
------------------------------------
Name: Toshiyuki Futaoka
Title: Joint General Manager
Notice Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
UFJ BANK LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇. Small
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Small
Title: Senior Vice President
Notice Address:
UFJ Bank Limited
Attention: Loan Administration
Department
▇▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
PS CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ BANK
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
Notice Address:
▇▇▇▇▇▇▇ Bank
▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
NATIONAL CITY BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Account Officer
Notice Address:
National City Bank
Attn: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
NORDEA BANK FINLAND PLC, NEW YORK BRANCH
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Notice Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 21st fl.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
BANK OF AMERICA, N.A.
By: /s/ S. ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: S. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
Notice Address:
Bank of America, N.A.
NCI-007-13-06
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ CHASE BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
Notice Address:
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
CHEVY CHASE BANK, FSB
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Notice address:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FIRSTRUST BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Notice Address:
Firstrust Bank
▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RZB FINANCE LLC, CONNECTICUT OFFICE
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Group Vice President
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Notice Address:
RZB Finance LLC, Connecticut ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇