==============================================================================
--------------------------------------------------------------
--------------------------------------------------------------
ANNTAYLOR, INC.
________________________________________________
$175,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
April 30, 2001
__________________________________________________
JPMORGAN a division of Chase Securities, Inc.,
FIRST UNION NATIONAL BANK,
as Syndication Agents
FLEET NATIONAL BANK,
as Documentation Agent
THE CIT GROUP/BUSINESS CREDIT, INC.,
FIRSTAR BANK, N.A.,
TRANSAMERICA BUSINESS CAPITAL CORPORATION,
as Co-Agents
BANK OF AMERICA, N.A.,
THE CHASE MANHATTAN BANK,
FIRST UNION NATIONAL BANK,
as Issuing Banks
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
BANK OF AMERICA, N.A., formerly known as
Bank of America National Trust and Savings Association,
as Administrative Agent
--------------------------------------------------------------
--------------------------------------------------------------
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I
---------
AMENDMENT AND RESTATEMENT AND DEFINITIONS
-----------------------------------------
1.01. Amendment and Restatement...........................................1
1.02. Certain Defined Terms...............................................2
1.03. Computation of Time Periods........................................27
1.04. Accounting Terms...................................................27
1.05. Other Definitional Provisions......................................27
ARTICLE II
----------
AMOUNTS AND TERMS OF LOANS
--------------------------
2.01. The Revolving Credit Facility......................................29
2.02. Interest on the Loans..............................................31
2.03. Fees...............................................................34
2.04. Voluntary and Mandatory Prepayments................................35
2.05. Payments...........................................................36
2.06. Interest Periods...................................................38
2.07. Special Provisions Governing Eurodollar Rate Loans.................39
2.08. Taxes..............................................................41
2.09. Increased Capital..................................................44
2.10. Use of Proceeds of the Loans.......................................44
2.11. Replacement of Lender in Event of Adverse Condition................45
2.12. Authorized Officers of the Borrower................................45
ARTICLE III
-----------
LETTERS OF CREDIT
-----------------
3.01. Obligation to Issue................................................46
3.02. Types and Amounts..................................................46
3.03. Conditions.........................................................47
3.04. Issuance of Letters of Credit......................................47
3.05. Reimbursement Obligations; Duties of the Issuing Banks.............49
3.06. Participations.....................................................50
3.07. Payment of Reimbursement Obligations...............................52
3.08. Compensation for Letters of Credit.................................52
3.09. Indemnification; Exoneration.......................................54
3.10 Applicability of ISP98 and UCP.....................................54
i
================================================================================
ARTICLE IV
----------
CONDITIONS TO LOANS AND LETTERS OF CREDIT
-----------------------------------------
4.01. Conditions Precedent to the Effective Date.........................56
4.02. Conditions Precedent to all Loans and Letters of Credit............58
ARTICLE V
---------
REPRESENTATIONS AND WARRANTIES
------------------------------
5.01. Representations and Warranties on the Effective Date...............60
5.02. Subsequent Funding Representations and Warranties..................64
ARTICLE VI
----------
REPORTING COVENANTS
-------------------
6.01. Financial Statements...............................................65
ARTICLE VII
-----------
AFFIRMATIVE COVENANTS
---------------------
7.01. Corporate Existence, Etc...........................................69
7.02. Corporate Powers, Etc..............................................69
7.03. Compliance with Laws...............................................69
7.04. Payment of Taxes and Claims........................................69
7.05. Maintenance of Properties; Insurance...............................69
7.06. Inspection of Property; Books and Records; Discussions.............70
7.07. Labor Matters......................................................70
7.08. Maintenance of Permits.............................................70
7.09. ERISA..............................................................70
7.10. Pledge of After-Acquired Property; Additional Guarantors...........70
7.11. Further Assurances.................................................72
ARTICLE VIII
------------
NEGATIVE COVENANTS
------------------
8.01. Indebtedness.......................................................73
8.02. Sales of Assets; Liens.............................................74
8.03. Investments........................................................75
8.04. Accommodation Obligations..........................................76
8.05. Restricted Payments................................................77
8.06. Conduct of Business................................................78
8.07. Transactions with Affiliates.......................................78
8.08. Restriction on Fundamental Changes.................................78
ii
================================================================================
8.09. ERISA..............................................................79
8.10. Sales and Leasebacks...............................................79
8.11. Convertible Debentures and other Indebtedness......................79
8.12. Margin Regulations.................................................80
8.13. Change of Fiscal Year..............................................80
8.14. Subsidiaries.......................................................80
8.15. Consignment of Title Documents.....................................80
ARTICLE IX
----------
FINANCIAL COVENANTS
-------------------
9.01. Minimum Tangible Net Worth.........................................81
9.02. Leverage Ratio.....................................................81
9.03. Minimum Fixed Charge Coverage Ratio................................81
ARTICLE X
---------
EVENTS OF DEFAULT, RIGHT AND REMEDIES
-------------------------------------
10.01. Events of Default..................................................82
10.02. Rights and Remedies................................................84
ARTICLE XI
----------
THE ADMINISTRATIVE AGENT
------------------------
11.01. Appointment and Authorization......................................86
11.02. Delegation of Duties...............................................86
11.03. Liability of Administrative Agent..................................86
11.04. Reliance by Administrative Agent...................................87
11.05. Notice of Default..................................................87
11.06. Credit Decision....................................................88
11.07. Indemnification....................................................88
11.08. Administrative Agent in Individual.................................89
11.09. Successor Administrative Agent.....................................89
11.10. The Arranger.......................................................90
11.11. Syndication Agents, Co-Agents and Documentation Agent..............90
11.12. Collateral Matters.................................................90
11.13. Relations Among Lenders............................................91
ARTICLE XII
-----------
MISCELLANEOUS
-------------
12.01. Assignments and Participations.....................................92
12.02. Assignments to Federal Reserve Banks...............................94
12.03. Expenses...........................................................94
iii
================================================================================
12.04. Indemnity..........................................................95
12.05. Change in Accounting Principles....................................96
12.06. Setoff.............................................................96
12.07. Ratable Sharing....................................................97
12.08. Amendments and Waivers.............................................97
12.09. Independence of Covenants..........................................98
12.10. Notices............................................................98
12.11. Survival of Warranties and Agreements..............................99
12.12. Failure or Indulgence Not Waiver; Remedies Cumulative..............99
12.13. Marshalling; Recourse to Security; Payments Set Aside..............99
12.14. Severability......................................................100
12.15. Headings..........................................................100
12.16. Governing Law.....................................................100
12.17. Confidentiality...................................................100
12.18. Consent to Jurisdiction and Service of Process; Waiver of Jury Trial101
12.19. Counterparts; Effectiveness; Inconsistencies......................102
iv
================================================================================
EXHIBITS
Exhibit 2.01(b)... Form of Notice of Borrowing
Exhibit 2.01(d)... Form of Note
Exhibit 2.02...... Form of Notice of Conversion/Continuation
Exhibit 4.01(a)(ii) Form of Borrower Pledge Agreement
Exhibit 4.01(a)(iii) Form of Trademark Security Agreement
Exhibit 4.01(a)(iv) Form of ATSC Guaranty
Exhibit 4.01(a)(v) Form of ATSC Pledge Agreement
Exhibit 4.01(a)(vi) Form of Subsidiary Guaranty and Collateral
Agreement
Exhibit 4.01(a)(xi) Form of Opinion of Skadden, Arps, Slate,
Meagher & Flom LLP
Exhibit 6.01(d)(i) Form of Compliance Certificate
Exhibit 6.01(d)(ii) Form of Pricing Ratio Certificate
Exhibit 6.01(o)... Form of Borrowing Base Certificate
Exhibit 12.01..... Form of Assignment and Acceptance
SCHEDULES
Schedule 1.01(a).. Lending Offices
Schedule 1.01(b).. Commitments
Schedule 3.01(b).. Existing Letters of Credit
Schedule 3.01(c).. Citibank Letters of Credit
Schedule 4.01..... UCC Filing Jurisdictions
Schedule 5.01(p).. Restricted Subsidiaries
Schedule 8.01(k).. Permitted Existing Indebtedness
Schedule 8.02(b).. Permitted Existing Liens
iv
================================================================================
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 30, 2001 (as
amended, supplemented or modified from time to time, this "Agreement"), among
ANNTAYLOR, INC., a Delaware corporation (the "Borrower"), each Person
signatory hereto as a Lender or which from time to time becomes a Lender
party hereto in accordance with Section 12.01(a) (together with its
respective successors and assigns, individually, a "Lender" and,
collectively, the "Lenders"), BANC OF AMERICA SECURITIES LLC, as Arranger (in
such capacity, the "Arranger"), BANK OF AMERICA, N.A., formerly known as Bank
of America National Trust and Savings Association, in its separate capacity
as administrative agent for the Lenders hereunder (in such capacity, the
"Administrative Agent"), JPMORGAN a division of Chase Securities, Inc. and
FIRST UNION NATIONAL BANK, in their respective capacities as syndication
agents (collectively, in such capacities, the "Syndication Agents"), FLEET
NATIONAL BANK, as documentation agent (in such capacity, the "Documentation
Agent"), THE CIT GROUP/BUSINESS CREDIT, INC., FIRSTAR BANK, N.A. and
TRANSAMERICA BUSINESS CAPITAL CORPORATION, as co-agents (collectively, in
such capacities, the "Co-Agents") and BANK OF AMERICA, N.A., THE CHASE
MANHATTAN BANK, and FIRST UNION NATIONAL BANK, as Issuing Banks.
W I T N E S S E T H:
--------------------
WHEREAS, the Borrower, the lenders referred to therein, the syndication
-------
agents named therein, the issuing banks named therein and the administrative
agent named therein have entered into that certain $150,000,000 Credit
Agreement dated June 30, 1998 (as amended, the "Original Credit Agreement");
and
WHEREAS, the parties hereto desire to amend the Original Credit
-------
Agreement as set forth herein, including providing for Fleet National Bank to
act as documentation agent for the Lenders and The CIT Group/Business Credit,
Inc., Firstar Bank, N.A. and Transamerica Business Capital Corporation to act
as co-agents for the Lenders, and to restate the Original Credit Agreement as
so amended in its entirety;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree that, on and as of the
Effective Date, the Original Credit Agreement is hereby amended and restated
in its entirety as follows:
ARTICLE I
Amendment and Restatement and Definitions
-----------------------------------------
1.01. Amendment and Restatement. The Borrower, the Agents, the Issuing
--------------------------
Banks, the Arranger and the Lenders hereby agree that upon the effectiveness
of this Agreement, the terms and provisions of the Original Credit Agreement
which in any manner govern or evidence the Obligations, the rights and
interests of the Lenders and any terms, conditions or matters related to any
thereof, shall be and hereby are amended and restated in their entirety by
the terms and provisions of this Agreement and the terms and conditions of
the Original Credit Agreement shall be superseded by this Agreement, except
as expressly provided herein.
================================================================================
Notwithstanding the amendment and restatement of Original Credit
Agreement and certain of the related "Loan Documents" as defined in the
Original Credit Agreement (the "Prior Loan Documents") by this Agreement and
the other Loan Documents as herein defined, all of the indebtedness,
liabilities and obligations owing by the Borrower under the Original Credit
Agreement (other than Reimbursement Obligations (as defined in the Original
Credit Agreement) with respect to Citibank Letters of Credit) shall continue
as Obligations hereunder and shall be and remain secured by the Collateral
Documents for the benefit of the Agents and the Lenders. This Agreement is
given as a substitution of, and not as a payment of, the indebtedness,
liabilities and obligations of the Borrower under the Original Credit
Agreement and is not intended to constitute a novation thereof or of any of
the other Prior Loan Documents. Upon the effectiveness of this Agreement,
all Loans owing by the Borrower and Letters of Credit outstanding under the
Original Credit Agreement (other than the Citibank Letters of Credit) shall
continue as Loans and Letters of Credit hereunder, in each case accruing
interest, as of the date hereof, at the Base Rate hereunder.
The Borrower, the Agents, the Issuing Banks, the Arranger and the
Lenders hereby acknowledge the assignment to Bank of America of all Loans and
Commitments by the other lenders party to the Original Credit Agreement
substantially simultaneously with the effectiveness of this Agreement. The
Borrower, the Agents, the Issuing Banks, the Arranger and the Lenders hereby
agree that the assignment by Bank of America to the Lenders party hereto of
Loans and Commitments in the amounts and allocations as reflected on Schedule
--------
1.01(b) hereto substantially simultaneously with the effectiveness of this
- -------
Agreement shall be deemed to have been consummated in accordance with Section
-------
12.01 of the Original Credit Agreement and the terms, conditions,
- -----
representations and warranties set forth in the form of Assignment and
Acceptance set forth as Exhibit 12.01 of the Original Credit Agreement shall
-------------
be deemed to have been made and agreed to as between Bank of America and each
such Lender as if an Assignment and Acceptance had been fully executed and
delivered by such parties.
1.02. Certain Defined Terms.
---------------------
The following terms used in this Agreement shall have the following
meanings (such meanings to be applicable, except to the extent otherwise
indicated in a definition of a particular term, both to the singular and the
plural forms of the terms defined):
"Accommodation Obligation", as applied to any Person, shall mean any
contractual obligation, contingent or otherwise, of that Person with respect
to any Indebtedness or other obligation or liability of another, including
any such Indebtedness, obligation or liability directly or indirectly
guaranteed, endorsed (otherwise than for collection or deposit in the
ordinary course of business), co-made or discounted or sold with recourse by
that Person, or in respect of which that Person is otherwise directly or
indirectly liable, including Contractual Obligations (contingent or
otherwise) arising through any agreement to purchase, repurchase, or
otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether
in the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other
financial condition, or to make payment other than for value received.
2
================================================================================
"Accounts" shall mean, as to any Person, any "account", as such term
is defined in Section 9-106 of the UCC, now or hereafter owned by such Person
which is classified as a receivable on a consolidated balance sheet of such
Person in accordance with GAAP.
"Account Debtor" shall mean any Person that is liable to make payments
with respect to a Credit Card Account.
"Administrative Agent" shall have the meaning ascribed to such term in
the preamble and shall include any successor Administrative Agent appointed
pursuant to Section 11.09.
-------------
"Administrative Agent's Payment Office" shall mean the address for
payments set forth on the signature page hereto relating to the
Administrative Agent or such other address as the Administrative Agent may
from time to time specify in accordance with Section 12.10.
-------------
"Advance Rate" shall mean with respect to Eligible Accounts Receivable,
75%, with respect to Eligible Inventory, 65%, and with respect to Eligible
Fixed Assets, 10%. The Administrative Agent may, in its reasonable
discretion, but subject to Section 12.08(a)(vi), adjust the Advance Rate with
--------------------
respect to Eligible Accounts Receivable based upon an increase or decrease in
the dilution of the Credit Card Accounts reflected in the most recent
collateral audit performed pursuant to Section 7.06.
------------
"Affiliate", as applied to any Person, shall mean any other Person
directly or indirectly controlling, controlled by, or under common control
with, that Person. For 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 vote 10% or more of the Securities
having voting power for the election of directors of such Person or otherwise
to direct or cause the direction of the management and policies of that
Person, whether through the ownership of voting Securities or by contract or
otherwise; provided that no financial institution, mutual fund or investment
banking firm shall be an Affiliate of the Borrower unless it owns, directly
or indirectly, at least 20% of such Securities of the Borrower.
"Agent-Related Person" shall mean the Administrative Agent (including
any successor administrative agent), together with its Affiliates (including,
in the case of Bank of America in its capacity as the Administrative Agent,
the Arranger), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"Agents" shall mean, collectively, the Administrative Agent, the
Documentation Agent, the Syndication Agents and the Co-Agents.
"Agreement" shall have the meaning ascribed to such term in the
preamble hereto.
"Applicable Approved Issuance Amount" shall mean, as to each Issuing
Bank (other than Bank of America), the amount notified from time to time by
the Administrative Agent at the direction of the Borrower to such Issuing
Banks. The aggregate Applicable Approved Issuance Amounts for such Issuing
3
================================================================================
Banks shall not at any time exceed the lesser of (i) the Commitments then in
effect less the aggregate principal amount of all outstanding Loans and (ii)
the Borrowing Base Amount then in effect less the aggregate principal amount
of all outstanding Loans.
"Applicable Lending Office" shall mean, with respect to each Lender,
such Lender's Domestic Lending Office, in the case of a Base Rate Loan, and
such Lender's Eurodollar Lending Office, in the case of a Eurodollar Rate
Loan.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" shall mean Banc of America Securities LLC, in its capacity
as sole lead arranger and sole book manager.
"Assignment and Acceptance" shall mean an Assignment and Acceptance in
the form of Exhibit 12.01 (with blanks appropriately filled in) delivered to
-------------
the Administrative Agent and the Borrower in connection with an assignment of
a Lender's interest under this Agreement pursuant to Section 12.01.
-------------
"ATSC" shall mean AnnTaylor Stores Corporation, a Delaware corporation.
"ATSC Guaranty" shall mean the Amended and Restated Guaranty dated as
of the Effective Date substantially in the form of, and on the terms set
forth in, Exhibit 4.01(a)(iv), as the same may be amended, modified or
--------------------
otherwise supplemented from time to time.
"ATSC Pledge Agreement" shall mean the Amended and Restated Security
and Pledge Agreement dated as of the Effective Date substantially in the form
of, and on the terms set forth in, Exhibit 4.01(a)(v), as the same may be
-------------------
amended, supplemented or otherwise modified from time to time.
"Available In-Transit Amount" shall mean, as of any Calculation Date,
an amount equal to 55% of the sum of (i) the aggregate undrawn face amount of
Commercial Letters of Credit issued to finance the purchase of Inventory
(other than Inventory included in the determination of Eligible Inventory),
and (ii) the aggregate Inventory Value of Inventory financed with Commercial
Letters of Credit which have been fully drawn and the Reimbursement
Obligations in respect of which have been fully paid so long as, in the case
of clause (i) and (ii), (A) such Inventory shall be in transit to properties
owned or leased by the Borrower or the Subsidiary Guarantors in the United
States or such other locations as to which UCC-1 financing statements in
favor of the Administrative Agent for the benefit of the Lenders, have been
filed, and (B) such Inventory is not included in the calculation of Eligible
Inventory and, upon arrival in the United States, will be included in the
determination of the Eligible Inventory.
"'Baa3/BBB-' Rating Status" shall mean that the following requirements
are satisfied:
4
================================================================================
(i) the Fixed Charge Coverage Ratio, calculated on a four fiscal quarter
basis, as of the end of the two preceding fiscal quarters
shall have been not less than 2.25 to 1.00, and
(ii) the Borrower's senior implied non-credit-enhanced long-term debt shall
have a rating of Baa3 or better as determined by Moody's
or BBB- or better as determined by S&P.
"Bank of America" shall mean Bank of America, N.A., formerly known as
Bank of America National Trust and Savings Association.
"Bankruptcy Code" shall mean Title 11 of the United States Code (11
U.S.C. Section 101 et seq.), as amended from time to time, or any successor
statute.
"Base Rate" shall mean, for any day a fluctuating rate per annum equal
to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the Prime
Rate for such day. Any change in the Base Rate due to a change in the Prime
Rate or the Federal Funds Rate shall be effective at the opening of business
on the day specified in the public announcement of such change.
"Base Rate Loans" shall mean all Loans outstanding which bear interest
at a rate determined by reference to the Base Rate as provided in Section
-------
2.02.
- ----
"Benefit Plan" shall mean a defined benefit plan as defined in Section
3(35) of ERISA (other than a Multiemployer Plan) which the Borrower or an
ERISA Affiliate maintains, administers, contributes to or is required to
contribute to, or under which the Borrower or any ERISA Affiliate may incur
any liability.
"Borrower" shall have the meaning ascribed to such term in the preamble
hereto.
"Borrower Pledge Agreement" shall mean the Amended and Restated
Security and Pledge Agreement dated as of the Effective Date substantially in
the form of, and on the terms set forth in, Exhibit 4.01(a)(iii), as the same
--------------------
may be amended, supplemented or otherwise modified from time to time.
"Borrowing" shall mean, except as otherwise provided in Section
-------
2.07(c)(ii), a borrowing consisting of Loans of the same type, having the
- -----------
same Interest Period and made on the same day by the Lenders.
"Borrowing Base Amount" shall mean, as of any Calculation Date, the sum
of (a) the product of (i) the Eligible Accounts Receivable Amount at such
Calculation Date times (ii) the Advance Rate for Eligible Accounts
Receivable, (b) the product of (i) the Eligible Inventory Amount at such
Calculation Date times (ii) the Advance Rate for Eligible Inventory, (c) the
Available In-Transit Amount at such Calculation Date and (d) the Eligible
Fixed Asset Amount at such Calculation Date. The Borrowing Base Amount as
determined on any Calculation Date shall remain in effect until the next
succeeding Calculation Date. Notwithstanding the foregoing, during any
period for which the 'Baa3/BBB-' Rating Status exists, the Borrowing Base
Amount shall equal the Commitments.
5
================================================================================
"Borrowing Base Certificate" shall mean a certificate, substantially in
the form of Exhibit 6.01(o) delivered to the Administrative Agent by the
----------------
Borrower pursuant to Section 6.01(o).
---------------
"Business Day" shall mean (a) for all purposes other than as covered by
clause (b) below, any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of the State of New York or the State of North
Carolina, or is a day on which banking institutions located in either of
those states are required or authorized by law or other governmental action
to close and (b) with respect to all notices, determinations, fundings and
payments in connection with the Eurodollar Rate, any day which is a Business
Day described in clause (a) and which is also a day for trading by and
between banks in the London interbank market.
"Calculation Date" shall mean, at any time, the last day of any period
covered by the most recent Borrowing Base Certificate.
"Capital Expenditures" shall mean, for any period, on a consolidated
basis for the Borrower and its Restricted Subsidiaries, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities during that
period and including that portion of Capital Leases (except any capitalized
interest) which is capitalized on the consolidated balance sheet of the
Borrower and its Restricted Subsidiaries) made by the Borrower or any
Restricted Subsidiary during such period that, in conformity with GAAP, are
required to be included in or reflected by property, plant or equipment
(including expenditures for equipment purchased simultaneously with the
trade-in of existing equipment owned by the Borrower or any such Restricted
Subsidiary to the extent the gross amount of such purchase price exceeds the
book value of the equipment being traded in, but excluding expenditures made
in connection with the replacement or restoration of assets, to the extent
reimbursed or financed from insurance proceeds or condemnation awards).
"Capital Lease", as applied to any Person, shall mean any lease of any
property (whether real, personal, or mixed) by that Person as lessee which,
in conformity with GAAP, is accounted for as a capital lease on the balance
sheet of that Person.
"Cash Collateral Account" shall have the meaning ascribed to such term
in Section 2.04.
------------
"Cash Equivalents" shall mean (a) marketable direct obligations issued
or unconditionally guaranteed by the United States Government or issued by an
agency thereof and backed by the full faith and credit of the United States
of America or having a rating of at least A-1 or P-1 from either S&P or
Moody's, in each case maturing within 360 days after the date of acquisition
thereof; (b) 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 maturing within 180 days (or, if no Loans are
outstanding at the time of acquisition thereof and after giving effect
thereto, 360 days) after the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either S&P
or Moody's (or, if at any time neither S&P nor Moody's shall be rating such
obligations, then from such other nationally recognized rating services
acceptable to the Requisite Lenders) and not listed in Credit Watch published
------------
by S & P; (c) commercial paper, other than commercial paper issued by the
Borrower or any Subsidiary of the Borrower or any of their Affiliates,
6
================================================================================
maturing no more than 180 days (or, if no Loans are outstanding at the time
of acquisition thereof and after giving effect thereto, 270 days) after the
date of creation thereof and, at the time of acquisition thereof, having a
rating of at least A-1 or P-1 from either S&P or Moody's (or, if at any time
neither S&P nor Moody's shall be rating such obligations, then the highest
rating from other nationally recognized rating services acceptable to the
Requisite Lenders); (d) domestic and Eurodollar certificates of deposit or
time deposits or bankers' acceptances maturing within 180 days (or, if no
Loans are outstanding at the time of acquisition thereof and after giving
effect thereto, 360 days) after the date of acquisition thereof issued by any
commercial bank organized under the laws of the United States of America or
any state thereof or the District of Columbia having combined capital and
surplus of not less than $500,000,000; and (e) auction rate preferred
instruments maturing no later than 35 days from the date of purchase.
"Change in Control" shall be deemed to have occurred at such time as
either of the following events shall occur:
(i) There shall be consummated any consolidation or merger of
ATSC or the Borrower pursuant to which the Common Stock would be
converted into cash, or other property, in each case, other than a
consolidation or merger of ATSC or the Borrower in which the holders of
Common Stock immediately prior to the consolidation or merger have,
directly or indirectly, at least a majority of the total voting power
in the aggregate of all classes of common stock of the continuing or
surviving corporation normally entitled to vote in elections of
directors immediately after such consolidation or merger; or
(ii) There is a report filed by any person, including its
Affiliates and Associates (as defined in Rule 12b-2 of the General
Rules and Regulations under the Exchange Act), on Schedule 13D or 14D-1
(or any successor schedule, form or report) pursuant to the Exchange
Act, disclosing that such person (for the purposes of this definition
only, the term "person" shall include a "person" within the meaning of
Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any
successor provision to either of the foregoing) has become the
beneficial owner (as the term "beneficial owner" is defined under Rule
13d-3 or any successor rule or regulation promulgated under the
Exchange Act) of 50% or more of the total voting power in the aggregate
of all classes of capital stock then outstanding of ATSC or the
Borrower normally entitled to vote in elections of directors; provided,
however, that a person shall not be deemed beneficial owner of, or to
own beneficially, (A) any securities tendered pursuant to a tender or
exchange offer made by or on behalf of such person or any of such
person's Affiliates or Associates until such tendered securities are
accepted for purchase or exchange thereunder, or (B) any securities if
such beneficial ownership (1) arises solely as a result of a revocable
proxy delivered in response to a proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and
regulations under the Exchange Act, and (2) is not also then reportable
on Schedule 13D (or any successor schedule, form or report) under the
Exchange Act; or
(iii) The occurrence of any transaction or event in connection
with which all or substantially all Common Stock shall be exchanged
7
================================================================================
for, converted into, acquired for or constitute solely the right to
receive consideration (whether by means of an exchange offer,
liquidation, tender offer, consolidation, merger, combination,
reclassification, recapitalization or otherwise) all or substantially
all of which consists of common stock which is (or, upon consummation
of or immediately following such transaction or event, which will be)
listed on a United States national securities exchange or approved for
quotation on the Nasdaq National Market or any similar United States
system of automated dissemination of quotations of securities prices.
Notwithstanding the foregoing, a Change in Control shall not be
deemed to have occurred if at any time ATSC, any Subsidiary of ATSC,
any employee stock ownership plan or any other employee benefit plan of
either ATSC or any Subsidiary of ATSC, or any person holding shares of
Common Stock for or pursuant to the terms of any such employee benefit
plan, files or becomes obligated to file a report under or in response
to Schedule 13D or Schedule 14D-1 (or any successor schedule, form or
report) under the Exchange Act disclosing beneficial ownership by it of
50% or more of the total voting power in the aggregate of all classes
of Common Stock then outstanding of ATSC normally entitled to vote in
elections of directors.
"Citibank Letters of Credit" shall mean the letters of credit listed on
Schedule 3.01(c).
- ---------------
"Claim" shall mean any claim or demand, by any Person, of whatsoever
kind or nature for any actual or alleged Liabilities and Costs, whether based
in contract, tort, implied or express warranty, strict liability, criminal or
civil statute, Permit, ordinance or regulation, common law or otherwise.
"Cleandown" shall have the meaning ascribed to such term in Section
-------
2.01(a)(v).
- ----------
"Cleandown Period" shall have the meaning ascribed to such term in
Section 2.01(a)(v).
- ------------------
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and any successor statute.
"Collateral" shall mean all property and interests in property now
owned or hereafter acquired in or upon which a security interest, pledge,
lien or mortgage is granted or of which a collateral assignment is made under
the Collateral Documents.
"Collateral Documents" shall mean the ATSC Guaranty, the ATSC Pledge
Agreement, the Borrower Pledge Agreement, the Trademark Security Agreement
and the Subsidiary Guaranty and Collateral Agreement, and any other document
creating in favor of the Administrative Agent, for the benefit of the
Lenders, a security interest in any property as security for the Obligations,
as any of the foregoing may be amended, supplemented or otherwise modified
from time to time.
"Commercial Letter of Credit" shall mean any Letter of Credit which is
drawable upon presentation of documents, drafts at sight and time drafts
evidencing the sale or shipment of goods purchased by the Borrower in the
ordinary course of its business.
8
================================================================================
"Commission" shall mean the Securities and Exchange Commission.
"Commitment" shall mean, with respect to each Lender as the context may
require, (a) the amount set out opposite such Lender's name under the heading
"Commitment" in Schedule 1.01(b) or assigned to it in accordance with Section
---------------- -------
12.01(a), as such amount may be reduced or otherwise adjusted from time to
- --------
time pursuant to the terms of this Agreement or (b) the obligation of such
Lender to make Loans hereunder and participate in Letters of Credit up to the
amount specified in the immediately preceding clause (a), and "Commitments"
shall mean the aggregate amount of the Commitments of all Lenders.
"Commitment Letter" shall mean the Commitment Letter dated March 1,
2001 from Bank of America, as Administrative Agent, and the Arranger to the
Borrower.
"Common Stock" shall mean the common stock of ATSC, the par value of
which is set forth in the ATSC Certificate of Incorporation, as such
certificate may be amended, restated or otherwise modified from time to time.
"Compliance Certificate" shall mean a certificate substantially in the
form of Exhibit 6.01(d)(i) delivered to the Administrative Agent by the
------------------
Borrower pursuant to Section 6.01(d)(i) and covering the Borrower's
-------------------
compliance with the covenants contained in Article IX and certain of the
-----------
covenants contained in Article VIII.
------------
"Contaminant" shall mean any pollutant, hazardous substance, hazardous
chemical, toxic substance, hazardous waste or special waste, as those terms
are defined in federal, state or local laws and regulations, radioactive
material, petroleum, including crude oil or any petroleum-derived substance,
or breakdown or decomposition product thereof, or any constituent of any such
substance or waste, including polychlorinated biphenyls and asbestos.
"Contractual Obligation", as applied to any Person, shall mean any
provision of any Securities issued by that Person or any indenture, mortgage,
deed of trust, contract, undertaking, document, instrument or other agreement
or 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
(including any restrictive covenant affecting such Person or any of its
properties).
"Convertible Debentures" shall mean the Convertible Subordinated
Debentures due 2019 issued pursuant to the Convertible Debenture Indenture.
"Convertible Debenture Indenture" shall mean that certain Indenture,
dated as of June 18, 1999, between ATSC and the Bank of New York, as Trustee.
"Convertible Debentures Note" shall mean the $180,975,000.00 promissory
note of the Borrower dated June 18, 1999 payable to ATSC in respect of
payments due on the Convertible Debentures.
9
================================================================================
"Cost/Market Reserve" shall mean, as of any Calculation Date, the lower
of cost or market reserve for the most recent fiscal month calculated in
accordance with the accounting practices of the Borrower and the Subsidiary
Guarantors.
"Credit Card Accounts" shall mean all accounts receivable arising out
of any sale in the ordinary course of business pursuant to proprietary credit
card transactions.
"Credit Facility" shall mean the loan and letter of credit facility
provided to the Borrower pursuant to this Agreement.
"Current Assets" shall mean, as at any date of determination, the
consolidated assets of the Borrower and its Restricted Subsidiaries which may
properly be classified as current assets in conformity with GAAP.
"Current Liabilities" shall mean, as at any date of determination, the
consolidated liabilities of the Borrower and its Restricted Subsidiaries
which may properly be classified as current liabilities in conformity with
GAAP.
"Customary Permitted Liens" shall mean:
(a) Liens (other than Environmental Liens and any Lien imposed under
ERISA) for claims, taxes, assessments or charges of any Governmental
Authority not yet due or which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with GAAP;
(b) statutory Liens of landlords, bankers, carriers, warehousemen,
mechanics, materialmen and other Liens (other than any Lien imposed under
ERISA or any Environmental Lien) imposed by law, arising in the ordinary
course of business and for amounts which (i) are not yet due, (ii) are not
more than 30 days past due as long as no notice of default has been given or
other action taken to enforce such Liens, or (iii)(A) are not more than 30
days past due and a notice of default has been given or other action taken to
enforce such Liens, or (B) are more than 30 days past due, and, in the case
of clause (A) or (B), are being contested in good faith by appropriate
proceedings which are sufficient to prevent imminent foreclosure of such
Liens and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with GAAP;
(c) Liens (other than any Lien imposed under ERISA or any
Environmental Lien) incurred or deposits made in the ordinary course of
business (including surety bonds and appeal bonds) in connection with
workers' compensation, unemployment insurance and other types of employment
benefits or to secure the performance of tenders, bids, leases, contracts
(other than in respect of Indebtedness), statutory obligations and other
similar obligations or arising as a result of progress payments under
government contracts;
(d) easements (including reciprocal easement agreements and utility
agreements), rights-of-way, covenants, consents, rights of landlords,
reservations, encroachments, variations and other restrictions, charges or
10
================================================================================
encumbrances (whether or not recsrded) affecting the use of real property,
which do not materially interfere with the ordinary conduct of the business
of the Borrower; and
(e) Liens on goods 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 such goods.
"DOL" shall mean the United States Department of Labor and any
successor department or agency.
"Dollars" and "$" shall mean the lawful money of the United States of
America.
"Domestic Lending Office" shall mean, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" in Schedule
--------
1.01(a) or in the Assignment and Acceptance by which it became a Lender or
- -------
such other office of such Lender as such Lender may from time to time specify
to the Borrower and the Administrative Agent.
"EBITDAR" shall mean, for any period, the sum of the amounts for such
period, of (a) Net Income, plus (b) to the extent Net Income is reduced
thereby (i) all charges for amortization of intangibles and depreciation,
(ii) Interest Expense, (iii) income tax expense, (iv) extraordinary losses
(net of tax benefits) as shown on the consolidated income statement of ATSC,
the Borrower and its Restricted Subsidiaries, plus (c) Rental Expense, minus
(d) extraordinary gains (net of taxes) as shown on the consolidated income
statement of ATSC, the Borrower and its Restricted Subsidiaries.
"EBITR" shall mean, for any period, the sum of the amounts for such
period, of (a) Net Income, plus (b) to the extent Net Income is reduced
thereby (i) Interest Expense, (ii) income tax expense and (iii) extraordinary
losses (net of tax benefits) as shown on the consolidated income statement of
ATSC, the Borrower and its Restricted Subsidiaries, plus (c) Rental Expense,
minus (d) extraordinary gains (net of taxes) as shown on the consolidated
income statement of ATSC, the Borrower and its Restricted Subsidiaries.
"Effective Date" shall mean the date this Agreement becomes effective
in accordance with Section 4.01.
------------
"Eligible Accounts Receivable" shall mean, as of any Calculation Date,
all Credit Card Accounts of the Borrower and the Subsidiary Guarantors that
satisfy each of the following criteria:
(a) such Credit Card Account has been adjusted to reflect the
return or rejection of, or any loss of or damage to any of the
Inventory giving rise to such Credit Card Account, and is not subject
to bona fide set-offs, counterclaims, defenses, or disputes asserted
with respect to such Credit Card Account;
(b) to the best knowledge of the Borrower and the Subsidiary
Guarantors, the Account Debtor with respect to such Credit Card Account
is not insolvent or the subject of any bankruptcy case or insolvency
proceeding of any kind, unless such Credit Card Account is due from
11
================================================================================
such Account Debtor as an administrative claim under the Bankruptcy
Code and the Administrative Agent, in the exercise of its reasonable
business judgment, deems the Account Debtor to be creditworthy;
(c) the Account Debtor in respect of such Credit Card Account
has a mailing address within the United States of America (excluding
the Virgin Islands and any other territory of the United States) or
Puerto Rico;
(d) the Account Debtor in respect of such Credit Card Account
is not the United States of America or any state, territory,
subdivision, department, or agency thereof;
(e) such Credit Card Account does not arise out of transactions
with a Subsidiary or Affiliate (other than directors, officers and
employees) of the Borrower or any Subsidiary Guarantor;
(f) no amount payable in respect of such Credit Card Account
has remained unpaid for a period exceeding sixty days after the due
date stated on the customer statement therefor;
(g) such Credit Card Account is owed by an Account Debtor which
does not then have balances on its Credit Card Accounts which are more
than 60 days past due which exceed 50% of the total balance of all such
Credit Card Accounts owed by such Account Debtor;
(h) such Credit Card Account has not been and is not required
to be charged off or written off as uncollectible in accordance with
the customary business practice of the Borrower and the Subsidiary
Guarantors;
(i) such Credit Card Account does not arise out of any claim in
tort, is not evidenced by chattel paper, a promissory note, a
negotiable instrument, or any other instrument of any kind or, if such
Credit Card Account is evidenced by chattel paper, a promissory note, a
negotiable instrument or any other instrument, such chattel paper,
promissory note, negotiable instrument or other instrument has been
delivered to the Administrative Agent and is subject to a first
priority security interest in favor of the Administrative Agent;
(j) the amount of the face value of such Credit Card Account
listed on any schedule of Credit Card Accounts and shown on all
customer statements delivered to the Administrative Agent with respect
to such Credit Card Account is not subject to any asserted bona fide
retainages or holdbacks of any type, is actually and absolutely owing,
and is not contingent on any condition, in each case, other than in
respect of repurchase or return agreements that (i) arise in the
ordinary course of the Borrower's business and (ii) are consistent with
the Borrower or such Subsidiary Guarantor's historical business
practice;
12
================================================================================
(k) such Credit Card Account does not arise out of a cash on
delivery sale;
(l) such Credit Card Account does not arise out of the sale of
samples;
(m) such Credit Card Account is owned solely by the Borrower or
a Subsidiary Guarantor and is evidenced by a customer statement and has
arisen from the sale of goods which have been shipped or delivered to
an Account Debtor on an absolute sale basis, have not been shipped or
delivered on a consignment, approval, or sale-or-return basis, and are
not subject to any repurchase or return agreement or arrangement, other
than those repurchase or return agreements or arrangements that (i)
arise in the ordinary course of the Borrower's business and (ii) are
consistent with the Borrower or such Subsidiary Guarantor's historical
business practices; and
(n) such Credit Card Account is subject to a Lien in favor of
the Administrative Agent and is not subject to Liens other than
Permitted Account Liens.
The Administrative Agent may, in its reasonable discretion, adjust or
change the foregoing eligibility criteria or add additional reserves with
respect to Eligible Accounts Receivable based upon the results of the most
recent collateral audit performed pursuant to Section 7.06.
------------
"Eligible Accounts Receivable Amount" shall mean, as of any Calculation
Date, (a) Eligible Accounts Receivable of the Borrower and the Subsidiary
Guarantors at such Calculation Date minus (b) the Sales Tax Reserve at such
Calculation Date.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural Person)
approved by the Administrative Agent, and, unless (x) such Person is taking
delivery of an assignment in connection with physical settlement of a credit
derivatives transaction and such Person has total assets in excess of
$1,000,000,000 and such transaction is documented by an International Swap
Dealers Association Inc. Master Agreement or (y) an Event of Default has
occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed).
"Eligible Fixed Assets" shall mean, as of any Calculation Date, the net
book value of all furniture and fixtures (excluding leasehold improvements)
of the Borrower and the Subsidiary Guarantors as set forth on the most recent
balance sheet of the Borrower and the Subsidiary Guarantors prepared in
accordance with GAAP, which are subject to a perfected security interest in
favor of the Administrative Agent and are subject to no other Liens other
than Permitted Fixed Asset Liens. The Administrative Agent may, in its
reasonable discretion, add additional eligibility criteria or reserves with
respect to Eligible Fixed Assets based upon the results of the most recent
collateral audit performed pursuant to Section 7.06.
------------
"Eligible Fixed Asset Amount" shall mean, as of any Calculation Date,
the Eligible Fixed Assets of the Borrower and the Subsidiary Guarantors at
such Calculation Date times the Advance Rate for Eligible Fixed Assets.
13
================================================================================
"Eligible Inventory Amount" shall mean, as of any Calculation Date, (a)
the Inventory Value of all Eligible Inventory of the Borrower and the
Subsidiary Guarantors at such Calculation Date minus (b) the sum of, (i) the
Cost/Market Reserve as of such Calculation Date, (ii) the Shrink Reserve as
of such Calculation Date, and (iii) the Positive Price Variance Reserve as of
such Calculation Date.
"Eligible Inventory" shall mean, as of the Calculation Date, all
Inventory of the Borrower and the Subsidiary Guarantors consisting of
finished goods available for sale that satisfies each of the following
criteria as of such day:
(a) such Inventory (i) is owned solely by the Borrower or any
such Subsidiary Guarantor and (ii) is not leased by or on consignment
to the Borrower or any Subsidiary Guarantor;
(b) such Inventory is located at property that is owned or
leased by the Borrower or any Subsidiary Guarantor or such other
location as to which UCC-1 financing statements in favor of the Agent
for the benefit of the Lenders have been filed, including Inventory
which is in transit from one property that is owned or leased by the
Borrower or any Subsidiary Guarantor (or a flow through center or a
distribution center) to another property that is owned or leased by the
Borrower or any Subsidiary Guarantor (or a flow through center or a
distribution center);
(c) such Inventory is not subject to a layaway purchase by any
customer;
(d) such Inventory is not located at any return center used by
the Borrower or any Subsidiary Guarantor;
(e) such Inventory is located in the United States of America
(excluding territories and possessions thereof) and Puerto Rico; and
(f) such Inventory is subject to a perfected security interest
in favor of the Administrative Agent and is not subject to Liens other
than Permitted Inventory Liens.
The Administrative Agent may, in its reasonable discretion, adjust or
change the foregoing eligibility criteria or add additional reserves with
respect to Eligible Inventory based upon the results of the most recent
collateral audit performed pursuant to Section 7.06.
------------
"Environmental Lien" shall mean a Lien in favor of any Governmental
Authority for (a) any liability of the Borrower or any Subsidiary of the
Borrower under federal or state environmental laws or regulations, or (b)
damages arising from, or costs incurred by such Governmental Authority in
response to, a Release or threatened Release of a Contaminant into the
environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor statute.
14
================================================================================
"ERISA Affiliate" shall mean any (a) corporation which is a member of
the same controlled group of corporations (within the meaning of Section
414(b) of the Code) as the Borrower or any of its Subsidiaries, (b)
partnership or other trade or business (whether or not incorporated) under
common control (within the meaning of Section 414(c) of the Code) with the
Borrower or any of its Subsidiaries, and (c) member of the same affiliated
service group (within the meaning of Section 414(m) of the Code) as the
Borrower or any of its Subsidiaries, any corporation described in clause (a)
above or any partnership or trade or business described in clause (b) above.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" in
Schedule 1.01(a) or in the Assignment and Acceptance by which it became a
- -----------------
Lender (or, if no such office is specified, its Domestic Lending Office) or
such other office of such Lender as such Lender may from time to time specify
by written notice to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent
pursuant to the following formula:
Eurodollar Rate = Eurodollar Base Rate
-------------------------------------
1.00 - Eurodollar Reserve Percentage
"Eurodollar Base Rate" shall mean, for any Interest Period with respect
to any Eurodollar Rate Loan:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, or
(b) if the rate referenced in the preceding subsection (a) does not
appear on such page or service or such page or service shall cease to be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding subsections (a) and (b)
are not available, the rate per annum determined by the Administrative Agent
as the rate of interest (rounded upward to the next 1/100th of 1%) at which
deposits in Dollars for delivery on the first day of such Interest Period in
same day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's London Branch to
15
================================================================================
major banks in the offshore Dollar market at their request at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period.
"Eurodollar Rate Loans" shall mean those Loans outstanding which bear
interest at a rate determined by reference to the Eurodollar Rate as provided
in Section 2.02.
------------
"Eurodollar Reserve Percentage" shall mean with respect to any Interest
Period for any Eurodollar Rate Loan, that percentage (expressed as a decimal
rounded upwards to the nearest 1/100%) which is in effect on the date the
Eurodollar Rate for such Interest Period is determined as prescribed by the
Federal Reserve Board, for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement)
for a member bank of the Federal Reserve System with deposits exceeding
$5,000,000,000 in respect of "Eurocurrency liabilities" having a term equal
to such Interest Period (or in respect of any other category of liabilities
which includes deposits by reference to which the interest rate on Eurodollar
Rate Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any bank to
United States residents).
"Event of Default" shall mean any of the occurrences set forth in
Section 10.01 after the expiration of any applicable grace period expressly
- -------------
provided therein.
"Existing Letter of Credit" shall mean each Letter of Credit identified
in Schedule 3.01(b).
----------------
"Exchange Act" shall mean the Securities Exchange Act of 1934 as it
shall be amended from time to time, and any successor act thereto and the
rules and regulations of the Federal Securities and Exchange Commission
promulgated thereunder.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor thereto.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards to the nearest 1/100 of 1%) equal to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank on the Business Day next succeeding such day;
provided that (a) if such day is not a Business Day, the Federal Funds Rate
- --------
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if
no such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System or any Governmental Authority succeeding to its
functions.
"Fee Letter" shall mean the Fee Letter dated March 1, 2001 between the
Borrower, Bank of America, as Administrative Agent, and the Arranger.
"Final Maturity Date" shall mean April 29, 2004.
16
================================================================================
"Fiscal Year" shall mean the fiscal year of the Borrower, which shall
be the twelve-month period ending on the Saturday closest to January 31 in
each year or such other period as the Borrower may designate and the
Requisite Lenders may approve (such approval not to be unreasonably withheld)
in writing. A Fiscal Year ending in January or February, as the case may be,
of any calendar year shall have the numerical designation of the prior
calendar year.
"Fixed Charge Coverage Ratio" shall mean, for any period, the quotient
obtained by dividing (a) EBITDAR minus Capital Expenditures by (b) the sum of
(i) Interest Expense plus (ii) Rental Expense.
"Foreign Currency Exchange Contracts" shall mean any foreign currency
exchange agreement or other currency exchange rate arrangement providing
currency exchange rate protection, entered into by the Borrower, ATSC or any
of their respective Restricted Subsidiaries.
"Foreign Subsidiary" shall mean any Subsidiary of the Borrower
organized under the laws of any jurisdiction outside the United States of
America.
"Fund" means any Person (other than a natural Person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"Funded Debt" shall mean, as at any date of determination, all
Indebtedness then outstanding (a) for the principal of Loans under this
Agreement and (b) for money borrowed or under any debt Securities issued by
ATSC, the Borrower or any Restricted Subsidiary (whether or not subordinated)
determined on a consolidated basis in accordance with GAAP.
"Funding Date" shall mean the date of borrowing any Loan.
"GAAP" shall mean generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, or in such other
statements by such other entity as may be in general use by significant
segments of the accounting profession, which are applicable to the
circumstances as of the date of determination.
"Governmental Acts" shall have the meaning ascribed to such term in
Section 3.09(a).
- ---------------
"Governmental Authority" shall mean any nation, state, sovereign, or
government, any federal, regional, state, local or political subdivision and
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guarantors" shall mean ATSC and each Restricted Subsidiary (other than
Foreign Subsidiaries and Nonmaterial Domestic Subsidiaries) of the Borrower.
17
================================================================================
"Indebtedness", as applied to any Person, shall mean (a) all
indebtedness, obligations or other liabilities of such Person for borrowed
money or under any debt Securities, whether or not subordinated, (b) all
obligations with respect to redeemable stock and redemption or repurchase
obligations under any equity securities or profit payment agreements, (c) all
reimbursement obligations and other liabilities of such Person with respect
to letters of credit issued for such Person's account, (d) all obligations of
such Person to pay the purchase price of property or services, except trade
payables incurred by such Person in the ordinary course of business as
presently conducted, (e) all obligations in respect of Capital Leases of such
Person, (f) all Accommodation Obligations of such Person, (g) all
indebtedness, obligations or other liabilities of such Person or others
secured by a Lien on any asset of such Person, whether or not such
indebtedness, obligations or liabilities are assumed by or are a personal
liability of such Person, all as of such time, and (h) all indebtedness,
obligations or other liabilities in respect of Interest Rate Contracts and
Foreign Currency Exchange Contracts. For purposes of determining
Indebtedness, the "principal amount" of the obligations of the Borrower or
any Subsidiary in respect of any Interest Rate Contract or Foreign Currency
Exchange Contract at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that the Borrower or such Subsidiary would
be required to pay if such Contract were terminated at such time.
"Initial Loans" shall have the meaning ascribed to such term in Section
------
4.01.
- ----
"Interest Expense" shall mean, for any period for ATSC, the Borrower
and its Restricted Subsidiaries on a consolidated basis, total consolidated
interest expense, whether paid or accrued (including any amortization of
discount and the interest component of Capital Leases), for such period,
including to the extent included in interest expense, all commissions,
discounts and other fees and charges owed with respect to the letters of
credit, the fees payable under this Agreement and net costs under Interest
Rate Contracts, all as determined in conformity with GAAP, plus (without
duplication) all capitalized interest, minus payments received under Interest
Rate Contracts and interest income.
"Interest Payment Date" shall mean with respect to any Eurodollar Rate
Loan, the last day of each Interest Period applicable to such Loan; provided
that in the case of an Interest Period of six months or longer, "Interest
Payment Date" shall also include each date that is a three-month anniversary
of the first day of such Interest Period.
"Interest Period" shall have the meaning ascribed to such term in
Section 2.06.
- ------------
"Interest Rate Contracts" shall mean interest rate exchange, collar,
cap or similar agreements providing interest rate protection, entered into by
the Borrower, ATSC or any of their respective Restricted Subsidiaries.
"Inventory" shall mean, as to any Person, any "inventory" as such term
is defined in Section 9-109(4) of the UCC, now or hereafter owned by such
Person.
"Inventory Value" shall mean, with respect to any Inventory of the
Borrower or any Subsidiary Guarantor, the value of such Inventory valued at
cost on a basis consistent with the Borrower's or such Subsidiary Guarantor's
current and historical accounting practice (without giving effect to
18
================================================================================
markdowns, intercompany profit, rebates and discounts and capitalized
inventory costs on the consolidated balance sheet of the Borrower and the
Subsidiary Guarantors in respect of Inventory (other than capitalized costs
recorded in accordance with GAAP)).
"Investment" shall mean, as applied to any Person, any direct or
indirect purchase or other acquisition by that Person of Securities, or of a
beneficial interest in Securities, of any other Person, and any direct or
indirect loan, advance (other than deposits with financial institutions
available for withdrawal on demand, prepaid expenses, advances to employees
and similar items made or incurred in the ordinary course of business), or
capital contribution by such Person to any other Person, including all
Indebtedness and accounts owed by that other Person which are not current
assets or did not arise from sales of goods or services to that Person in the
ordinary course of business. The amount of any Investment shall be
determined in conformity with GAAP.
"IRS" shall mean the Internal Revenue Service of the United States or
any Governmental Authority succeeding to the functions thereof.
"Issuing Banks" shall mean First Union National Bank, The Chase
Manhattan Bank and Bank of America, and any other Lender selected by the
Borrower and approved by the Administrative Agent.
"Issuing Bank Agreement" shall mean, as to each Issuing Bank, any
agreement entered into by such Issuing Bank and the Borrower relating to
Letters of Credit.
"Lender" shall have the meaning ascribed to such term in the preamble
and shall include Bank of America, in its individual capacity, each Issuing
Bank and each Person which at any time becomes a Lender pursuant to Section
-------
12.01(a).
- --------
"Letter of Credit" shall mean any Commercial Letter of Credit or any
Standby Letter of Credit issued by any Issuing Bank for the account of the
Borrower pursuant to Article III and includes each Existing Letter of Credit,
-----------
but excludes the Citibank Letters of Credit.
"Letter of Credit Fee" shall have the meaning ascribed to such term in
Section 2.03(d).
- ---------------
"Letter of Credit Obligations" shall mean, at any particular time, the
sum of (a) Reimbursement Obligations and (b) the aggregate maximum amount
then available for drawing under the Letters of Credit.
"Level I Status" exists at any date if the Pricing Ratio on such date
is greater than or equal to 3.25 to 1.00.
"Level II Status" exists at any date if the Pricing Ratio on such date
is less than 3.25 to 1.00 but greater than or equal to 2.50 to 1.00.
"Level III Status" exists at any date if the Pricing Ratio on such date
is less than 2.50 to 1.00 but greater than or equal to 1.75 to 1.00.
19
================================================================================
"Level IV Status" exists at any date if the Pricing Ratio on such date
is less than 1.75 to 1.00.
"Liabilities and Costs" shall mean all liabilities, claims,
obligations, responsibilities, losses, damages, punitive damages,
consequential damages, treble damages, charges, costs and expenses (including
attorney's, expert's and consulting fees and costs of investigation and
feasibility studies), fines, penalties and monetary sanctions, interest,
direct or indirect, known or unknown, absolute or contingent, past, present
or future.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, security interest, encumbrance (including,
but not limited to, easements, rights of way and the like), lien (statutory
or other), Environmental Lien, security agreement or transfer intended as
security, including any conditional sale or other title retention agreement,
the interest of a lessor under a Capital Lease, any financing lease having
substantially the same economic effect as any of the foregoing, and the
filing of any financing statement (other than a financing statement filed
pursuant to Section 9-408 of the Uniform Commercial Code not intended as
security).
"Loan Account" shall have the meaning ascribed to such term in Section
-------
2.01(d).
- ------
"Loan Documents" shall mean this Agreement, the Notes, the Collateral
Documents and the Letters of Credit and all other agreements delivered to the
Administrative Agent, the Issuing Banks or any Lender by or on behalf of the
Borrower in satisfaction of the requirements of this Agreement.
"Loan Party" shall mean ATSC, the Borrower and any Restricted
Subsidiary which is a party to any Loan Document.
"Loans" shall have the meaning ascribed to such term in Section 2.01(a).
---------------
"Margin Stock" shall have the meaning ascribed to such term in
Regulation U.
"Material Adverse Effect" shall mean, with respect to the Borrower,
ATSC and its Restricted Subsidiaries, a material adverse effect upon the
business, assets or other properties, liabilities or condition (financial or
otherwise), results of operations or prospects of the Borrower and its
Restricted Subsidiaries taken as a whole or ATSC and its Subsidiaries taken
as a whole, as the case may be, upon the ability of the Borrower to repay the
Loans, or upon the benefits provided to the Administrative Agent or the
Lenders under the Collateral Documents.
"Maximum Loan Amount" shall mean, at any time, the lesser of (a) (i)
the Commitments at such time (as reduced pursuant to Sections 2.01(e) and
-----------------
2.04 less (ii) the then aggregate outstanding Letter of Credit Obligations
- ----
and (b) $75,000,000.
"Moody's" shall mean Moody's Investors Service, Inc.
20
================================================================================
"Multiemployer Plan" shall mean a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA which is, or within the immediately preceding six
years was, contributed to by either the Borrower or any ERISA Affiliate or
under which the Borrower or any ERISA Affiliate may incur any liability.
"Net Income" shall mean, for any period on a consolidated basis for
ATSC, the Borrower and its Restricted Subsidiaries, the consolidated net
income (or loss) of ATSC, the Borrower and its Restricted Subsidiaries for
such period taken as a single accounting period, determined in conformity
with GAAP.
"Nonmaterial Domestic Subsidiaries" shall mean any Restricted
Subsidiary (other than a Foreign Subsidiary) which has total assets of
$500,000 or less, provided that the total assets of all Nonmaterial Domestic
Subsidiaries shall not exceed $2,000,000 in the aggregate and to the extent
the aggregate total assets of all such Restricted Subsidiaries exceeds
$2,000,000, one or more such Restricted Subsidiaries (in descending order
based upon their total assets) shall not be "Nonmaterial Domestic
Subsidiaries" until such excess is eliminated.
"Non-U.S. Lender" shall have the meaning ascribed to such term in
Section 2.08(e).
- ---------------
"Note" shall have the meaning ascribed to such term in Section 2.01(d).
---------------
"Notice of Borrowing" shall mean, with respect to a proposed Borrowing
pursuant to Section 2.01(b), a notice substantially in the form of Exhibit
--------------- -------
2.01.
- ----
"Notice of Conversion/Continuation" shall mean, with respect to a
proposed conversion or continuation of a Loan pursuant to Section 2.02(c), a
--------------
notice substantially in the form of Exhibit 2.02.
-------------
"Obligations" shall mean the principal of and all interest on all Loans
and Reimbursement Obligations, all fees, expense reimbursements, taxes,
compensation and indemnities payable by the Borrower to the Administrative
Agent, the Issuing Banks, or any Lender pursuant to this Agreement and all
other present and future Indebtedness and other liabilities of the Borrower
owing to the Administrative Agent, the Issuing Banks, any Lender (or, in the
case of any Interest Rate Contract or Foreign Currency Exchange Contract, any
Affiliate of any Lender), or any Person entitled to indemnification pursuant
to Section 12.04, or any of their respective successors, transferees or
--------------
assigns, of every type and description, whether or not evidenced by any note,
guaranty or other instrument, arising under or in connection with this
Agreement, any other Loan Document, or any Interest Rate Contract or Foreign
Currency Exchange Contract, whether or not for the payment of money, whether
direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and
however arising.
"Operating Lease" shall mean, as applied to any Person, any lease of
any Property by that Person as lessee which is not a Capital Lease.
21
================================================================================
"Original Credit Agreement" shall have the meaning ascribed to such
term in the preamble.
"Other Taxes" shall have the meaning ascribed to such term in Section
--------
2.08(b).
- -------
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
Person succeeding to the functions thereof.
"Permits" shall mean any permit, approval, consent, authorization,
license, variance, or permission required from a Governmental Authority under
an applicable Requirement of Law.
"Permitted Account Liens" shall mean the collective reference to Liens
permitted by clause (a) of the definition of Customary Permitted Liens.
"Permitted Existing Indebtedness" shall mean the Indebtedness existing
on the date hereof and set forth in Schedule 8.01(k).
---------------
"Permitted Existing Liens" shall mean the Liens on any Property, other
than any Environmental Liens, reflected on Schedule 8.02(b).
----------------
"Permitted Fixed Asset Liens" shall mean the collective reference to
Liens permitted by clauses (a) and (b) of the definition of Customary
Permitted Liens.
"Permitted Inventory Liens" shall mean the collective reference to
Liens permitted by clauses (a), (b) and (e) of the definition of Customary
Permitted Liens.
"Permitted Receivables Securitization" shall mean any transaction
involving a "true sale" of Credit Card Accounts of the Borrower or any
Subsidiary of the Borrower and related chattel paper and general intangibles
to any entity that is not a Guarantor, which transaction may include a
transfer of the right to originate Credit Card Accounts.
"Person" shall mean any natural person, corporation, limited
partnership, general partnership, limited liability company, joint stock
company, joint venture, association, company, trust, bank, trust company,
land trust, business trust or other organization, whether or not a legal
entity, or any other nongovernmental entity, or any Governmental Authority.
"Plan" shall mean an employee benefit plan defined in Section 3(3) of
ERISA which the Borrower or any ERISA Affiliate maintains, administers,
contributes to or is required to contribute to, or under which the Borrower
or any ERISA Affiliate may incur any liability.
"Positive Price Variance Reserve" shall mean, as of any Calculation
Date, the reserve established by the Borrower and the Subsidiary Guarantors
for the most recently completed fiscal quarter in accordance with the
historical accounting practices of the Borrower and the Subsidiary Guarantors
in respect of the excess, if any, of (a) the standard costs associated with
the importation of Inventory over (b) the actual costs associated with the
importation of Inventory.
22
================================================================================
"Potential Event of Default" shall mean an event which, with the giving
of notice or the lapse of time, or both, would constitute an Event of Default.
"Pricing Ratio" shall mean, during any fiscal quarter, the quotient
obtained by dividing (a) EBITR by (b) the sum of (i) Interest Expense plus
(ii) Rental Expense for the period of four consecutive fiscal quarters ended
on the last day of the immediately preceding fiscal quarter. Changes in the
Pricing Ratio indicated by a Pricing Ratio Certificate shall become effective
on the first day of the fiscal quarter following the fiscal quarter in
respect of which such Pricing Ratio Certificate is delivered; provided,
however, that (a) if any payment of interest, commitment fee or Letter of
Credit Fee is made during the period between the first day of a fiscal
quarter (including the fiscal quarter ending May 5, 2001) and the date which
is five Business Days after the date of delivery of the Pricing Ratio
Certificate for the immediately preceding fiscal quarter, such payment shall
be tentatively calculated on the basis of the Pricing Ratio in effect during
such immediately preceding fiscal quarter until the Pricing Ratio is adjusted
upon delivery of such Pricing Ratio Certificate (it being agreed that Level
III Status shall be deemed to exist in respect of the fiscal quarter ending
May 5, 2001) and (b) in the event that no Pricing Ratio Certificate has been
delivered for a fiscal quarter prior to the last day of the next succeeding
fiscal quarter, Level IV Status shall be presumed to exist until delivery of
such Pricing Ratio Certificate. Changes in the rates of calculation of
interest, commitment fee or Letter of Credit Fee resulting from the operation
of either of clauses (a) or (b) above for any fiscal quarter shall be given
effect through adjustments to the next payments to be made of interest,
commitment fee or Letter of Credit Fee, as the case may be, so as to give
effect to such changes retroactively to the beginning of such fiscal quarter.
"Pricing Ratio Certificate" shall have the meaning given to such term
in Section 6.01(d)(ii).
-------------------
"Prime Rate" means the per annum rate of interest as publicly announced
from time to time by Bank of America as its "prime rate". Such rate is a rate
set by Bank of America based upon various factors including Bank of America's
costs and desired return, general economic conditions and other factors, and
is used as a reference point for pricing some loans, which may be priced at,
above or below such announced rate. Any change in such rate announced by
Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.
"Property" shall mean with respect to any Person, any real or personal
property, plant, building, facility, structure, equipment or unit, or other
asset (tangible or intangible) owned, leased or operated by such Person.
"Pro Rata Share" shall mean, at any particular time and with respect to
any Lender, a fraction (expressed as a percentage), the numerator of which
shall be the then amount of such Lender's Commitment (or, if the Commitments
have been terminated, such Lender's Commitment as in effect immediately prior
to such termination, after giving effect to any assignments pursuant to
Section 12.01) and the denominator of which shall be the then aggregate
- --------------
amount of all Commitments (or, if the Commitments have been terminated, the
23
================================================================================
aggregate amount of all Commitments as in effect immediately prior to such
termination, after giving effect to any assignments pursuant to Section
-------
12.01).
- ------
"Reference Bank" shall mean Bank of America.
"Register" shall have the meaning ascribed to such term in Section
-------
12.01(c).
- --------
"Regulation A", "Regulation T", "Regulation U" and "Regulation X" shall
mean Regulation A, Regulation T, Regulation U and Regulation X, respectively,
of the Federal Reserve Board as in effect from time to time.
"Reimbursement Obligations" shall mean the reimbursement or repayment
obligations of the Borrower to the Issuing Banks with respect to Letters of
Credit, for amounts paid out thereunder.
"Release" shall mean any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration
from any Property into the environment, including the movement of
Contaminants through or in the air, soil, surface water, groundwater or
Property.
"Remedial Action" shall mean any action required to (i) clean up,
remove, treat or in any other way address Contaminants in the indoor or
outdoor environment; (ii) prevent a Release or threat of Release or minimize
the further Release of Contaminants so they do not migrate or endanger or
threaten to endanger public health or welfare or the indoor or outdoor
environment; or (iii) perform pre-remedial studies and investigations and
post-remedial monitoring and care.
"Rental Expense" shall mean, for any period for ATSC, the Borrower and
its Restricted Subsidiaries, on a consolidated basis, the aggregate base
rental payments to lessors or their assignees by such Persons for such period
under agreements to rent or lease any real property (excluding payments in
respect of Capital Leases) as recorded in accordance with GAAP.
"Reportable Event" shall mean the events described in Section 4043 of
ERISA with respect to which the 30-day notice requirement is not waived.
"Requirements of Law" shall mean, as to any Person, the charter and
by-laws or other organizational or governing documents of such Person, and
any law, rule or regulation, Permit, or determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its
property is subject, including the Securities Act, the Securities Exchange
Act, Regulation T, Regulation U and Regulation X, and any certificate of
occupancy, zoning ordinance, building, environmental or land use requirement
or Permit or occupational safety or health law, rule or regulation.
"Requisite Lenders" shall mean Lenders whose Pro Rata Shares, in the
aggregate, are more than 50%, or after the termination of the Commitments,
represent more than 50% of the outstanding Loans and Letter of Credit
Obligations.
24
================================================================================
"Responsible Officer" shall mean, as to ATSC or the Borrower, the
President, any Executive Vice President, any Senior Vice President, its
Treasurer or its Vice President-Controller.
"Restricted Payment" shall mean (a) any dividend or other distribution,
direct or indirect, on account of any shares of any class of capital stock of
ATSC or the Borrower or any of its Subsidiaries now or hereafter outstanding,
including the Common Stock, except a distribution of stock as part of a stock
split and except a dividend payable solely in shares of that class of stock
or in any junior class of stock to the holders of that class, (b) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of
capital stock of ATSC or the Borrower or any of its Subsidiaries now or
hereafter outstanding, (c) any payment or prepayment of principal of,
premium, if any, or interest on, and any redemption, purchase, retirement or
defeasance of, or sinking fund or similar payment with respect to, the
Convertible Debentures or any consideration paid to any Person for the
purpose of any of the foregoing, and (d) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of capital stock of ATSC or the Borrower or any
of the Borrower's Subsidiaries now or hereafter outstanding.
"Restricted Subsidiary" shall mean any Subsidiary of the Borrower which
is not an Unrestricted Subsidiary. Whether or not a Restricted Subsidiary is
a "wholly-owned Restricted Subsidiary" shall be determined without taking
into account any directors' qualifying shares or similar nominal requirements
under foreign laws.
"Sales Tax Reserve" shall mean, as of any Calculation Date, an amount
equal to 5% of Eligible Accounts Receivable at such Calculation Date.
"S&P" shall mean Standard and Poor's Ratings Services.
"Securities" shall mean any stock, shares, voting trust certificates,
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, but shall not include any evidence of the Obligations.
"Securities Act" shall mean the Securities Act of 1933, as amended to
the date hereof and from time to time hereafter, and any successor statute.
"Securities Exchange Act" shall mean the Securities Exchange Act of
1934, as amended to the date hereof and from time to time hereafter, and any
successor statute.
"Shareholders' Equity" shall mean, as at any date of determination, the
amount which would be set forth under shareholders' equity on a consolidated
balance sheet of ATSC and its Subsidiaries in accordance with GAAP at such
date of determination.
25
================================================================================
"Shrink Reserve" shall mean, as of any Calculation Date, the shrink
reserve for the most recent fiscal month calculated in accordance with the
accounting practices of the Borrower and the Subsidiary Guarantors.
"Standby Letter of Credit" shall mean any Letter of Credit which is not
a Commercial Letter of Credit.
"Subsidiary" shall mean, with respect to any Person, any corporation,
partnership, trust or other entity of which a majority of the stock (or
equivalent ownership or controlling interest) having voting power to elect a
majority of the Board of Directors (if a corporation) or to select the
trustee or equivalent controlling interest is directly or indirectly owned or
controlled by such Person or one or more of the other Subsidiaries of such
Person or any combination thereof; provided, however, that for purposes of
this Agreement the charitable foundation permitted to be established pursuant
to Section 8.02(x) shall not be deemed to be a Subsidiary of the Borrower or
---------------
ATSC.
"Subsidiary Guaranty and Collateral Agreement" shall mean the
Consolidated Amended and Restated Subsidiary Guaranty and Collateral
Agreement dated as of the Effective Date substantially in the form of, and on
the terms set forth in, Exhibit 4.01(a)(vi), as the same may be amended,
--------------------
supplemented or otherwise modified from time to time.
"Subsidiary Guarantor" shall mean any Guarantor (other than ATSC).
"Tangible Net Worth" shall mean, as at any date of determination, the
difference of Shareholders' Equity less all intangible assets, as set forth
on the most recent consolidated balance sheet of ATSC, the Borrower and its
Restricted Subsidiaries in accordance with GAAP at such date of determination.
"Taxes" shall have the meaning ascribed to such term in Section 2.08.
------------
"Termination Date" shall mean the earlier to occur of (a) the Final
Maturity Date and (b) the date of termination of the Commitments pursuant to
Section 10.02(a).
- ----------------
"Termination Event" shall mean (i) a Reportable Event with respect to
any Plan; (ii) the withdrawal of the Borrower or any ERISA Affiliate from a
Benefit Plan during a plan year in which the Borrower or such ERISA Affiliate
was a "substantial employer" as defined in Section 4001(a)(2) of ERISA or the
cessation of operations which results in the termination of employment of 20%
of Benefit Plan participants who are employees of the Borrower and its ERISA
Affiliates; (iii) the imposition of an obligation on the Borrower or any
ERISA Affiliate under Section 4041 of ERISA to provide affected parties
written notice of intent to terminate a Benefit Plan in a distress
termination described in Section 4041(c) of ERISA; (iv) the termination of,
or the institution under ERISA of proceedings to terminate, a Benefit Plan
(including the giving of written notice thereof); (v) any event or condition
which constitutes grounds under Section 4042 of ERISA (excluding Section
4042(a)(4)) for the termination of, or the appointment of a trustee to
administer, any Benefit Plan (including the giving of written notice
thereof); (vi) the partial or complete withdrawal of the Borrower or any
26
================================================================================
ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (vii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not waived,
shall exist with respect to any Plan; (viii) the Borrower or any ERISA
Affiliate has incurred or is likely to incur a liability in connection with
any nonexempt "prohibited transaction" (as defined in Section 406 of ERISA or
Section 4975 of the Code) involving any Plan; (ix) the failure to make a
required contribution to a Benefit Plan if such failure is sufficient to give
rise to a lien under Section 302 (f) of ERISA; or (x) the imposition of any
liability under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.
"Trademark Security Agreement" shall mean the Amended and Restated
Trademark Security Agreement dated as of the Effective Date substantially in
the form of, and on the terms set forth in, Exhibit 4.01(a)(iii), as the same
--------------------
may be amended, supplemented or otherwise modified from time to time.
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Unrestricted Subsidiary" shall mean a Subsidiary of the Borrower which
has been designated as such by resolution duly adopted by the board of
directors of the Borrower, which at the time of such designation does not own
or hold any Securities of ATSC, the Borrower or any Restricted Subsidiary,
provided (a) no Subsidiary of the Borrower shall be (or if already an
Unrestricted Subsidiary shall immediately cease to be) an Unrestricted
Subsidiary if, at any time, ATSC, the Borrower or any other Restricted
Subsidiary of the Borrower shall create, incur, issue, assume, guarantee or
in any other manner whatsoever be or become liable with respect to any Claim
against or any Contractual Obligation or Indebtedness of, such Subsidiary
which is not permitted under Article VIII and (b) ATSC, the Borrower and its
Restricted Subsidiaries shall be deemed to have made an Investment in an
Unrestricted Subsidiary at the time of designation of such Subsidiary as an
"Unrestricted Subsidiary" in an amount equal to the sum of (i) any
Indebtedness owed by such Subsidiary to ATSC, the Borrower and its Restricted
Subsidiaries at such time, (ii) any outstanding Guarantees or Liens created
by ATSC, the Borrower and its Restricted Subsidiaries in favor of or for the
benefit of such Subsidiary and (iii) the total assets of such Subsidiary at
such time as determined on a consolidated basis in accordance with GAAP.
1.03. Computation of Time Periods. In this Agreement, in the
-------------------------------
computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding". Periods of days referred to in this
Agreement shall be counted in calendar days unless Business Days are
expressly prescribed.
1.04. Accounting Terms. For purposes of this Agreement, all accounting
-----------------
terms not otherwise defined herein shall have the meanings assigned to them
in conformity with GAAP.
1.05. Other Definitional Provisions. References to "Articles",
---------------------------------
"Sections", "subsections", "Schedules", "Exhibits" and "the preamble" shall
be to Articles, Sections, subsections, Schedules, Exhibits and the preamble,
27
================================================================================
respectively, of this Agreement unless otherwise specifically provided. The
words "include" and "including" when used herein are not intended to be
exclusive and mean "include, without limitation" and "including, without
limitation."
28
================================================================================
ARTICLE II
AMOUNTS AND TERMS OF LOANS
--------------------------
2.01. THE REVOLVING CREDIT FACILITY.
------------------------------------
(a) Availability. (i) Subject to the terms and conditions set forth
------------
in this Agreement, each Lender hereby severally and not jointly agrees to
make to the Borrower from time to time during the period from the Effective
Date to the Termination Date, revolving loans (each individually, a "Loan"
and, collectively, the "Loans"), in an amount which, together with such
Lender's Pro Rata Share of the outstanding Letters of Credit Obligations,
shall not exceed, in the aggregate at any time outstanding, the lesser of (A)
such Lender's Commitment and (B) such Lender's Pro Rata Share of the
Borrowing Base Amount then in effect; provided that the aggregate principal
amount of all Loans outstanding at any one time shall not exceed the then
Maximum Loan Amount.
(ii) All Loans under this Agreement shall be made by the Lenders
simultaneously and proportionately to their respective Pro Rata Shares,
it being understood that no Lender shall be responsible for any failure
by any other Lender to perform its obligation to make a Loan hereunder
and that the Commitment of any Lender shall not be increased or
decreased without the prior written consent of such Lender as a result
of the failure by any other Lender to perform its obligation to make a
Loan. The failure of any Lender to make available to the
Administrative Agent any Borrowing of the Commitments shall not relieve
any other Lender of its obligation hereunder to make available to the
Administrative Agent such other Lender's Pro Rata Share of any
Borrowing of the Commitments on the date such funds are to be made
available pursuant to the terms of this Agreement.
(iii) Loans may be prepaid pursuant to Section 2.04, and, subject
------------
to the provisions of this Agreement, any amounts so prepaid may be
reborrowed, up to the amount available under this Section 2.01(a) at
----------------
the time of such Borrowing, until the Business Day immediately
preceding the Final Maturity Date. Each Lender's Commitment shall
expire, and each Loan then outstanding shall mature and be repaid by
the Borrower, without further action on the part of the Lenders, on the
Final Maturity Date.
(iv) Loans made on any Funding Date shall be in the aggregate
minimum amount of $1,000,000 and in integral multiples of $1,000,000 in
excess thereof.
(v) Each calendar year, the Borrower shall effect a prepayment
of the outstanding Loans (such amount, a "Cleandown") so as to cause no
Loans to be outstanding for a period of 30 consecutive days (each such
period, a "Cleandown Period"). Within 15 days after the end of any
Cleandown Period, the Borrower shall notify the Administrative Agent
that a Cleandown Period has occurred and the Administrative Agent shall
notify the Lenders.
29
================================================================================
(b) Notice of Borrowing. Whenever the Borrower desires to borrow
--------------------
under this Section 2.01, the Borrower shall deliver to the Administrative
-------------
Agent a Notice of Borrowing (i) no later than 11:00 a.m. (New York time) on
the proposed Funding Date, in the case of a Borrowing of Base Rate Loans, and
(ii) not later than 11:00 a.m. (New York time) at least three Business Days
in advance of the proposed Funding Date, in the case of a Borrowing of
Eurodollar Rate Loans. The Notice of Borrowing shall specify (A) the Funding
Date (which shall be a Business Day), (B) the amount of the proposed
Borrowing, (C) whether the proposed Borrowing will be of Base Rate Loans or
Eurodollar Rate Loans, and (D) in the case of Eurodollar Rate Loans, the
requested Interest Period. In lieu of delivering the above-described Notice
of Borrowing and only with the consent of the Administrative Agent in its
sole discretion at such time, the Borrower may give the Administrative Agent
telephonic notice of any proposed Borrowing by the time required under this
Section 2.01(b); provided that, in the event the Administrative Agent so
- ----------------
consents, such notice shall be confirmed immediately by delivery to the
Administrative Agent of a Notice of Borrowing by facsimile. Any Notice of
Borrowing (or telephonic notice in lieu thereof) pursuant to this Section
-------
2.01(b) shall be irrevocable.
- -------
(c) Making of Loans. Promptly after receipt of a Notice of Borrowing
---------------
under Section 2.01(b) (or telephonic notice in lieu thereof if the
-----------------
Administrative Agent consents to such telephonic notice, immediately
confirmed by facsimile), the Administrative Agent shall notify each Lender by
facsimile or other similar form of teletransmission, of the proposed
Borrowing. Each Lender shall make the amount of its Loan available to the
Administrative Agent at the Administrative Agent's Payment Office in Dollars
and in immediately available funds, not later than (i) 1:00 p.m. (New York
time) on the Funding Date, in the case of a Borrowing of Base Rate Loans and
(ii) 11:00 a.m. (New York time) on the Funding Date, in the case of a
Borrowing of Eurodollar Rate Loans. After the Administrative Agent's receipt
of the proceeds of such Loans, the Administrative Agent shall make the
proceeds of such Loans available to the Borrower on such Funding Date in
Dollars and in immediately available funds to an account of the Borrower,
designated in writing by the Borrower.
(d) Loan Accounts; Notes. The Loans made by each Lender shall be
----------------------
evidenced by one or more loan accounts maintained by the Administrative Agent
and such Lender in the ordinary course of business (each a "Loan Account").
The Loan Accounts or records maintained by the Administrative Agent and each
Lender shall be conclusive absent manifest error of the amount of the Loans
made by the Lenders to the Borrower and the interest and payments thereon.
Any failure so to record or any error in doing so shall not, however, limit
or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Loans. In case of a discrepancy between the
entries in the Administrative Agent's books and any Lender's books, such
Lender's books shall constitute prima facie evidence of the accuracy of the
information so recorded. Notwithstanding the foregoing, the Borrower agrees
that, upon request to the Administrative Agent by any Lender, in order to
evidence such Lender's Loans, the Borrower will execute and deliver to such
Lender a promissory note substantially in the form of Exhibit 2.01(d) (each,
---------------
as amended, supplemented, replaced or otherwise modified from time to time, a
"Note"), with appropriate insertions therein as to payee, date and principal
amount. Each Note shall (i) be dated the Effective Date, (ii) be payable as
provided in Section 2.01(g) and (iii) provide for the payment of interest in
---------------
accordance with Section 2.02.
-------------
30
================================================================================
(e) Termination or Reduction of Commitments. The Borrower shall have
-----------------------------------------
the right, at any time and from time to time, (a) to terminate the
Commitments in whole, without premium or penalty, if no Loans or Letter of
Credit Obligations are then outstanding, or (b) to permanently reduce in
part, without premium or penalty, the Commitments by an amount of up to (i)
the then maximum amount of the Commitments, less (ii) the aggregate principal
amount of Loans and Letter of Credit Obligations then outstanding, provided
that the Borrower shall pay any funding losses, breakfunding fees and related
expenses in connection with any prepayment made in respect thereof. The
Borrower shall give not less than three Business Days' prior irrevocable
notice thereof (not later than 11:00 a.m. (New York time) on such day) to the
Administrative Agent designating the date (which shall be a Business Day) of
such termination or reduction and the amount of any partial reduction.
Promptly after receipt of a notice of such termination or reduction, the
Administrative Agent shall notify each Lender of the proposed termination or
reduction. Such termination or partial reduction of the Commitments shall be
effective on the date specified in the Borrower's notice and shall reduce the
Commitment of each Lender proportionately in accordance with its Pro Rata
Share. Any such partial reduction of the Commitments shall be in an
aggregate minimum amount of $2,000,000 and integral multiples of $1,000,000
in excess of that amount.
(f) Repayment of Loans. The Borrower hereby promises to pay on the
-------------------
Final Maturity Date the then outstanding principal amount of Loans.
2.02. Interest on the Loans.
---------------------
(a) Rate of Interest. The Borrower promises to pay interest on the
-----------------
unpaid principal amount of all Loans from the date made until paid in full at
a fluctuating rate determined from time to time by reference to the Base Rate
or the Eurodollar Rate. The applicable basis for determining the rate of
interest shall be selected by the Borrower at the time a Notice of Borrowing
is given by the Borrower pursuant to Section 2.01(b) or at the time a Notice
----------------
of Conversion/Continuation is delivered by the Borrower pursuant to Section
--------
2.02(c); provided that the Borrower may not select the Eurodollar Rate as the
- -------
applicable basis for determining the rate of interest on a Loan if at the
time of such selection an Event of Default has occurred and is continuing.
If on any day a Loan is outstanding with respect to which notice has not been
delivered to the Administrative Agent in accordance with the terms of this
Agreement specifying the basis for determining the rate of interest, then for
each such day such Loan shall be a Base Rate Loan. The Loans shall bear
interest, subject to Section 2.02(d), as follows:
---------------
Loans shall bear interest from the Effective Date until May 5, 2001 at
a rate per annum for each day which is, (A) in the case of Base Rate Loans,
equal to the Base Rate plus 0.75% and (B) in the case of Eurodollar Rate
Loans, equal to the Eurodollar Rate determined for the applicable Interest
Period plus 1.75%; thereafter, Loans shall bear interest as follows:
(1) in the case of Base Rate Loans, then at a rate per annum for each
day equal to the sum of (x) the Base Rate as in effect from time to time as
interest accrues and (y) the applicable margin set forth below opposite the
Pricing Ratio in effect on such day:
31
================================================================================
Pricing Ratio Applicable Margin
Level I Status 0.25%
Level II Status 0.50%
Level III Status 0.75%
Level IV Status 1.00%
(2) in the case of Eurodollar Rate Loans, then at a rate per annum for
each day equal to the sum of (x) the Eurodollar Rate determined for the
applicable Interest Period and (y) the applicable margin set forth below
opposite the Pricing Ratio in effect on such day:
Pricing Ratio Applicable Margin
Level I Status 1.25%
Level II Status 1.50%
Level III Status 1.75%
Level IV Status 2.00%
(b) Interest Payments. Subject to Section 2.02(d), (i) interest
------------------ ----------------
accrued on each Base Rate Loan shall be payable in arrears (A) on the
fifteenth day of each January, April, July and October, for the three-month
period ending on such date, commencing on the first such day following the
making of such Base Rate Loan, and (B) at the Termination Date and (ii)
interest accrued on each Eurodollar Rate Loan shall be payable in arrears on
the earlier of (A) each Interest Payment Date applicable to such Eurodollar
Rate Loan, (B) upon the prepayment thereof on the amount prepaid and (C) at
the Termination Date.
(c) Conversion or Continuation. (i) Subject to the provisions of
-----------------------------
Sections 2.06 and 2.07, the Borrower shall have the option (A) to convert at
- -------------- ----
any time all or any part of outstanding Loans which comprise part of the same
Borrowing and which, in the aggregate, equal $1,000,000 or an integral
multiple of $1,000,000 in excess of such amount from Base Rate Loans to
Eurodollar Rate Loans; or (B) to convert all or any part of outstanding Loans
which, in the aggregate, equal $1,000,000 or an integral multiple of
$1,000,000 in excess of that amount from Eurodollar Rate Loans to Base Rate
Loans on the expiration date of any Interest Period applicable thereto,
provided the remaining amount of Eurodollar Rate Loans with the same Interest
Period shall not be less than $1,000,000; or (C) upon the expiration of any
Interest Period applicable to a Borrowing of Eurodollar Rate Loans, to
continue all or any portion of such Loans equal to $1,000,000 or an integral
multiple of $1,000,000 in excess of such amount as Eurodollar Rate Loans, and
the succeeding Interest Period of such continued Loans shall commence on the
expiration date of the Interest Period applicable thereto; provided that no
outstanding Loan may be continued as, or be converted into, a Eurodollar Rate
Loan when any Event of Default has occurred and is continuing.
(ii) In the event the Borrower shall elect to convert or continue a
Loan under this Section 2.02(c), the Borrower shall deliver an irrevocable
----------------
Notice of Conversion/Continuation to the Administrative Agent no later than
11:00 a.m. (New York time) at least three Business Days in advance of the
proposed conversion date or date of continuation in the case of Eurodollar
32
================================================================================
Rate Loans and on the conversion or continuation date in the case of Base
Rate Loans. A Notice of Conversion/Continuation shall specify (w) the
proposed conversion/continuation date (which shall be a Business Day), (x)
the amount of the Loan to be converted/continued, (y) the nature of the
proposed conversion/continuation, and (z) in the case of a conversion to, or
a continuation of, a Eurodollar Rate Loan, the requested Interest Period. In
lieu of delivering the above-described Notice of Conversion/Continuation, the
Borrower may give the Administrative Agent telephonic notice of any proposed
conversion/continuation by the time required under this Section 2.02(c);
----------------
provided that such notice shall be confirmed immediately by delivery to the
Administrative Agent by facsimile of a Notice of Conversion/Continuation. No
failure of the Borrower to confirm any telephonic notice by facsimile shall
impair or in any way limit the Borrower's obligations with respect to such
Loans. Promptly after receipt of a Notice of Conversion/Continuation under
this Section 2.02(c) (or telephonic notice in lieu thereof immediately
---------------
confirmed by facsimile), the Administrative Agent shall notify each Lender of
the proposed conversion/continuation.
(iii) Any Notice of Conversion/Continuation for conversion to, or
continuation of, a Loan (or telephonic notice in lieu thereof) shall be
irrevocable and the Borrower shall be bound to convert or continue in
accordance therewith.
(d) Default Interest. Notwithstanding the rates of interest
------------------
specified in Section 2.02(a) and the payment dates specified in Section
--------------- -------
2.02(b), effective immediately upon the occurrence of any Event of Default of
- -------
the type specified in Section 10.01(a) or upon acceleration of maturity
----------------
pursuant to Section 10.02(a) and for so long thereafter as any such Event of
-----------------
Default or acceleration shall be continuing, the principal balance of all
Loans and Reimbursement Obligations then due and payable (including all
amounts due and payable pursuant to Section 10.02(a)) and any interest
-----------------
payments on the Loans not paid when due, shall bear interest payable upon
demand at a rate which is 2% per annum in excess of the rate of interest
otherwise payable under this Agreement.
(e) Computation of Interest. Interest on Base Rate Loans, Eurodollar
-----------------------
Rate Loans and Reimbursement Obligations shall be computed on the basis of
the actual number of days elapsed in the period during which interest accrues
and a year of 360 days (except that a year of 365 or 366 days, as applicable,
shall be used if the Base Rate is derived from the Prime Rate), as
applicable. In computing interest on any Loan, the date of the making of the
Loan or the first day of an Interest Period, as the case may be, shall be
included and the date of payment or the expiration date of an Interest
Period, 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.
(f) Changes; Legal Restrictions. In the event that after the date
-----------------------------
hereof (a) the adoption of or any change in any law, treaty, rule,
regulation, guideline or determination of a Governmental Authority or any
change in the interpretation or application thereof by a Governmental
Authority, or (b) compliance by any Lender with any request or directive
(whether or not having the force of law and whether or not the failure to
comply therewith would be unlawful) from any central bank or other
Governmental Authority or quasi-governmental authority exercising
jurisdiction, power or control over banks or financial institutions
33
================================================================================
generally, does impose, modify, or hold applicable, in the determination of a
Lender, any reserve, special deposit, compulsory loan, FDIC insurance,
capital allocation or similar requirement against assets held by, or deposits
or other liabilities (including those pertaining to Letters of Credit) in or
for the account of, advances or loans by, Commitments made, or other credit
extended by, or any other acquisition of funds by, a Lender or any Applicable
Lending Office of such Lender (except (a) with respect to Base Rate Loans, so
long as the Base Rate in effect at the time is determined under clause (a) in
the definition of "Base Rate", (b) with respect to Base Rate Loans, to the
extent that the reserve and FDIC insurance requirements are reflected in the
definition of "Base Rate" and (c) with respect to Eurodollar Rate Loans, to
the extent that the reserve requirements are reflected in the definition of
"Eurodollar Rate"), and the result of any of the foregoing is to increase the
cost to such Lender of making, renewing or maintaining the Loans or its
Commitment to the Borrower or issuing to the Borrower any Letter of Credit or
to reduce any amount receivable hereunder or thereunder; then, in any such
case, the Borrower shall upon written notice from and demand by that Lender
pay to such Lender, within 15 Business Days of the date specified in such
notice and demand, such amount or amounts (based upon a reasonable allocation
thereof by such Lender to the financing transactions contemplated by this
Agreement and affected by this Section 2.02(f)) as may be necessary to
----------------
compensate that Lender for any such additional cost incurred or reduced
amount received. Such Lender shall deliver to the Borrower a written
statement of the costs or reductions claimed and the basis therefor, and the
allocation made by such Lender of such costs and reductions, which statement
shall, in the absence of manifest error, be conclusive. If a Lender
subsequently recovers from another Person any amount previously paid by the
Borrower pursuant to this Section 2.02(f), such Lender shall, within 30 days
---------------
after receipt of such refund and to the extent permitted by applicable law,
pay to the Borrower, without interest, the amount of any such recovery.
2.03. Fees.
----
(a) Fees to Bank of America. The Borrower shall pay to Bank of
---------------------------
America, for its own account and/or for the account of the Arranger, fees in
the amounts set forth in the Fee Letter, payable on the Effective Date.
Except as contemplated by the Fee Letter, no Person other than Bank of
America and the Arranger shall have any interest in such fees.
(b) Commitment Fee. (i) The Borrower shall pay to the
-----------------
Administrative Agent, for the account of each Lender, in accordance with
their Pro Rata Shares, a commitment fee accruing from and after the Effective
Date to the Termination Date, calculated on the basis of a year of 360 days,
upon the difference between (A) the Commitments in effect from time to time
and (B) the Loans and Letter of Credit Obligations outstanding from time to
time. All such commitment fees payable under this paragraph shall be payable
in arrears on the fifteenth day of each January, April, July and October for
the three-month period ending on such date, beginning after the Effective
Date and in addition on the Termination Date.
(ii) Commitment fees shall accrue from the Effective Date until May 5,
2001 at the rate of 0.425% per annum; thereafter, commitment fees shall
accrue for each day at a rate per annum equal to the percentage per annum set
forth below opposite the Pricing Ratio in effect on such day:
34
================================================================================
Pricing Ratio Commitment Fee
Level I Status 0.300%
Level II Status 0.375%
Level III Status 0.425%
Level IV Status 0.500%
(c) Agency Fee. The Borrower shall pay to the Administrative Agent,
----------
solely for its own account, the agency fee set forth in the Fee Letter in the
amount per annum agreed between the Administrative Agent and the Borrower
payable in advance on the Effective Date and each one-year anniversary of the
Effective Date. No Person other than the Administrative Agent shall have any
interest in such fee.
(d) Letter of Credit Fees. The Borrower shall pay to the
--------------------------
Administrative Agent, for the account of the Lenders, or to the relevant
Issuing Bank, as applicable, a fee for each Letter of Credit issued on behalf
of the Borrower (the "Letter of Credit Fee"), determined as set forth in
Section 3.08(a) and (b).
- ----------------------
(e) Payment of Fees. The fees described in this Section 2.03
----------------- -------------
represent compensation for services rendered and to be rendered separate and
apart from the lending of money or the provision of credit and do not
constitute compensation for the use, detention or forbearance of money, and
the obligation of the Borrower to pay each fee described herein shall be in
addition to, and not in lieu of, the obligation of the Borrower to pay
interest, other fees and expenses otherwise described in this Agreement.
Fees and expenses shall be payable when due in immediately available funds.
All fees and expenses shall be nonrefundable when paid. All fees and
expenses specified or referred to in this Agreement due to the Administrative
Agent, the Issuing Banks or a Lender, including those referred to in this
Section 2.03 and in Section 12.03, shall constitute Obligations and shall be
- ------------ -------------
secured by all the Collateral. All fees described in this Section 2.03 which
------------
are expressed as a per annum charge shall be calculated on the basis of the
actual number of days elapsed in a 360-day year.
2.04. Voluntary and Mandatory Prepayments. (a) The Borrower may, (i)
--------------------------------------
upon written or telephonic irrevocable notice for any Base Rate Loan on the
proposed prepayment date, or upon not less than three Business Day's prior
written or telephonic notice for any Eurodollar Rate Loan (in each case not
later than 11:00 a.m. (New York time) on the date such notice is given), and
if made by telephone, confirmed immediately by facsimile to the
Administrative Agent (which notice the Administrative Agent shall promptly
transmit by facsimile or telephone to each Lender), at any time and from time
to time, prepay any Loan in whole or in part, without premium or penalty, in
an aggregate minimum amount of $1,000,000, and integral multiples of
$1,000,000 in excess of such amounts; provided that the Borrower may prepay
such Loans in full without regard to such minimum amount; and provided,
further, that if the Borrower prepays any Eurodollar Rate Loan on a date
other than the expiration date of the Interest Period applicable thereto, the
Borrower shall pay to the Administrative Agent the amounts described in
Section 2.07(d). Any notice of prepayment given to the Administrative Agent
- ---------------
35
================================================================================
under this Section 2.04(a) shall specify the date of prepayment and the
----------------
aggregate principal amount of the prepayment. If a notice of prepayment has
been delivered as provided herein, such notice shall be irrevocable and the
principal amount of the Loans specified in such notice shall become due and
payable on the prepayment date specified in such notice.
(b) If at any time the sum of (i) the aggregate principal amount of
Loans outstanding at such time plus (ii) the Letter of Credit Obligations at
such time exceed the Borrowing Base Amount at such time, the Borrower shall,
without notice or demand, immediately repay Loans in an aggregate principal
amount equal to the lesser of (x) the amount of such excess and (y) the
aggregate principal amount of Loans then outstanding, in the case of
Eurodollar Rate Loans, together with interest accrued to the date of such
payment or prepayment on the principal so prepaid and any amounts payable
under Section 2.07(d) in connection therewith. In the case of Base Rate
---------------
Loans, interest shall be payable at the next Interest Payment Date. To the
extent that after giving effect to any prepayment of Loans required by this
Section 2.04(b), the sum of (i) the aggregate principal amount of Loans
- ----------------
outstanding at such time plus (ii) the Letter of Credit Obligations at such
time exceed the Borrowing Base Amount at such time, the Borrower shall,
without notice or demand, immediately deposit in a Cash Collateral Account
upon terms reasonably satisfactory to the Administrative Agent an amount
equal to the lesser of (i) the Letter of Credit Obligations at such time and
(ii) the amount of such remaining excess. The Administrative Agent shall
apply any cash deposited in the Cash Collateral Account (to the extent
thereof) to pay any Reimbursement Obligations which become due thereafter,
provided that the Administrative Agent shall release to the Borrower from
time to time such portion of the amount on deposit in the Cash Collateral
Account which is equal to the amount by which the sum of (A) Borrowing Base
Amount at such time plus (B) the amount on deposit in the Cash Collateral
Account at such time exceeds the sum of (i) the aggregate principal amount of
Loans outstanding at such time plus (ii) the Letter of Credit Obligations at
such time. "Cash Collateral Account" means an account established by the
Borrower with the Administrative Agent and over which the Administrative
Agent shall have exclusive dominion and control, including the right of
withdrawal for application in accordance with this Section 2.04(b). The
---------------
Borrower shall also prepay the Loans to the extent required to comply with
Section 2.01(a)(v).
- -----------------
2.05. Payments.
--------
(a) Manner and Time of Payment. (i) All payments of principal,
-----------------------------
interest, Reimbursement Obligations and fees hereunder or any Letter of
Credit payable to the Lenders shall be made without condition, reservation of
right or deduction for any counterclaim, defense, recoupment or setoff, in
Dollars and in immediately available funds, delivered to the Administrative
Agent at the Administrative Agent's Payment Office not later than 1:00 p.m.
(New York time) on the date due; and funds received by the Administrative
Agent after that time and date shall be deemed to have been paid and received
by the Administrative Agent on the next succeeding Business Day. Payments
actually received by the Administrative Agent for the account of the Lenders
shall be paid to them promptly in like funds after receipt thereof by the
Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
36
================================================================================
Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date, and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each Lender
on such due date an amount equal to the amount then due such Lender. If and
to the extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand the excess of the amount distributed to such Lender over
the amount, if any, paid by the Borrower for the account of such Lender,
together with interest thereon at the Federal Funds Rate, for each day from
the date such amount is distributed to such Lender until the date such Lender
repays such amount to the Administrative Agent; provided, however, that if
any Lender shall fail to repay such amount within three Business Days after
demand therefor, such Lender shall, from and after such third Business Day
until payment is made to the Administrative Agent, pay interest thereon at a
rate per annum equal to the Base Rate.
A notice of the Administrative Agent to any Lender with respect to any amount
owing under this subsection (a) shall be conclusive, absent manifest error.
(b) Apportionment of Payments. So long as there does not exist an
---------------------------
Event of Default, all payments of principal and interest in respect of
outstanding Loans, all payments of fees constituting Obligations, and all
payments in respect of any other Obligations shall be allocated among such of
the Lenders as are entitled thereto, in proportion to their respective Pro
Rata Shares or otherwise as provided herein. After the occurrence and during
the continuance of an Event of Default, and after notice by the
Administrative Agent to the Borrower that payments and proceeds shall be so
applied, all payments remitted to the Administrative Agent and all amounts
and proceeds of Collateral received by the Administrative Agent shall be
applied, subject to the provisions of this Agreement, (i) first, to pay
Obligations in respect of any fees or indemnities then due to the
Administrative Agent, the Issuing Banks and the Lenders; (ii) second, to pay
Obligations in respect of expense reimbursements then due under Section
-------
12.03; (iii) third, to pay or prepay principal of and interest on any
- -----
outstanding Reimbursement Obligations and Loans, and to pay (or to the extent
such Obligations are contingent, prepay or provide cash collateral in respect
of) Letter of Credit Obligations; provided that if sufficient funds are not
available to fund all payments to be made to the holders of the Obligations
described in this clause (iii), the available funds shall be allocated to the
payment of such Obligations ratably, based on the proportion of each such
holder's interest in the aggregate outstanding Loans, Reimbursement
Obligations and other Letter of Credit Obligations (in each instance whether
or not due); and provided, further, that matured and, to the extent permitted
by law, unmatured interest-bearing Obligations shall, in any event, be paid
prior to prepayment or provision of cash collateral for contingent Letter of
Credit Obligations; (iv) fourth, to the ratable payment of all other
Obligations then due and payable for expense reimbursements; (v) fifth, to
pay Obligations then due and payable in respect of the Interest Rate
Contracts, if any; and (vi) sixth, to the ratable payment of all other
Obligations due to any and all holders of Obligations.
The Administrative Agent shall promptly distribute to each Lender at
its primary address set forth in Schedule 1.01(a), or at such other address
-----------------
as a Lender may request in writing, such funds as it may be entitled to
receive or as may be shown due to it in the Administrative Agent's Loan
Account, provided that the Administrative Agent shall in any event not be
bound to inquire into or determine the validity, scope or priority of any
37
================================================================================
interest or entitlement of any Lender or any other holder of Obligations and
may suspend all payments or seek appropriate relief (including instructions
from the Requisite Lenders or an action in the nature of interpleader) in the
event of any doubt or dispute as to any apportionment or distribution
contemplated hereby. The order of priority herein is set forth solely to
determine the rights and priorities of the holders of Obligations as among
themselves and may at any time or from time to time be changed by the Lenders
as they may elect, in writing in accordance with Section 12.08 (except that
-------------
no amendment shall require prepayment or provision of cash collateral for
contingent Letter of Credit Obligations unless (as provided in clause (iii)
of Section 2.05(b)) matured and certain interest-bearing unmatured
-----------------
Obligations shall have been paid), without necessity of notice to or consent
of or approval by the Borrower or any other Person.
(c) Payments on Non-Business Days. Whenever any payment to be made
-------------------------------
by the Borrower hereunder shall be stated to be due on a day which is not a
Business Day, payments 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 and of any of the fees specified in Section 2.03, as the
------------
case may be.
(d) Payments by Lenders to the Administrative Agent. Unless the
----------------------------------------------------
Administrative Agent shall have been notified by any Lender prior to any
Funding Date that such Lender does not intend to make available to the
Administrative Agent such Lender's Loan on such Funding Date (except that in
the case of Base Rate Loans, the Administrative Agent shall have been so
notified no later than 1:00 p.m. (New York time) on the Funding Date), the
Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on such Funding Date and the
Administrative Agent in its sole discretion may, but shall not be obligated
to, make available to the Borrower a corresponding amount on such Funding
Date. If such corresponding amount is not in fact made available to the
Administrative Agent by such Lender on or prior to a Funding Date, such
Lender agrees to pay and the Borrower agrees to repay severally to the
Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is paid or repaid to the
Administrative Agent, at (A) in the case of such Lender, the Federal Funds
Rate for the first three Business Days and thereafter at the Base Rate, and
(B) in the case of the Borrower, the interest rate applicable at the time to
a Borrowing of Base Rate Loans made on such Funding Date. If such Lender
shall pay to the Administrative Agent such corresponding amount, such amount
so paid shall constitute such Lender's Loan, and if both such Lender and the
Borrower shall have paid and repaid, respectively, such corresponding amount,
the Administrative Agent shall promptly pay over to the Borrower such
corresponding amount in same day funds, but the Borrower shall remain
obligated for all interest thereon. Nothing in this Section 2.05(d) shall be
---------------
deemed to relieve any Lender of its obligation hereunder to make its Loan on
any Funding Date. Notwithstanding any provision of this Agreement to the
contrary, the Administrative Agent may apply all funds and proceeds of
Collateral available for the payment of any Obligations first to repay any
amount owing by any Lender to the Administrative Agent as a result of such
Lender's failure to fund its Loan as required hereunder.
2.06. Interest Periods. By giving notice as set forth in Sections
--------
2.01(b) or 2.02(c)(ii) with respect to a Eurodollar Borrowing of, conversion
- ------- -----------
into or continuation of Eurodollar Rate Loans, the Borrower shall have the
38
================================================================================
option, subject to the other provisions of this Section 2.06 and Section
------------- -------
2.07, to specify an interest period (each an "Interest Period") to apply to
- ----
the Borrowing described in such notice, which Interest Period shall be either
a 1-, 2-, 3-, or 6-month period. The determination of Interest Periods shall
be subject to the following provisions:
(a) In the case of immediately successive Interest Periods, each
successive Interest Period shall commence on the day on which the next
preceding Interest Period expires;
(b) If any Interest Period would otherwise expire on a day which is
not a Business Day, the Interest Period shall be extended to expire on the
next succeeding Business Day; provided that if any such Interest Period would
otherwise expire on a day which is not a Business Day and no further Business
Day occurs in that month, that Interest Period shall expire on the
immediately preceding Business Day;
(c) The Borrower may not select an Interest Period in respect of
Loans which terminates later than the Final Maturity Date; and
(d) Without the prior written consent of the Administrative Agent and
the Requisite Lenders, there shall be no more than five Interest Periods
under this Agreement at any time.
2.07. Special Provisions Governing Eurodollar Rate Loans.
-----------------------------------------------------------------
Notwithstanding other provisions of this Agreement, the following provisions
shall govern with respect to Eurodollar Rate Loans as to the matters covered:
(a) Determination of Interest Rate. As soon as practicable but in no
-------------------------------
event later than two Business Days prior to the Funding Date or date of
conversion or continuation, the Administrative Agent shall determine (which
determination shall, absent manifest error, be presumptively correct) the
interest rate which shall apply to the Eurodollar Rate Loans for which an
interest rate is then being determined for the applicable Interest Period and
shall promptly give notice thereof (in writing or by telephone confirmed in
writing) to the Borrower and to each Lender.
(b) Interest Rate Unascertainable, Inadequate or Unfair. With
----------------------------------------------------------
respect to any Interest Period, if (i) the Reference Bank is not offering
deposits in Dollars (in the applicable amounts) in the London interbank
Eurodollar market for such Interest Period, or (ii) the Administrative Agent
reasonably determines that adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in the
definition of Eurodollar Rate, for any reason other than the failure of the
Reference Bank to offer deposits in Dollars in the relevant market, then the
Administrative Agent shall forthwith give notice thereof to the Borrower,
whereupon until the Administrative Agent has determined that the
circumstances giving rise to such suspension no longer exist, (a) the right
of the Borrower to elect to have Loans bear interest based upon the
Eurodollar Rate, shall be suspended, and (b) each outstanding Eurodollar Rate
Loan, shall be converted into a Base Rate Loan or a Eurodollar Rate Loan not
covered by the notice described above (as may be designated by the Borrower)
on the last day of the then current Interest Period therefor, notwithstanding
any prior election by the Borrower to the contrary.
39
================================================================================
(c) Illegality. (i) In the event that on any date any Lender shall
----------
have determined (which determination shall, in the absence of manifest error,
be final and conclusive and binding upon all parties) that the making or
continuation of any Eurodollar Rate Loan has become unlawful by compliance by
that Lender in good faith with any law, governmental rule, regulation or
order of any Governmental Authority (whether or not having the force of law
and whether or not failure to comply therewith would be unlawful), then, and
in any such event, such Lender shall promptly give notice (by facsimile or by
telephone promptly confirmed in writing) to the Borrower and the
Administrative Agent of that determination and the reasons therefor.
(ii) Upon the giving of the notice referred to in Section 2.07(c)(i),
------------------
(A) the Borrower's right to request of such Lender and such Lender's
obligation to make Eurodollar Rate Loans shall be immediately suspended, and
such Lender shall make a Loan, as part of any requested Borrowing of
Eurodollar Rate Loans, as a Base Rate Loan or as a Eurodollar Rate Loan not
covered by the notice described in Section 2.07(c)(i) (as designated by the
-------------------
Borrower), which Base Rate Loan or Eurodollar Rate Loan shall, for all
purposes, be considesred a part of such Borrowing, and (B) if the affected
Eurodollar Rate Loan or Loans are then outstanding, the Borrower shall
immediately (or, if permitted by applicable law, no later than the date
permitted thereby, upon at least one Business Day's written notice to the
Administrative Agent and the affected Lender) convert each such Loan into a
Base Rate Loan or a Eurodollar Rate Loan not covered by such notice. If at
any time notice is given under Section 2.07(c)(i) by one or more Lenders, but
-----------------
not by all of them, the provisions of this Section 2.07(c)(ii) shall apply
-------------------
only in favor of the Lenders which gave such notice.
(iii) In the event that a Lender determines at any time following its
giving of a notice referred to in Section 2.07(c)(i) that such Lender may
-------------------
lawfully make Eurodollar Rate Loans of the type(s) referred to in such
notice, such Lender shall promptly give notice (by facsimile or by telephone
promptly confirmed in writing) to the Borrower and the Administrative Agent
of that determination, whereupon the Borrower's right to request of such
Lender and such Lender's obligation to make Eurodollar Rate Loans of such
type(s) shall be restored.
(d) Compensation. Upon demand of any Lender (with a copy to the
-------------
Administrative Agent) from time to time, the Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost
or expense incurred by such Lender as a result of:
(i) any continuation, conversion, payment or prepayment of
(ii) any Loan other than a Base Rate Loan on a day other than the last day
of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or
otherwise); or
(iii) any failure by the Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow,
continue or convert any Loan other than a Base Rate Loan on
the date or in the amount notified by the Borrower.
Such Lender shall deliver to the Borrower, with a copy to the
Administrative Agent, as a condition to the Borrower's obligation to
compensate such Lender, a written statement as to such losses, expenses and
40
================================================================================
liabilities, which statement, in the absence of manifest error, shall be
conclusive as to such amounts.
(e) Quotation of Eurodollar Rate. If the Reference Bank shall have
-----------------------------
failed to provide offered quotations to the Administrative Agent in
accordance with the definition of "Eurodollar Rate", the Administrative Agent
shall give the Borrower and each Lender prompt notice thereof and the Loans
requested shall be made or continued as, or converted into, Base Rate Loans.
(f) Booking of Eurodollar Rate Loans. Any Lender may make, carry or
---------------------------------
transfer Eurodollar Rate Loans at, to, or for the account of, any of its
branch offices, agencies or the office of an Affiliate of that Lender;
provided that no such Lender shall be entitled to receive any greater amount
under Section 2.02(f) or Section 2.08 as a result of the transfer of any such
---------------- -------------
Loan than such Lender would be entitled to immediately prior thereto unless
(i) such transfer occurred at a time when circumstances giving rise to the
claim for such greater amount did not exist and were not reasonably
foreseeable by such Lender, or (ii) such claim would have arisen even if such
transfer had not occurred.
2.08. Taxes.
------
(a) Any and all payments by the Borrower hereunder shall be made, in
accordance with Section 2.05, free and clear of and without deduction for any
------------
and all present or future taxes, levies, imposts, deductions, charges, or
withholdings, and all liabilities with respect thereto but excluding, in the
case of each Lender and the Administrative Agent, taxes imposed on its net
income, branch profits taxes and franchise taxes imposed on it by the United
States of America or any Governmental Authority (including Puerto Rico) and,
in the case of each Lender, taxes imposed on its income and franchise taxes
imposed on it as a result of making any Loan, by the Governmental Authority
of the jurisdiction of such Lender's Applicable Lending Office (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings, and
liabilities which a Lender determines to be applicable to this Agreement, the
Commitments, the Loans or the Letters of Credit being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder to any Lender or the
Administrative Agent, (i) so long as such Lender or the Administrative Agent
is in compliance with Section 2.08(e), the sum payable shall be increased as
----------------
may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.08)
-------------
such Lender or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions, and (iii) the Borrower
shall pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law. If a withholding tax of
the United States of America or any other Governmental Authority shall be or
become applicable (y) after the date of this Agreement, to such payments by
the Borrower made to the Applicable Lending Office or any other office that a
Lender specified on Schedule 1.01(a) to this Agreement may claim as its
Applicable Lending Office or (z) after such Lender's selection and
designation of any other Applicable Lending Office, to such payments made to
such other Applicable Lending Office, such Lender shall, in good faith, use
its reasonable best efforts to make, fund and maintain its Loans, and to
make, fund and maintain its obligations under the Letters of Credit, through
41
================================================================================
another Applicable Lending Office of such Lender in another jurisdiction so
as to reduce the Borrower's liability hereunder, if the making, funding or
maintenance of such Loans or obligations under the Letters of Credit through
such other Applicable Lending Office of such Lender does not, in the judgment
of such Lender, otherwise materially adversely affect such Loans, obligations
under the Letters of Credit or such Lender.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges, or
similar levies which arise from any payment made hereunder, from the issuance
of Letters of Credit hereunder, or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement, the
Commitments, the Loans or the Letters of Credit (hereinafter referred to as
"Other Taxes").
(c) The Borrower will indemnify each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed by any Governmental Authority on amounts payable under
this Section 2.08) paid by such Lender or the Administrative Agent (as the
--------------
case may be) and any liability (including penalties, interest, and expenses)
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted by such Governmental Authority.
This indemnification shall be made within 30 days after the date such Lender
or the Administrative Agent (as the case may be) makes written demand
therefor. A certificate as to any additional amount payable to any Lender
under this Section 2.08 submitted to such Borrower and the Administrative
-------------
Agent (if a Lender is so submitting) by such Lender or the Administrative
Agent shall show in reasonable detail the amount payable and the calculations
used to determine such amount and shall, absent manifest error, be final,
conclusive and binding upon all parties hereto. Each Lender agrees that, to
the extent that such Lender is entitled to claim an exemption in respect of
all or a portion of any Taxes which are otherwise required to be paid or
deducted or withheld pursuant to this Section 2.08 in respect of any payments
under this Agreement such Lender shall within a reasonable time after
receiving written request by the Borrower provide the Borrower with such
certificates as such Lender in good faith may deem appropriate to obtain the
benefits of such exemption.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes by the Borrower, the Borrower will furnish to the Administrative Agent,
at its address referred to in Section 12.10, the original or a certified copy
-------------
of a receipt evidencing payment thereof.
(e) Each Lender (or transferee of any Lender) that is not a United
States person (as defined in Section 7701(a)(30) of the Code) (a "Non-U.S.
Lender") shall deliver to the Borrower and the Administrative Agent (or in
the case of a participant, to the Lender from which the related participation
shall have been purchased) two copies of U.S. Internal Revenue Service Form
1001, Form 4224 or any subsequent versions thereof or successors thereto, or,
in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a Form W-8, or any subsequent versions
thereof or successors thereto (and, if such Non-U.S. Lender delivers a Form
W-8, or any subsequent versions thereof or successors thereto, an annual
certificate representing that such Non-U.S. Lender (i) is not a "bank" for
purposes of Section 881(c) of the Code (and is not subject to regulatory or
other legal requirements as a bank in any jurisdiction, and has not been
treated as a bank in any filing with or submission made to any Governmental
42
================================================================================
Authority or rating agency), (ii) is not a 10-percent shareholder (within the
meaning of Section 871(h)(3)(B) of the Code) of the Borrower and (iii) is not
a controlled foreign corporation related to the Borrower (within the meaning
of Section 864(d)(4) of the Code)), properly completed and duly executed by
such Non-U.S. Lender claiming complete exemption from U.S. federal
withholding tax on all payments by the Borrower under this Agreement and the
other Loan Documents, along with such other additional forms as the Borrower
or the Administrative Agent may reasonably request to establish the
availability of such exemption. Such forms shall be delivered by each
Non-U.S. Lender on or before the date it becomes a party to this Agreement
(or, in the case of any participant, on or before the date such participant
purchases the related participation) and on or before the date, if any, such
Non-U.S. Lender changes its Applicable Lending Office by designating a
different lending office (a "New Lending Office"). In addition, each
Non-U.S. Lender shall timely deliver such forms (or any other form of
certification adopted by U.S. taxing authorities for such purpose) promptly
upon the obsolescence or invalidity of any form previously delivered by such
Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower at
any time it determines that it is no longer in a position to provide any
previously delivered certificate to the Borrower (or any other form of
certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of Section 2.08, a Non-U.S. Lender shall
------------
not be required to deliver any form pursuant to this Section 2.08(e) that
----------------
such Non-U.S. Lender is not legally able to deliver.
(f) The Borrower shall not be required to indemnify any Non-U.S.
Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect
of United States federal withholding tax pursuant to paragraph (a) or (c)
above to the extent that the obligation to withhold amounts with respect to
United States federal withholding tax existed on the date such Non-U.S.
Lender became a party to this Agreement (or, in the case of a participant, on
the date such participant became a transferee of a participation interest
hereunder) or, with respect to payments to a New Lending Office, the date
such Non-U.S. Lender designated such New Lending Office with respect to a
Loan.
(g) If the IRS or any other Governmental Authority of the United
States or of any other jurisdiction asserts a claim that the Administrative
Agent or the Borrower did not properly withhold tax from amounts paid to or
for the account of any Lender (because the appropriate form was not
delivered, was not properly executed, or because such Lender failed to notify
the Administrative Agent of a change in circumstances which rendered the
exemption from withholding tax ineffective or for any other reason), such
Lender shall indemnify the Administrative Agent and/or the Borrower, as
applicable, fully for all amounts paid, directly or indirectly, by the
Administrative Agent and/or the Borrower, as applicable, as tax or otherwise,
including penalties and interest, and including any taxes imposed by any
jurisdiction on the amounts payable to the Administrative Agent or the
Borrower, as applicable, under this Section 2.08, together with all costs and
expenses, including, legal fees, incurred by the Administrative Agent or the
Borrower.
(h) If the Administrative Agent or any Lender receives a refund,
which in the good faith judgment of such Lender is allocable to Taxes or
Other Taxes paid by the Borrower, it shall promptly pay such refund to the
Borrower, net of all out-of-pocket expenses of such Lender incurred in
obtaining such Tax Refund, provided, however, that the Borrower agrees to
43
================================================================================
promptly return such refund to the Administrative Agent or the applicable
Lender, as the case may be, if it receives notice from the Administrative
Agent or applicable Lender that such Administrative Agent or Lender is
required to repay such refund. In addition, the Lender shall take such steps
as the Borrower shall reasonably request to recover or assist the Borrower in
recovering any Taxes or Other taxes paid by the Borrower pursuant to
paragraph (a) or (c) above.
(i) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained
in this Section 2.08 shall survive the payment in full of principal and
-------------
interest hereunder, the termination of the Letters of Credit and the
termination of this Agreement.
2.09. Increased Capital. If any Lender or Issuing Bank determines that
------------------
either (a) the introduction of or any change in any law, order or regulation
or in the interpretation or administration of any law, order or regulation by
any Governmental Authority charged with the interpretation or administration
thereof after the date hereof or (b) compliance with any guideline or request
issued or made after the date hereof from any central bank or other
Governmental Authority (whether or not having the force of law) has or would
have the effect of reducing the rate of return on the capital of such Lender
or Issuing Bank or any corporation controlling such Lender or Issuing Bank,
as a consequence of or with reference to such Lender's Commitment or its
making or maintaining Loans or such Issuing Bank's issuance or maintenance
of, or such Lender's participation in any Letter of Credit, below the rate
which such Lender or such Issuing Bank or such other corporation could have
achieved but for such compliance (taking into account the policies of such
Lender or such Issuing Bank or corporation with regard to capital), then the
Borrower shall from time to time, upon demand by such Lender or Issuing Bank
(with a copy of such demand to the Administrative Agent), pay to such Lender
or Issuing Bank additional amounts sufficient to compensate such Lender or
Issuing Bank or other corporation for such reduction, upon receipt by the
Borrower (with a copy to the Administrative Agent) of a certificate as to
such amounts, by such Lender or Issuing Bank, setting forth in reasonable
detail the basis for, and the calculations used by such Lender or Issuing
Bank in determining, any such amounts. Such certificate, in the absence of
manifest error shall be conclusive and binding for all purposes. Each Lender
and Issuing Bank agrees promptly to notify the Borrower and the
Administrative Agent of any circumstances that would cause the Borrower to
pay additional amounts pursuant to this Section 2.09, provided that the
--------------
failure to give such notice shall not affect the Borrower's obligation to pay
such additional amounts hereunder, provided further that the Borrower shall
not be required to compensate a Lender or the Issuing Banks pursuant to this
Section for any increased costs or reductions incurred more than 180 days
prior to the date that such Lender or Issuing Bank, as the case may be,
notifies the Borrower of the circumstances giving rise to such increased
costs or reductions and of such Lender's or Issuing Bank's intention to claim
compensation therefor; provided further that, if the circumstances giving
rise to such increased costs or reductions is retroactive, then the 180-day
period referred to above shall be extended to include the period of
retroactive effect thereof.
2.10. Use of Proceeds of the Loans. The proceeds of the Loans may be
------------------------------
used for general corporate purposes, including share repurchases as permitted
hereunder.
44
================================================================================
2.11. Replacement of Lender in Event of Adverse Condition. If the
---------------------------------------------------------
Borrower becomes obligated to pay additional amounts to any Lender pursuant
to Sections 2.02(f), 2.07(d), 2.08 or 2.09 as a result of any condition
----------------------------------- ----
described in such Sections which is not generally applicable to all Lenders,
then, unless such Lender has theretofore taken steps to remove or cure, and
has removed or cured, the conditions creating the cause for such obligation
to pay such additional amounts, or if any Lender defaults in its obligation
to fund Loans hereunder, the Borrower may designate another bank which is
reasonably acceptable to the Administrative Agent and the Issuing Banks (such
bank being herein called a "Replacement Lender") to purchase for cash all of
the Obligations of such Lender and all of such Lender's rights hereunder,
without recourse to or warranty by, or expense to, such Lender for a purchase
price equal to the outstanding principal amount payable to such Lender plus
any accrued but unpaid interest and accrued but unpaid commitment and other
fees, expense reimbursements and indemnities in respect of that Lender's
Commitment. Such Lender shall consummate such sale in accordance with such
terms (and, if such Lender is an Issuing Bank, such other terms as may be
necessary to compensate fully such Lender) within a reasonable time not
exceeding 60 days from the date the Borrower designated a Replacement Lender,
and upon compliance with the provisions of Section 12.01 such Lender shall no
-------------
longer be a party hereto or have any obligations or rights hereunder (except
rights which, pursuant to the provisions of this Agreement, survive the
termination of this Agreement and the repayment of the Loans), and the
Replacement Lender shall succeed to such obligations and rights.
2.12. Authorized Officers of the Borrower. The Administrative Agent
-------------------------------------
shall be entitled to rely conclusively on the authority of any officer or
employee designated pursuant to Section 4.01(c) to request any Loan or Letter
---------------
of Credit or any conversion/continuation of any Loan until the Administrative
Agent receives written notice to the contrary. The Administrative Agent
shall have no duty to verify the authenticity of the signature appearing on
any written Notice of Borrowing or Notice of Conversion/Continuation and,
with respect to an oral request for such a Loan or Letter of Credit or such
conversion/continuation, the Administrative Agent shall have no duty to
verify the identity of any person representing himself as one of the officers
or employees authorized to make such request on behalf of the Borrower.
Neither the Administrative Agent nor any Lender shall incur any liability to
the Borrower in acting upon any telephonic notice referred to above which the
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on behalf of the
Borrower.
45
================================================================================
ARTICLE III
LETTERS OF CREDIT
-----------------
3.01. Obligation to Issue. (a) Subject to the terms and conditions set
-------------------
forth herein, each Issuing Bank agrees, in reliance upon the agreements of
the other Lenders set forth in this Section 3.01 to issue, and each Lender
agrees to participate in, one or more Letters of Credit for the account of
the Borrower, up to an aggregate face amount at any one time outstanding,
together with the aggregate principal amount of outstanding Loans, equal to
the lesser of the Commitments or the Borrowing Base Amount from time to time
during the period commencing on the Effective Date and ending on the Business
Day which is five Business Days prior to the Final Maturity Date.
(b) The Lenders acknowledge that the Existing Letters of Credit have
been issued for the account of the Borrower prior to the Effective Date and
agree to participate in such Letters of Credit to the same extent and on the
same conditions as if such Letters of Credit had been issued pursuant to
paragraph (a) above.
(c) The parties agree that on the Effective Date, Bank of America, as
Issuing Bank, shall issue to Citibank U.S.A., as beneficiary, a Standby
Letter of Credit having a stated amount of not to exceed $17,310,937.00 and a
stated termination date of not later than July 1, 2001 which shall provide
for the reimbursement of Citibank U.S.A. for draws under any Citibank Letter
of Credit (the "Citibank Back-up LC"). Notwithstanding the provisions of
Section 3.08(a)(i), the Letter of Credit Fee applicable to the Citibank
- ------------------
Back-up LC shall be an amount equal to 0.50% times the stated amount
thereof. Other than the Letter of Credit Fee, all other provisions relating
to Standby Letters of Credit set forth in this Article III shall apply.
3.02. Types and Amounts. Each Issuing Bank agrees not to issue any
------------------
Letter of Credit at any time:
(a) if the aggregate maximum amount then available for drawing under
Letters of Credit issued by such Issuing Bank, after giving effect to the
issuance of such Letter of Credit, would exceed any limit imposed by law or
regulation upon such Issuing Bank;
(b) if, immediately after the issuance of such Letter of Credit, the
aggregate amount of Letter of Credit Obligations then existing (which amount
shall be calculated without giving effect to the participation of the Lenders
pursuant to Section 3.06) would exceed the lesser of (i) the Commitments then
------------
in effect less the aggregate principal amount of all outstanding Loans and
(ii) the Borrowing Base Amount then in effect less the aggregate principal
amount of all outstanding Loans;
(c) which has an expiration date (i) more than one year after the
date of issuance, for Standby Letters of Credit (provided that a Standby
Letter of Credit may provide for an annual renewal on the terms set forth in
Section 3.04(c)) or more than 180 days after the date of issuance (subject to
- ---------------
extension for a maximum period of 60 days), for Commercial Letters of Credit,
or (ii) after four Business Days immediately preceding the Final Maturity
Date; or
46
================================================================================
(d) if such Issuing Bank has received written notice from (i) the
Requisite Lenders, (ii) the Administrative Agent or (iii) the Borrower, on or
prior to the Business Day prior to the requested date of issuance of such
Letter of Credit, that one or more of the applicable conditions contained in
Article IV has not been then satisfied or waived.
- ---------
3.03. Conditions. In addition to being subject to the satisfaction of
----------
the conditions precedent contained in Section 4.02, the obligation of an
-------------
Issuing Bank to issue any Letter of Credit is subject to the condition that
as of the date of issuance, no order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or restrain the
Issuing Bank from issuing such Letter of Credit, or any Law applicable to the
Issuing Bank or any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over the Issuing Bank
shall prohibit, or request that the Issuing Bank refrain from, the issuance
of letters of credit generally or such Letter of Credit in particular or
shall impose upon the Issuing Bank with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the Issuing Bank is
not otherwise compensated hereunder) not in effect on the Closing Date, or
shall impose upon the Issuing Bank any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which the Issuing Bank in
good faith deems material to it. No Issuing Bank shall have any obligation
to issue any Letter of Credit if (a) in the case of a Commercial Letter of
Credit, such Commercial Letter of Credit does not provide for drafts or (b)
in the case of any Letter of Credit, such Letter of Credit is not otherwise
in form and substance reasonably acceptable to such Issuing Bank or the
issuance of such Letter of Credit would violate one or more policies of the
Issuing Bank. No Issuing Bank shall violate Section 3.02(b) in connection
---------------
with the issuance of any Letter of Credit by such Issuing Bank if,
immediately after the issuance of such Letter of Credit, the aggregate amount
of Letter of Credit Obligations then existing (which amount shall be
calculated without giving effect to the participation of the Lenders pursuant
to Section 3.06) in respect of Letters of Credit issued by such Issuing Bank
-------------
are equal to or less than the Applicable Approved Issuance Amount for such
Issuing Bank. In the event that the issuance of a Letter of Credit by an
Issuing Bank would cause the aggregate amount of Letter of Credit Obligations
then existing (which amount shall be calculated without giving effect to the
participation of the Lenders pursuant to Section 3.06) in respect of Letters
------------
of Credit issued by such Issuing Bank to exceed the Applicable Approved
Issuance Amount for such Issuing Bank (or would increase such excess), such
Issuing Bank shall notify the Administrative Agent thereof prior to the
issuance of such Letter of Credit and shall verify with the Administrative
Agent whether the issuance of such Letter of Credit would violate Section
-------
3.02(b).
- ------
3.04. Issuance of Letters of Credit. (a) The Borrower shall give the
------------------------------
relevant Issuing Bank notice in accordance with the relevant Issuing Bank
Agreement of the requested issuance by such Issuing Bank of a Letter of
Credit under this Agreement. Such notice shall be irrevocable and shall
specify (A) the stated amount of the Letter of Credit requested to be issued,
(B) the effective date (which day shall be a Business Day) of issuance of
such Letter of Credit, (C) the date on which such Letter of Credit is to
expire (which date shall be a Business Day and shall be subject to paragraph
(c) of Section 3.02), (D) the Person for whose benefit the requested Letter
-------------
of Credit is to be issued, (E) in the case of Standby Letters of Credit, the
full text of any certificate to be presented by the beneficiary in case of
any drawing thereunder and (F) such other matters as are set forth in the
47
================================================================================
relevant Issuing Bank Agreement or as the relevant Issuing Bank may require.
(b) No Issuing Bank shall extend or amend any Letter of Credit if the
issuance of a new Letter of Credit having the same terms as such Letter of
Credit as so extended or amended would be prohibited by Section 3.02. Any
--------------
request for amendment to any previously issued Letter of Credit shall be
given in accordance with the relevant Issuing Bank Agreement. Each request
for an amendment to a previously issued Letter of Credit shall not request an
extension beyond four Business Days immediately preceding the Final Maturity
Date. Notwithstanding any provision of any letter of credit application or
Issuing Bank Agreement to the contrary, in the event of any conflict between
the terms of any such letter of credit application or Issuing Bank Agreement
and the terms of this Agreement, the terms of this Agreement shall control
with respect to events of default, representations and warranties, and
covenants, except that such letter of credit application or Issuing Bank
Agreement may provide for further warranties relating specifically to the
transaction or affairs underlying such Letter of Credit.
(c) The Issuing Banks and the Lenders agree that, while a Standby
Letter of Credit is outstanding and prior to the Final Maturity Date, at the
option of the Borrower and upon the written request of the Borrower received
by the relevant Issuing Bank at least five days (or such shorter time as such
Issuing Bank may agree in a particular instance in its sole discretion) prior
to the proposed date of notification of renewal, such Issuing Bank shall be
entitled to authorize the automatic renewal of any Letter of Credit issued by
it so long as, immediately after the renewal thereof, the aggregate amount of
Letter of Credit Obligations then existing (which amount shall be calculated
without giving effect to the participation of the Lenders pursuant to Section
-------
3.06) in respect of Letters of Credit issued by such Issuing Bank are equal
- -----
to or less than the Applicable Approved Issuance Amount for such Issuing
Bank. Each such request for renewal of a Letter of Credit shall be made in
accordance with the relevant Issuing Bank Agreement, and shall specify in
form and detail satisfactory to the relevant Issuing Bank: (i) the Letter of
Credit to be renewed; (ii) the proposed date of notification of renewal of
the Letter of Credit (which shall be a Business Day); (iii) the revised
expiry date of the Letter of Credit; and (iv) such other matters as are set
forth in the relevant Issuing Bank Agreement or as such Issuing Bank may
require. No Issuing Bank shall so renew any Letter of Credit if: (A) such
Issuing Bank would have no obligation at such time to issue or amend such
Letter of Credit in its renewed form under the terms of Section 3.02 or 3.03;
--------------------
or (B) the beneficiary of any such Letter of Credit does not accept the
proposed renewal of the Letter of Credit. If any outstanding Existing Letter
of Credit shall provide that it shall be automatically renewed unless the
beneficiary thereof receives notice from the relevant Issuing Bank that such
Letter of Credit shall not be renewed, and if at the time of renewal such
Issuing Bank would be entitled to authorize the automatic renewal of such
Letter of Credit in accordance with this paragraph (c) upon the request of
the Borrower, but such Issuing Bank shall not have received any amendment
application from the Borrower with respect to such renewal or other written
direction by the Borrower with respect thereto, such Issuing Bank shall
nonetheless be permitted to allow such Letter of Credit to renew, and the
Borrower and the Lenders hereby authorize such renewal, and, accordingly,
such Issuing Bank shall be deemed to have received an amendment application
from the Borrower requesting such renewal.
48
================================================================================
(d) Each Issuing Bank shall notify the Administrative Agent and the
Administrative Agent shall notify the Lenders on the first Business Day of
each week of the total face amount of all of the Letters of Credit issued by
it on each Business Day of the preceding week or calendar quarter, as the
case may be.
3.05. Reimbursement Obligations; Duties of the Issuing Banks.
------------------------------------------------------
(a) (i) The Borrower shall reimburse each Issuing Bank for drawings
under a Letter of Credit issued by it no later than 1:00 p.m. (New York time)
on each date that any amount is paid by such Issuing Bank under any Letter of
Credit in an amount equal to the amount so paid by such Issuing Bank.
(ii) Any Reimbursement Obligation with respect to any Letter of Credit
shall bear interest from the date of the relevant drawing at the interest
rate applicable to Base Rate Loans until the first Business Day after the
date on which the relevant Issuing Bank gives notice of such drawing to the
Borrower and thereafter at the interest rate for past due Base Rate Loans in
accordance with Section 2.02(d).
---------------
(b) No action taken or omitted to be taken by an Issuing Bank under
or in connection with any Letter of Credit issued by it shall put such
Issuing Bank under any resulting liability to any Lender or relieve such
Lender of its obligations hereunder to such Issuing Bank except in the event
of such Issuing Bank's gross negligence or willful misconduct. Without
limiting the foregoing, in determining whether to pay under any Letter of
Credit, an Issuing Bank shall have no obligation to the Lenders other than to
confirm that any documents required to be delivered under such Letter of
Credit have been delivered and that they appear on their face to comply with
the requirements of such Letter of Credit.
(c) The obligations of the Borrower under this Agreement and any
Letter of Credit to reimburse an Issuing Bank for a drawing under a Letter of
Credit issued by it, and to repay any drawing under a Letter of Credit issued
by it, shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement and such Letter of Credit under
all circumstances, including the following:
(i) any lack of validity or enforceability of this Agreement or any
Letter of Credit;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of the Borrower in respect of
any Letter of Credit or any other amendment or waiver of or any consent to
departure from all or any Letter of Credit;
(iii) the existence of any claim, set-off, defense or other right that
the Borrower may have at any time against any beneficiary or any transferee
of any Letter of Credit (or any Person for whom any such beneficiary or any
such transferee may be acting), any Issuing Bank or any other Person, whether
in connection with this Agreement, the transactions contemplated hereby or by
the Letter of Credit or any unrelated transaction;
49
================================================================================
(iv) any draft, demand, certificate 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; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any
Letter of Credit;
(v) any payment by any Issuing Bank under any Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the
terms of any Letter of Credit; or any payment made by any Issuing Bank under
any Letter of Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of any Letter of Credit, including any arising in connection with
any insolvency proceeding;
(vi) any exchange, release or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from any other
guarantee, for all or any of the obligations of the Borrower in respect of
any Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Borrower
or a guarantor.
3.06. Participations.
--------------
(a) Immediately upon issuance by an Issuing Bank of any Letter of
Credit for the account of the Borrower in accordance with the procedures set
forth in this Article III, each Lender shall be deemed to have irrevocably
and unconditionally purchased and received from such Issuing Bank, without
recourse or warranty, an undivided interest in the amount of such Lender's
Pro Rata Share in such Letter of Credit (including all obligations of the
Borrower with respect thereto other than amounts owing to such Issuing Bank
under Section 3.08(b)) and any security therefor or guaranty pertaining
thereto.
(b) If an Issuing Bank makes any payment under any Letter of Credit
and the Borrower does not repay such amount to such Issuing Bank pursuant to
Sections 3.05(a) or 3.07, such Issuing Bank shall promptly notify the
- --------------------------
Administrative Agent and the Administrative Agent shall promptly notify each
Lender of such failure, and each Lender shall promptly and unconditionally
pay to the Administrative Agent for the account of such Issuing Bank the
amount of such Lender's Pro Rata Share of such payment, in Dollars and in
immediately available funds, and the Administrative Agent shall promptly pay
such amount, and any other amounts received by the Administrative Agent for
such Issuing Bank's account pursuant to this Section 3.06(b), to such Issuing
--------------
Bank. If the Administrative Agent so notifies such Lender prior to 11:00
a.m. (New York time) on any Business Day, such Lender shall make available to
the Administrative Agent for the account of the relevant Issuing Bank its Pro
Rata Share of the amount of such payment on such Business Day in Dollars and
in immediately available funds at the Administrative Agent's Payment Office.
If and to the extent such Lender shall not have so made its Pro Rata Share of
the amount of such payment available to the Administrative Agent for the
account of such Issuing Bank, such Lender agrees to pay to the Administrative
Agent for the account of such Issuing Bank forthwith on demand such amount
together with interest thereon, for each day from the date such payment was
50
================================================================================
first due until the date such amount is paid to the Administrative Agent for
the account of such Issuing Bank, at the Federal Funds Rate for three
Business Days and then at the Base Rate. The failure of any Lender to make
available to the Administrative Agent for the account of an Issuing Bank its
Pro Rata Share of any such payment shall not relieve any other Lender of its
obligation hereunder to make available to the Administrative Agent for the
account of such Issuing Bank its Pro Rata Share of any payment on the date
such payment is to be made.
(c) Whenever an Issuing Bank receives a payment from the Borrower on
account of a Reimbursement Obligation, including any interest thereon, as to
which the Administrative Agent has previously received payments from the
Lenders for the account of such Issuing Bank pursuant to this Section 3.06,
-------------
it shall promptly pay to the Administrative Agent at the Administrative
Agent's Payment Office and the Administrative Agent shall promptly pay to
each Lender which has funded its participating interest therein in Dollars
and in the kind of funds so received, an amount equal to such Lender's Pro
Rata Share thereof. Each such payment shall be made by the relevant Issuing
Bank or the Administrative Agent, as the case may be, on the Business Day on
which such Person receives the funds paid to such Person pursuant to the
preceding sentence, if received prior to 11:00 a.m. (New York time) on such
Business Day, and otherwise on the next succeeding Business Day.
(d) Upon the request of the Administrative Agent, each Issuing Bank
shall furnish to the Administrative Agent copies of any Letter of Credit or
Letter of Credit application form to which such Issuing Bank is party and
such other documentation as may reasonably be requested by the Administrative
Agent.
(e) The obligations of a Lender to make payments to the
Administrative Agent for the account of an Issuing Bank with respect to a
Letter of Credit issued by it on behalf of the Borrower in accordance with
the terms hereof shall be irrevocable, shall not be subject to any
qualification or exception whatsoever (except in the event of such Issuing
Bank's gross negligence or willful misconduct), and shall be honored in
accordance with the terms and conditions of this Agreement under all
circumstances (subject to Section 3.02), including any of the following
-------------
circumstances:
(i) any lack of validity or enforceability of this Agreement or any of
the other Loan Documents;
(ii) the existence of any claim, set-off, defense or other right which
the Borrower may have at any time against a beneficiary named in a Letter of
Credit or any transferee of any Letter of Credit (or any Person for whom any
such transferee may be acting), the Administrative Agent, any Issuing Bank,
any Lender, or any other Person, whether in connection with this Agreement,
any Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transactions between the Borrower and
the beneficiary named in any Letter of Credit);
51
================================================================================
(iii) any draft, certificate of any other document presented under the
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;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Loan Documents;
(v) any failure by the Administrative Agent or any Issuing Bank to
make any reports required pursuant to Section 3.04; or
------------
(vi) the occurrence of any Event of Default or Potential Event of
Default.
3.07. Payment of Reimbursement Obligations.
------------------------------------
(a) The Borrower agrees to pay to the relevant Issuing Bank the
amount of all Reimbursement Obligations, interest and other amounts payable
to such Issuing Banks under or in connection with any Letter of Credit issued
on behalf of the Borrower immediately when due, irrespective of any claim,
setoff, defense or other right which the Borrower may have at any time
against any Issuing Bank or any other Person.
(b) In the event any payment by the Borrower received by an Issuing
Bank with respect to any Letter of Credit issued by it and distributed by the
Administrative Agent to the Lenders on account of their participations is
thereafter set aside, avoided or recovered from such Issuing Bank in
connection with any receivership, liquidation or bankruptcy proceeding or
otherwise, each Lender which received such distribution shall, upon demand by
such Issuing Bank, contribute such Lender's Pro Rata Share of the amount set
aside, avoided or recovered together with interest at the rate required to be
paid by such Issuing Bank upon the amount required to be repaid by it.
3.08. Compensation for Letters of Credit.
----------------------------------
(a) Letter of Credit Fees. (i) The Borrower shall pay with respect
----------------------
to each Letter of Credit issued as a Standby Letter of Credit quarterly in
arrears, on the fifteenth day of each January, April, July and October for
the three-month period ending on such date, beginning after the Effective
Date and also on the Termination Date, a Letter of Credit Fee equal to the
percentage per annum set forth below based on the Pricing Ratio in effect
from time to time, applied (on the basis of actual days elapsed in a 360-day
year) to the maximum amount available to be drawn under such Standby Letter
of Credit from day to day during such quarter. This fee shall be paid to the
Administrative Agent, for the account of the Lenders in proportion to their
respective Pro Rata Shares.
52
================================================================================
Pricing Ratio Standby Letter of Credit Fee
Level I Status 1.25%
Level II Status 1.50%
Level III Status 1.75%
Level IV Status 2.00%
On the Business Day preceding the fifteenth day of each January, April,
July or October, each Issuing Bank will report to the Administrative Agent
the aggregate daily outstanding Standby Letter of Credit amounts for the
three-month period ending on the fifteenth of such January, April, July or
October.
(ii) The Borrower shall pay with respect to each Letter of Credit
issued as a Commercial Letter of Credit quarterly in arrears, on the
fifteenth day of each January, April, July and October for the three-month
period ending on such date, beginning after the Effective Date and also on
the Termination Date, a Letter of Credit Fee equal to the percentage per
annum set forth below based on the Pricing Ratio in effect from time to time,
applied (on the basis of actual days elapsed in a 360-day year) to the
maximum amount available to be drawn under such Commercial Letter of Credit
from day to day during such quarter. This fee shall be paid to the
Administrative Agent, for the account of the Lenders in proportion to their
respective Pro Rata Shares.
Pricing Ratio Commercial Letter of Credit Fee
Level I Status 0.500%
Level II Status 0.625%
Level III Status 0.750%
Level IV Status 0.875%
On the Business Day preceding the fifteenth day of each January, April,
July or October, each Issuing Bank will report to the Administrative Agent
the aggregate daily outstanding Commercial Letter of Credit amounts for the
three-month period ending on the fifteenth of such January, April, July or
October.
(b) Issuing Bank Charges. The Borrower shall directly pay to each
----------------------
Issuing Bank, solely for its own account, (i) quarterly in arrears on the
fifteenth day of each January, April, July and October beginning after the
Effective Date and also on the Termination Date, a fronting fee of up to
0.125% per annum applied (on the basis of actual days elapsed in a 360-day
year) to the maximum amount available to be drawn from day to day during the
immediately preceding fiscal quarter under each Letter of Credit issued by
it, and (ii) on demand the standard charges assessed by such Issuing Bank
including charges assessed in connection with the negotiation, amendment or
cancellation of Letters of Credit.
53
================================================================================
3.09. Indemnification; Exoneration.
----------------------------
(a) In addition to amounts payable as elsewhere provided in this
Article III, the Borrower hereby agrees to protect, indemnify, pay and save
the Administrative Agent, each Issuing Bank and each Lender harmless from and
against any and all Liabilities and Costs which the Administrative Agent or
such Issuing Bank or Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of the Letter of Credit other than,
in the case of such Issuing Bank, as a result of its gross negligence or
willful misconduct, as determined by the final judgment of a court of
competent jurisdiction or (ii) the failure of such Issuing Bank to honor a
drawing under 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
Governmental Authority (all such acts or omissions herein called
"Governmental Acts").
(b) As between the Borrower, the Administrative Agent, the Lenders
and the Issuing Banks, the Borrower assumes all risks of the acts and
omissions of, or misuse of such Letter of Credit by, the beneficiary of such
Letter of Credit. In furtherance and not in limitation of the foregoing, the
Issuing Banks, the Administrative Agent and the Lenders shall not be
responsible (except, in the case of an Issuing Bank, for such Issuing Bank's
gross negligence or willful misconduct in connection therewith): (i) for
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 the Letters of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason; (iii) for errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex, facsimile, or other similar form
of teletransmission or otherwise, whether or not they be in cipher; (iv) for
errors in interpretation of technical terms; (v) for any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit or of the proceeds thereof; (vi) for the
misapplication by the beneficiary of a Letter of Credit of the proceeds of
any drawing under such Letter of Credit; and (vii) for any consequences
arising from causes beyond the control of the Administrative Agent, the
Issuing Banks and the Lenders including any Governmental Acts. None of the
above shall affect, impair, or prevent the vesting of any Issuing Bank's
rights or powers under this Section 3.09.
------------
(c) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by an
Issuing Bank under or in connection with Letters of Credit issued on behalf
of the Borrower or any related certificates, if taken or omitted in good
faith, shall not, in the absence of gross negligence or willful misconduct,
put such Issuing Bank, the Administrative Agent or any Lender under any
resulting liability to the Borrower or relieve the Borrower of any of its
obligations hereunder to any such Person.
3.10 Applicability of ISP98 and UCP. Unless otherwise expressly
-----------------------------------
agreed by the Issuing Bank and the Borrower when a Letter of Credit is issued
(including any such agreement applicable to an Existing Letter of Credit),
(i) the rules of the "International Standby Practices 1998" published by the
Institute of International Banking Law & Practice (or such later version
54
================================================================================
thereof as may be in effect at the time of issuance) shall apply to each
Standby Letter of Credit, and (ii) the rules of the Uniform Customs and
Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce (the "ICC") at the time of issuance
(including the ICC decision published by the Commission on Banking Technique
and Practice on April 6, 1998 regarding the European single currency (euro))
shall apply to each Commercial Letter of Credit.
55
================================================================================
ARTICLE IV
Conditions To Loans and Letters of Credit
-----------------------------------------
4.01. Conditions Precedent to the Effective Date. The obligation of
----------------------------------------------
each Lender to make any Loan requested to be made by it on the Effective Date
(individually, an "Initial Loan" and collectively, the "Initial Loans") and
of the Issuing Banks to issue any Letter of Credit pursuant hereto on the
Effective Date, and the effectiveness of this Agreement on the Effective
Date, shall be subject to satisfaction of all of the following conditions
precedent (unless waived by all the Lenders):
(a) Certain Documents and Other Items. The Administrative Agent
-------------------------------------
shall have received on or before the Effective Date all of the following, all
of which, except as provided below, shall be in form and substance
satisfactory to the Administrative Agent and the Lenders and in sufficient
copies for each Lender:
(i) This Agreement, executed by the Borrower and each of the Lenders,
together with all Exhibits and Schedules;
(ii) (A) The Borrower Pledge Agreement and (B) the Trademark Security
Agreement, in each case, executed by the Borrower, together with stock
certificates and appropriate stock powers (endorsed in blank) in respect of
any securities pledged pursuant to the Borrower Pledge Agreement;
(iii) The ATSC Guaranty executed by ATSC;
(iv) The ATSC Pledge Agreement executed by ATSC, together with stock
certificates and appropriate stock powers (endorsed in blank) in respect of
any securities pledged pursuant to the ATSC Pledge Agreement;
(v) The Subsidiary Guaranty and Collateral Agreement executed by each
Restricted Subsidiary (other than Foreign Subsidiaries), together with stock
certificates and appropriate stock powers (endorsed in blank) in respect of
any securities pledged pursuant to the Subsidiary Guaranty and Collateral
Agreement;
(vi) The Borrower's Certificate of Incorporation, as amended, modified
or supplemented to the Effective Date, certified to be true, correct and
complete by the Secretary of State of Delaware dated as of a date not more
than ten Business Days prior to the Effective Date, together with a good
standing certificate from the Secretary of State of Delaware dated as of a
date not more than ten Business Days prior to the Effective Date;
(vii) ATSC's Certificate of Incorporation, as amended, modified or
supplemented, to the Effective Date, certified to be true, correct and
complete by the Secretary of State of Delaware dated as of a date not more
than ten Business Days prior to the Effective Date, together with a good
56
================================================================================
standing certificate from the Secretary of State of Delaware dated as of a
date not more than ten Business Days prior to the Effective Date;
(viii) A certificate of the Secretary or Assistant Secretary of the
Borrower dated the Effective Date certifying (A) the names and true
signatures of the incumbent officers of the Borrower authorized to sign this
Agreement, the other Loan Documents and any notice or certificate to be
delivered hereunder, (B) the By-Laws of the Borrower as in effect on the date
of such certification, (C) the resolutions of the Borrower's Board of
Directors approving and authorizing (x) the execution, delivery and
performance of this Agreement, and all other Loan Documents executed by the
Borrower, (y) the extensions of credit contemplated hereunder and (z) the
granting by the Borrower of the Liens created by the security documents
related hereto and (D) that there have been no changes in the Certificate of
Incorporation of the Borrower since the date of the most recent certification
thereof by the Secretary of State of Delaware;
(ix) A certificate of the Secretary or Assistant Secretary of ATSC
dated the Effective Date certifying (A) the names and true signatures of the
incumbent officers of ATSC authorized to sign the ATSC Guaranty and the ATSC
Pledge Agreement, (B) the By-Laws of ATSC as in effect on the date of such
certification, (C) the resolutions of ATSC's Board of Directors approving and
authorizing the execution, delivery and performance of the ATSC Guaranty and
the ATSC Pledge Agreement and all other Loan Documents executed by ATSC, and
(D) that there have been no changes in the Certificate of Incorporation of
ATSC since the date of the most recent certification thereof by the Secretary
of the State of Delaware;
(x) A favorable legal opinion, dated the Effective Date, addressed to
the Administrative Agent, the Issuing Banks and the Lenders from Skadden,
Arps, Slate, Meagher & Flom LLP, special counsel to the Borrower and ATSC, in
substantially the form of Exhibit 4.01(a)(xi), with such changes thereto as
--------------------
may be approved by the Administrative Agent;
(xi) UCC-1 financing statements signed by the Borrower, the Subsidiary
Guarantors or ATSC, as the case may be, as debtor naming the Administrative
Agent as secured party to be filed in the jurisdictions listed on Schedule
---------
4.01; provided, that no fixture filings shall be required to be made;
- ----
(xii) A certificate dated the Effective Date executed by a Responsible
Officer of each of the Borrower and ATSC to the effect that there has been no
material adverse change in the condition (financial or otherwise), business,
operations, properties or prospects of the Borrower or ATSC, from the date of
the last available financial statements;
(xiii) A field exam of certain assets of the Borrower and its
Subsidiaries as of March 29, 2001 issued by Bank of America;
(xiv) A Borrowing Base Certificate for the Borrower and the Subsidiary
Guarantors, dated the Effective Date, with appropriate insertions and
attachments executed by a Responsible Officer of the Borrower and setting
forth the Borrowing Base Amount as of April 7, 2001.
57
================================================================================
(xv) The results of a recent lien search in each of the jurisdictions
where assets of the Borrower and its Subsidiaries are located revealing no
liens on any assets of the Borrower or its Subsidiaries except for liens
permitted by Section 8.02(b); and
---------------
(xvi) Such additional items as the Administrative Agent or the
Requisite Lenders may reasonably require.
(b) Fees and Expenses Paid. All costs, fees (including participation
----------------------
fees as provided in the Fee Letter) and expenses (including the costs and
expenses of one outside counsel and, without duplication, the allocated cost
of in-house counsel for which invoices have been delivered prior to the
Effective Date) and other compensation payable to the Arranger, the
Syndication Agents, the Documentation Agent, the Administrative Agent, the
Issuing Banks and the Lenders shall have been paid and all fees and expenses
accrued under the Original Credit Agreement to the Effective Date, including
but not limited to commitment fees and letter of credit fees, shall have been
paid in full.
(c) Authorized Officers of the Borrower. The Borrower shall have
--------------------------------------
notified the Administrative Agent in writing of the names of the officers and
employees authorized to request Loans and Letters of Credit and to request a
conversion/continuation of any Loan and shall provide the Administrative
Agent with a specimen signature of each such officer or employee.
The acceptance by the Borrower of the proceeds of the Initial Loans
made hereunder shall constitute a representation and warranty by the Borrower
as of the Effective Date in respect of such Loans that all the conditions
contained in this Section 4.01 have been satisfied or waived in writing
-------------
pursuant to Section 12.08.
-------------
4.02. Conditions Precedent to all Loans and Letters of Credit. The
-------------------------------------------------------------
obligation of the Lenders to make any Loan requested to be made by it, and of
any Issuing Bank to issue any Letter of Credit, on any date, is subject to
the following conditions precedent as of such date:
(a) Notice of Borrowing. The Administrative Agent shall have
---------------------
received in accordance with the provisions of Section 2.01(b), on or before
----------------
any Funding Date for any Loan, a Notice of Borrowing.
(b) Additional Matters. As of the Funding Date for any Loan or the
-------------------
date of issuance of any Letter of Credit:
(i) Representations and Warranties. All of the representations
-------------------------------
and warranties of the Borrower contained in or repeated pursuant to Section
--------
5.02 and in any other Loan Document (other than representations and
- ----
warranties which expressly speak only as of a different date) shall be true
and complete in all material respects on and as of such Funding Date or
issuance date, as though made on and as of such date;
(ii) No Default. No Event of Default or Potential Event of
-----------
Default shall have occurred and be continuing or would result from the making
of the requested Loan or the issuance of the Letter of Credit; and
58
================================================================================
(iii).No Material Adverse Change. No event shall have occurred
----------------------------
after February 3, 2001, which, in the reasonable judgment of the Requisite
Lenders, has had or is likely to have a Material Adverse Effect.
(c) Supplemental Documentation. Such additional documentation
----------------------------
(including opinions of counsel) as the Administrative Agent or any Lender
through the Administrative Agent may reasonably require.
(d) Compliance with Borrowing Base. After giving effect to the
---------------------------------
making of such Loans or the issuance of such Letters of Credit, the sum of
(i) the aggregate principal amount of Loans then outstanding plus (ii) the
Letter of Credit Obligations at such time does not exceed the Borrowing Base
Amount at such time.
The acceptance by the Borrower of the proceeds of each Loan made on any
Funding Date other than the Effective Date or the issuance of any Letter of
Credit in accordance with this Agreement shall constitute a representation
and warranty by the Borrower as of such Funding Date or issuance date that
all the conditions contained in this Section 4.02 have been satisfied or
-------------
waived in writing pursuant to Section 12.08.
-------------
59
================================================================================
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
5.01. Representations and Warranties on the Effective Date. In order
--------------------------------------------------------
to induce the Lenders to enter into this Agreement and to make the Initial
Loans, the Borrower hereby represents and warrants to each Lender, each
Issuing Bank, the Syndication Agents, the Documentation Agent and the
Administrative Agent that the following statements are true and correct:
(a) Organization; Corporate Powers. Each of ATSC, the Borrower and
--------------------------------
each Subsidiary of the Borrower (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (ii) is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction in which it owns
or leases real property or in which the nature of its business requires it to
be so qualified, except those jurisdictions where the failure to be in good
standing or to so qualify has not had or will not have a Material Adverse
Effect, and (iii) has all requisite corporate power and authority to own,
operate and encumber its property and assets and to conduct its business as
presently conducted and as proposed to be conducted in connection with and
following the consummation of the transactions contemplated by the Loan
Documents.
(b) Authority. (i) Each Loan Party has the requisite corporate power
----------
and authority to execute, deliver and perform its obligations under each of
the Loan Documents executed by it, or to be executed by it.
(ii) The execution, delivery and performance (or filing or recording,
as the case may be) of each of the Loan Documents to which it is party and
the consummation of the transactions contemplated thereby, have been duly
authorized by all necessary corporate action on the part of each Loan Party
and no other corporate proceedings on the part of such Loan Party are
necessary to consummate such transactions.
(iii) Each of the Loan Documents (other than those not in effect on
the date of the making of this representation) to which it is a party has
been duly executed and delivered by each Loan Party and constitutes its
legal, valid and binding obligation, enforceable against it in accordance
with its terms, is in full force and effect and no term or condition thereof
has been amended, modified or waived from the terms and conditions contained
therein delivered to the Administrative Agent pursuant to Article IV without
----------
the prior written consent of the Administrative Agent and the Requisite
Lenders, and each Loan Party and, to the best of the Borrower's knowledge,
the other parties thereto have performed and complied in all material
respects with all the material terms, provisions, agreements and conditions
set forth therein and required to be performed or complied with by such
parties on or before the effective date thereof, and no default by any such
party exists thereunder.
(c) No Conflict. The execution, delivery and performance of each
------------
Loan Document to which it is a party by each Loan Party and each of the
transactions contemplated thereby do not and will not (i) constitute a
60
================================================================================
tortious interference with any Contractual Obligation of any Person, any
liability resulting from which would have or be reasonably expected to have a
Material Adverse Effect, or (ii) conflict with or violate such Person's
Certificate of Incorporation or By-Laws, or (iii) conflict with, result in a
breach of or constitute (with or without notice or lapse of time or both) a
default under any Requirement of Law or material Contractual Obligation of
ATSC or of the Borrower or any Subsidiary of the Borrower, or (iv) result in
or require the creation or imposition of any Lien whatsoever upon any of the
properties or assets of ATSC, the Borrower or any Subsidiary of the Borrower
(other than Liens in favor of the Administrative Agent or the Issuing Banks
arising pursuant to the Loan Documents or Liens permitted pursuant to Section
-------
8.02(b)), or (v) require any approval of stockholders, unless such approval
- --------
has been obtained.
(d) Governmental Consents. The execution, delivery and performance
----------------------
of each Loan Document to which it is a party, by each Loan Party and the
transactions contemplated thereby do not and will not require any
registration with, consent or approval of, or notice to, or other action,
with or by any Governmental Authority, except filings, consents or notices
which have been, or will in due course be, made, obtained or given.
(e) Governmental Regulation. None of ATSC, the Borrower or any of
------------------------
its Subsidiaries is subject to regulation under the Public Utility Holdings
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, the
Investment Company Act of 1940 or any other statute or regulation of any
Governmental Authority such that its ability to incur indebtedness is limited
or its ability to consummate the transactions contemplated hereby is
materially impaired.
(f) Financial Position. All quarterly and annual financial
---------------------
statements of ATSC, the Borrower or of the Borrower and any of its Restricted
Subsidiaries delivered to the Administrative Agent were prepared in
conformity with GAAP, except as otherwise noted therein, and fairly present
the financial position of ATSC, the Borrower or the consolidated financial
position of ATSC, the Borrower and such Subsidiaries, as the case may be, as
at the respective dates thereof and the results of operations and changes in
cash flows for each of the periods covered thereby, subject, in the case of
any unaudited interim financial statements, to changes resulting from audit
and normal year-end adjustments. Except as contemplated in the Loan
Documents, none of ATSC, the Borrower or any of its Restricted Subsidiaries
has any material obligations, contingent liabilities or liabilities for
taxes, long term leases or material or unusual forward or long term
commitments which are not reflected in such financial statements and the
notes thereto.
(g) Litigation; Adverse Effects. (i) There is no action, suit,
-----------------------------
proceeding, investigation of any Governmental Authority or arbitration, at
law or in equity, or before or by any Governmental Authority, pending, or, to
the best knowledge of the Borrower, threatened against ATSC, the Borrower or
any Subsidiary of the Borrower or any property of any of them, which would be
reasonably expected to (A) result in any Material Adverse Effect, (B)
materially and adversely affect the ability of any party to any of the Loan
Documents to perform its obligations thereunder, or (C) materially and
adversely affect the ability of the Borrower to perform its Obligations or
the Lenders' ability to enforce such Obligations.
61
================================================================================
(ii) None of ATSC, the Borrower or any Subsidiary of the Borrower is
(A) in violation of any applicable law which violation has or might
reasonably be expected to have a Material Adverse Effect, or (B) subject to
or in default with respect to any final judgment, writ, injunction, decree,
order, rule or regulation of any court or Governmental Authority which has or
might have a Material Adverse Effect. There is no action, suit, proceeding
or investigation pending or, to the knowledge of the Borrower, threatened
against or affecting ATSC, the Borrower or any Subsidiary of the Borrower
challenging the validity or the enforceability of any of the Loan Documents.
(h) No Material Adverse Change. There has occurred no event since
-----------------------------
February 3, 2001, which has or would be reasonably expected to have a
Material Adverse Effect.
(i) Payment of Taxes. All tax returns and reports of each of ATSC,
----------------
the Borrower and its Subsidiaries required to be filed (including
extensions), have been timely filed, and all taxes, assessments, fees and
other charges of Governmental Authorities thereupon and upon their respective
properties, assets, income and franchises which are shown on such returns as
being due and payable, have been paid when due and payable, except such
taxes, if any, that are reserved against in accordance with GAAP, such taxes
which are not yet delinquent, such taxes which are payable in installments so
long as paid before any penalty accrues with respect thereto and such taxes
as are being contested in good faith by appropriate proceedings.
(j) Material Adverse Agreements. None of ATSC, the Borrower or any
-----------------------------
of its Subsidiaries is a party to or subject to any Contractual Obligation or
other restriction contained in its charter or By-laws which has or would
reasonably be expected to have a Material Adverse Effect after giving effect
to the consummation of the transactions contemplated in the Loan Documents or
otherwise.
(k) Securities Activities. None of ATSC, the Borrower or any of its
-----------------------
Subsidiaries is engaged in the business of extending credit for the purpose
of purchasing or carrying any Margin Stock and the Borrower shall not use the
proceeds of any Loan in violation of Regulation T, U or X of the Federal
Reserve Board.
(l) Disclosure. Subject to changes in facts or conditions which are
----------
required or permitted under this Agreement, the representations and
warranties of ATSC and the Borrower contained in the Loan Documents, and all
certificates and other documents delivered to the Administrative Agent in
connection therewith, taken as a whole do not contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements contained herein or therein, in light of the circumstances
under which they were made, not misleading.
(m) Patents, Trademarks, Permits, Etc. The Borrower and each of its
------------------------------------
Restricted Subsidiaries owns, is licensed or otherwise has the lawful right
to use, or has all permits and other approvals of Governmental Authorities,
patents, trademarks, service marks, trade names, copyrights, technology,
know-how and processes used in or necessary for the conduct of its business
as currently conducted which are material to its financial condition,
62
================================================================================
business, operations, assets and prospects, individually or taken as a
whole. The use of such permits and other approvals of Governmental
Authorities, patents, trademarks, service marks trade names, copyrights,
technology, know-how and processes by the Borrower or any such Subsidiary
does not infringe on the rights of any Person, subject to such claims and
infringements the existence of which do not have or are not reasonably
expected to have a Material Adverse Effect. The transactions contemplated by
the Loan Documents will not impair the ownership of or rights under (or the
license or other right to use, as the case may be) any permits and
governmental approvals, patents, trademarks, service marks, trade names,
copyrights, technology, know-how or processes by the Borrower or any such
Subsidiary in any manner which has or might have a Material Adverse Effect.
(n) Environmental Matters. To the best of the Borrower's knowledge,
----------------------
the operations of the Borrower and its Restricted Subsidiaries comply in all
material respects with all applicable environmental, health and safety
Requirements of Law except where any failure to comply is not reasonably
likely to have a Material Adverse Effect, and that no notice has been served
on the Borrower or any of its Restricted Subsidiaries.
(o) ERISA. Each Plan is in compliance in all material respects with
-----
its terms and with ERISA, the Code and any applicable law. Each Plan which
is intended to be qualified under Section 401(a) of the Code is so qualified
and has received a determination letter to that effect, or will promptly be
submitted to the IRS for a determination that it is so qualified and that the
trust related to any such Plan is exempt from Federal income tax under
Section 501(a) of the Code as currently in effect. Neither the Borrower nor
any ERISA Affiliate has breached any of the responsibilities, obligations or
duties imposed on it by ERISA or regulations promulgated thereunder with
respect to any Plan which breach would have or would be reasonably expected
to have a Material Adverse Effect. No Benefit Plan has incurred any
accumulated funding deficiency (as defined in Sections 302(a)(2) of ERISA and
412(a) of the Code) or is reasonably likely to have such a deficiency whether
or not waived which would have or would be reasonably expected to have a
Material Adverse Effect, and no application for a funding waiver or extension
of any amortization period pursuant to Section 412 of the Code has been made
with respect to any Plan. None of the Borrower, any ERISA Affiliate or any
fiduciary of any Plan which is not a Multiemployer Plan has taken or failed
to take any action which would constitute or result in a Termination Event
that would have or would be reasonably expected to have a Material Adverse
Effect. There are no premium payments which have become due to the PBGC
which are unpaid. Neither the Borrower nor any ERISA Affiliate has (i)
failed to make a required contribution or payment to a Multiemployer Plan
which would have or would be reasonably expected to have a Material Adverse
Effect or (ii) made a complete or partial withdrawal under Section 4203 or
4205 of ERISA from a Multiemployer Plan which would have or would be
reasonably expected to have a Material Adverse Effect. Neither the Borrower
nor any ERISA Affiliate has failed to make a required installment or any
other required payment under Section 412 of the Code on or before the due
date for such installment or other payment which would have or would be
reasonably expected to have a Material Adverse Effect. Neither the Borrower
nor any ERISA Affiliate is required to provide security to a Benefit Plan
under Section 401(a)(29) of the Code due to a Plan amendment that results in
an increase in current liability for, the plan year.
63
================================================================================
(p) Restricted Subsidiaries. As of the Effective Date, the
-------------------------
Restricted Subsidiaries of the Borrower are those set forth on Schedule
--------
5.01(p).
- -------
5.02. Subsequent Funding Representations and Warranties. In order to
----------------------------------------------------
induce the Lenders to make any Loans after the Effective Date, and the
Issuing Banks to issue Letters of Credit, the Borrower hereby represents and
warrants to each Lender, each Issuing Bank, and the Administrative Agent that
the statements set forth in Section 5.01 (except to the extent that such
-------------
statements expressly are made only as of the Effective Date), are true,
correct and complete in all material respects as though made on and as of the
Funding Date in respect of each Borrowing after the Effective Date and the
date of issuance of each Letter of Credit, except that the representations
and warranties need not be true and correct to the extent that changes in the
facts and conditions on which such representations and warranties are based
are required or permitted under this Agreement.
64
================================================================================
ARTICLE VI
Reporting Covenants
-------------------
6.01. Financial Statements. So long as the Borrower shall have any
---------------------
Obligation or any Lender shall have any Commitment hereunder or any Letter of
Credit shall be outstanding, the Borrower shall maintain or cause to be
maintained a system of accounting established and administered in accordance
with sound business practices and consistent with past practice to permit
preparation of financial statements in conformity with GAAP, and each of the
financial statements described below shall be prepared from such system and
records. The Borrower shall deliver or cause to be delivered to the
Administrative Agent (with a sufficient number of copies for each Lender):
(a) As soon as practicable, and in any event within 45 days after the
end of each of ATSC's first three fiscal quarters on a consolidated basis for
ATSC, the Borrower and its Restricted Subsidiaries, a balance sheet, income
statement and cash flow statement for such fiscal quarter and a year-to-date
balance sheet, income statement and cash flow statement of ATSC, the Borrower
and its Restricted Subsidiaries, and a report identifying the Restricted
Subsidiaries of the Borrower and any Unrestricted Subsidiaries that have
become Restricted Subsidiaries since the date of the most recent such report,
all certified by a Responsible Officer;
(b) As soon as practicable, and in any event within 90 days after the
end of each Fiscal Year, annual financial statements on a consolidated basis
for ATSC, the Borrower and its Subsidiaries, consisting of a balance sheet,
income statement and cash flow statement, certified without qualification by
the firm of independent certified public accountants of recognized national
standing regularly retained by ATSC and acceptable to the Administrative
Agent, and accompanied by such firm's certification that, in the course of
its audit (conducted in accordance with generally accepted auditing
standards), it obtained no knowledge that an Event of Default or Potential
Event of Default has occurred as a result of a violation of any of the
covenants set forth in Article IX;
(c) As soon as practicable, and in any event within 45 days after the
end of each Fiscal Year, on a consolidated basis for ATSC, the Borrower and
its Subsidiaries, detailed financial projections for the Fiscal Year next
succeeding such Fiscal Year, including a written explanation of the principal
assumptions made with respect thereto;
(d) (i) Together with each delivery of the financial statements
pursuant to paragraphs (a)(i) and (b) above, a Compliance Certificate of the
Borrower substantially in the form of Exhibit 6.01(d)(i), stating that the
-------------------
executive officers signatory thereto have reviewed the terms of this
Agreement and the Collateral Documents, and have made, or caused to be made
under their supervision, a review in reasonable detail of the transactions
and condition of the Borrower and its Subsidiaries, during the accounting
period covered by such financial statements, and that such review has not
disclosed the existence during or at the end of such accounting period, and
that the signers do not have knowledge of the existence as at the date of
such certificate, of any condition or event which constitutes an Event of
Default or Potential Event of Default, or, if any such condition or event
65
================================================================================
existed or exists, specifying the nature and period of existence thereof and
what action the Borrower has taken, is taking and proposes to take with
respect thereto; provided, however, that Attachment 2 to Exhibit 6.01(d)(i),
------------------
need not be included in the Compliance Certificate provided together with the
financial statements delivered pursuant to paragraph (a) above and (ii) not
later than 45 days after the end of each fiscal quarter (including the fourth
fiscal quarter), a Pricing Ratio Certificate, substantially in the form of
Exhibit 6.01(d)(ii) (a "Pricing Ratio Certificate"), calculating the Pricing
- ------------------
Ratio for the four consecutive fiscal quarters ending with such fiscal
quarter.
(e) Promptly upon ATSC or the Borrower obtaining knowledge (A) of any
condition or event which constitutes an Event of Default or Potential Event
of Default, (B) of any condition or event which constitutes an event of
default or which, with the giving of notice or lapse of time or both, would
constitute an event of default under the Convertible Debenture Indenture, or
(C) of any condition or event which has or in the Borrower's judgment is
likely to have a Material Adverse Effect, a certificate of a Responsible
Officer specifying the nature and period of existence of any such condition
or event, or specifying the notice given or action taken by any lender or
holder of any Convertible Debentures and the nature of such claimed default,
Event of Default, Potential Event of Default, event or condition, and what
action the Borrower has taken, is taking and proposes to take with respect
thereto;
(f) (A) Promptly after learning thereof, notice of the institution
of, or threat of, any action, suit, proceeding, governmental investigation or
arbitration against or affecting ATSC, the Borrower or any Restricted
Subsidiary of the Borrower involving claims in excess of $10,000,000, or any
Property of ATSC, the Borrower or any Restricted Subsidiary of the Borrower
valued in excess of $10,000,000 except, in each case, where the same is fully
covered by insurance (other than any applicable deductible) or has been
previously disclosed in writing by the Borrower and of any material adverse
change in any existing action, suit, proceeding, governmental investigation
or arbitration; and (B) promptly upon learning thereof, notice of any
investigation or proceeding before or by any Governmental Authority, the
effect of which might limit, prohibit or restrict materially the manner in
which it currently conducts its business or to declare any substance
contained in the products manufactured or distributed by it to be dangerous,
if such declaration is reasonably likely to have a Material Adverse Effect;
(g) As soon as possible, and in any event within ten Business Days
after either the Borrower or any ERISA Affiliate knows or has reason to know
that a Termination Event has occurred, a written statement of a Responsible
Officer of the Borrower describing such Termination Event and the action, if
any, which the Borrower or such ERISA Affiliate has taken, is taking or
proposes to take with respect thereto, and when known, any action taken or
threatened by the IRS, DOL or PBGC with respect thereto;
(h) Promptly upon, and in any event within ten Business Days after,
receipt by the Borrower or an ERISA Affiliate of the PBGC's intention to
terminate a Benefit Plan or to have a trustee appointed to administer a
Benefit Plan, copies of each such notice;
66
================================================================================
(i) Promptly upon, and in any event within ten Business Days after,
receipt by the Borrower or any ERISA Affiliate of any unfavorable
determination letter from the IRS regarding the qualification of a Plan under
Section 401(a) of the Code, copies of such letter;
(j) Promptly upon, and in any event within ten Business Days after,
receipt by the Borrower or an ERISA Affiliate of a notice from a
Multiemployer Plan regarding the imposition of withdrawal liability, copies
of each such notice;
(k) (i) Promptly upon, and in any event within ten Business Days,
after the Borrower or any ERISA Affiliate knows (A) a Multiemployer Plan has
been terminated, (B) the administrator or plan sponsor of a Multiemployer
Plan intends to terminate a Multiemployer Plan, or (C) the PBGC has
instituted or will institute proceedings under Section 4042 of ERISA to
terminate a Multiemployer Plan a notification of such information; (ii) with
reasonable promptness, and in any event within thirty (30) days thereof, give
notice to the Agent of (a) the establishment of any new Plan (which notice
shall include a copy of such Plan), (b) the commencement of contributions to
any Plan to which the Borrower or any of its ERISA Affiliates was not
previously contributing, (c) any material increase in the benefits of any
existing Plan, (d) each funding waiver request filed with respect to any Plan
and all communications received or sent by the Borrower or any ERISA
Affiliate with respect to such request and (e) the failure of the Borrower or
any ERISA Affiliate to make a required installment or payment under Section
302 of ERISA or Section 412 of the Code by the due date; and (iii) promptly
and in any event within fifteen (15) days of becoming aware of the occurrence
or forthcoming occurrence of any (a) Termination Event or (b) nonexempt
"prohibited transactions," as such term is defined in Section 406 of ERISA or
Section 4975 of the Code, in connection with any Plan or any trust created
thereunder, deliver to the Agent a notice specifying the nature thereof, what
action the Borrower or any ERISA Affiliate has taken, is taking or proposes
to take with respect thereto and, when known, any action taken or threatened
by the IRS, the DOL or the PBGC with respect thereto;
(l) Such other information respecting the financial condition of
ATSC, the Borrower or any Restricted Subsidiary of the Borrower, business,
operations, assets, performance or prospects as the Administrative Agent or
the Requisite Lenders may, from time to time, reasonably request including
financial projections and including monthly balance sheets, income statements
and cash flow statements;
(m) On a timely basis consistent with the Borrower's legal
obligations to release such materials, copies of all financial statements,
reports and notices, if any, sent or made available generally by the Borrower
to the holders of its publicly-held Securities or sent or made available
generally to a holder of any Convertible Debentures or the trustee under the
Convertible Debenture Indenture or filed with the Commission and of all press
releases made available generally by the Borrower to the public concerning
material developments in the business of the Borrower;
(n) Upon the request of the Administrative Agent or any Lender,
copies of any management reports prepared by the Borrower's independent
certified public accountants in connection with the annual audit;
67
================================================================================
(o) As soon as available, but in any event no later than 15 days
after the end of each fiscal month of the Borrower, a Borrowing Base
Certificate of the Borrower dated as of the last day of such fiscal month
with appropriate insertions and attachments certified by a Responsible
Officer;
(p) Promptly upon sending or receiving copies, any and all management
letters and correspondence relating to management letters, sent or received
by the Borrower to or from the Borrower's independent certified public
accountants, and
(q) Promptly upon, and in any event within ten Business Days after receipt
by the Borrower or any Restricted Subsidiary, of notice from any entity,
governmental body, or individual claiming any violation of any material
environmental, health and safety Requirements of Law or requiring compliance
with any material environmental, health and safety Requirements of Law, or
demanding payment of or contribution for damages regarding the Borrower or
any of its Restricted Subsidiaries related in any way to any material
environmental, health and safety Requirements of Law.
68
================================================================================
ARTICLE VII
Affirmative Covenants
---------------------
The Borrower covenants and agrees that, on and after the date hereof
and so long as any Lender shall have any Commitment hereunder or any Letter
of Credit shall be outstanding hereunder and until payment in full of all of
the Obligations:
7.01. Corporate Existence, Etc. The Borrower shall, and shall cause
---------------------------
ATSC and each of its Restricted Subsidiaries to, at all times maintain its
corporate existence and preserve and keep in full force and effect its rights
and franchises except as permitted under Section 8.08.
7.02. Corporate Powers, Etc. The Borrower shall, and shall cause ATSC
-----------------------
and each Restricted Subsidiary of the Borrower to, qualify and remain
qualified to do business in each jurisdiction in which the nature of its
business requires it to be so qualified, except in those jurisdictions where
the failure to so qualify does not have or would not reasonably be expected
to have a Material Adverse Effect.
7.03. Compliance with Laws. The Borrower shall, and shall cause ATSC
---------------------
and each Restricted Subsidiary of the Borrower to, comply with all
Requirements of Law, and all restrictive covenants affecting it or its
business, properties, assets or operations, where the failure so to comply
would reasonably be expected to have Material Adverse Effect.
7.04. Payment of Taxes and Claims. The Borrower shall, and shall cause
---------------------------
ATSC and each Restricted Subsidiary of the Borrower, to pay (a) all material
taxes, assessments and other governmental charges imposed upon it or on any
of its properties or assets or in respect of any of its franchises, business,
income or property before any material penalty or interest in a material
amount accrues thereon, and (b) all claims (including claims for labor,
services, materials and supplies) for sums, material in the aggregate, which
have become due and payable and which by law have or may become a Lien (other
than a Customary Permitted Lien) upon any of its properties or assets, prior
to the time when any material penalty or fine shall be incurred with respect
thereto; provided that no such taxes, assessments and governmental charges
referred to in clause (a) above or claims referred to in clause (b) above
need be paid if being contested in good faith by appropriate proceedings
instituted and diligently conducted and if such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have
been made therefor.
7.05. Maintenance of Properties; Insurance. The Borrower shall and
----------------------------------------
shall cause ATSC and each Restricted Subsidiary of the Borrower to, maintain
or cause to be maintained in good repair, working order and condition,
excepting ordinary wear and tear and damage due to casualty or condemnation,
all Property material to its operations and will make or cause to be made all
appropriate repairs, renewals and replacements thereof, consistent with past
practice. The Borrower shall, and shall cause each of its Restricted
Subsidiaries to, maintain such insurance as it may be required to maintain
under its leases and other contracts and, to the extent not inconsistent with
such requirements, shall also maintain with financially sound insurance
companies, insurance policies and programs against loss or damage by fire,
69
================================================================================
theft, burglary, pilferage and loss in transit, together with such other
hazards as is reasonably consistent with prudent industry practice, and
maintain product and other liability insurance consistent with prudent
industry practice with financially sound insurance companies.
7.06. Inspection of Property; Books and Records; Discussions. The
------------------------------------------------------------
Borrower shall, and shall cause ATSC and each Restricted Subsidiary of the
Borrower to, permit (a) any authorized representative(s) designated by the
Administrative Agent to visit and inspect any of its properties, including
financial and accounting records, and to make copies and take extracts
therefrom, and to discuss its affairs, finances and accounts with its
officers, employees, representatives, agents or independent certified public
accountants, all upon reasonable notice and at such reasonable time and as
often as may be reasonably requested and (b) the Administrative Agent and its
representatives to perform collateral audits with respect to the Credit Card
Accounts, Inventory and Eligible Fixed Assets of the Borrower and the
Subsidiary Guarantors, provided that, unless an Event of Default shall have
occurred and be continuing, the Administrative Agent shall have the right to
perform or cause to be performed only one such collateral audit per year.
Each such visitation, inspection or collateral audit made by or on behalf of
the Administrative Agent shall be at the Borrower's expense. The Borrower
will keep proper books of record and account in which entries in conformity
with GAAP shall be made to prepare the financial statements described in
Section 6.01 and to satisfy all Requirements of Law.
- ------------
7.07. Labor Matters. The Borrower shall notify the Administrative
--------------
Agent in writing, promptly, of any material labor dispute to which it may
become a party, any strikes or walkouts relating to any of its facilities and
the expiration of any labor contract to which it is a party or by which it is
bound.
7.08. Maintenance of Permits. The Borrower shall obtain and maintain,
-----------------------
and shall cause each of its Restricted Subsidiaries to obtain and maintain,
in full force and effect all Permits or other rights necessary for the
operation of its business, except where the failure to obtain or maintain
such Permits or rights would not have or would not reasonably be expected to
have a Material Adverse Effect.
7.09. ERISA. The Borrower shall establish, maintain and operate and
------
cause each of its ERISA Affiliates to establish, maintain and operate, all
Plans in all material respects in compliance with their terms and with the
applicable provisions of ERISA, the Code, and all other Requirements of Law.
7.10. Pledge of After-Acquired Property; Additional Guarantors. (a)
------------------------------------------------------------
With respect to any property acquired after the Effective Date by ATSC, the
Borrower or any of the Subsidiary Guarantors (other than (x) any property
described in paragraph (b), (c) or (d) below, (y) any property subject to a
Lien expressly permitted by Section 8.02(b)(iv) and (z) property acquired by
--------------------
any Foreign Subsidiary) as to which the Administrative Agent, for the benefit
of the Lenders, does not have a perfected Lien, the Borrower shall, or shall
cause ATSC or the relevant Subsidiary Guarantors to, promptly (i) execute and
deliver to the Administrative Agent such amendments to the Collateral
Documents or such other documents as the Administrative Agent deems necessary
or advisable to grant to the Administrative Agent, for the benefit of the
Lenders, a security interest in such property and (ii) take all actions
70
================================================================================
necessary or advisable to grant to the Administrative Agent, for the benefit
of the Lenders, a perfected first priority security interest in such
property, including the filing of Uniform Commercial Code financing
statements in such jurisdictions as may be required by the Collateral
Documents or by law or as may be requested by the Administrative Agent.
(b) With respect to any fee interest in any real property having an
appraised value (together with improvements thereof) of at least $1,000,000
acquired after the Effective Date by ATSC, the Borrower or any of the
Subsidiary Guarantors (other than (x) any such real property subject to a
Lien expressly permitted by Section 8.02(b)(iv) and (z) real property
--------------------
acquired by any Foreign Subsidiary), the Borrower shall, or shall cause ATSC
or the relevant Subsidiary Guarantors to, promptly (i) execute and deliver a
first priority mortgage, in favor of the Administrative Agent, for the
benefit of the Lenders, covering such real property, (ii) if requested by the
Administrative Agent, provide the Lenders with (x) title and extended
coverage insurance covering such real property in an amount at least equal to
the purchase price of such real property (or such other amount as shall be
reasonably specified by the Administrative Agent) as well as a current ALTA
survey thereof, together with a surveyor's certificate and (y) any consents
or estoppels reasonably deemed necessary or advisable by the Administrative
Agent in connection with such mortgage or deed of trust, each of the
foregoing in form and substance reasonably satisfactory to the Administrative
Agent and (iii) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
(c) With respect to any new Restricted Subsidiary (other than a
Foreign Subsidiary or a Nonmaterial Domestic Subsidiary) created or acquired
(or any Subsidiary which ceases to be a Nonmaterial Domestic Subsidiary in
accordance with the definition thereof) after the Effective Date by ATSC, the
Borrower or any of its Restricted Subsidiaries, the Borrower shall, or shall
cause ATSC or the relevant Restricted Subsidiaries to, promptly (i) execute
and deliver to the Administrative Agent such amendments to the Collateral
Documents and UCC-1 financing statements as the Administrative Agent deems
necessary or advisable to grant to the Administrative Agent, for the benefit
of the Lenders, a perfected first priority security interest in the
Securities of such new Subsidiary that are owned by ATSC, the Borrower or any
Subsidiary Guarantor, (ii) deliver to the Administrative Agent the
certificates, if any, representing such Securities, together with undated
stock powers, in blank, executed and delivered by a duly authorized officer
of ATSC, the Borrower or such Subsidiary Guarantor, as the case may be, (iii)
cause such new Subsidiary (A) to become a party to the Subsidiary Guaranty
and Collateral Agreement, (B) to take such actions necessary or advisable to
grant to the Administrative Agent for the benefit of the Lenders a perfected
first priority security interest in the Collateral described in the
Subsidiary Guaranty and Collateral Agreement with respect to such new
Subsidiary, including the filing of Uniform Commercial Code financing
statements in such jurisdictions as may be required by the Subsidiary
Guaranty and Collateral Agreement or by law or as may be requested by the
Administrative Agent and (C) to deliver to the Administrative Agent a
certificate of such Subsidiary of the type described in Section 4.01(a)(ix)
--------------------
in form and substance satisfactory to the Administrative Agent, and (iv) if
requested by the Administrative Agent, deliver to the Administrative Agent
legal opinions relating to the matters described above, which opinions shall
71
================================================================================
be in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(d) With respect to any new Foreign Subsidiary created or acquired
after the Effective Date by ATSC, the Borrower or any of the Subsidiary
Guarantors, the Borrower shall, or shall cause ATSC or the relevant
Subsidiary Guarantors to, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Collateral Documents as the
Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first
priority security interest in the Securities of such new Subsidiary that is
owned by ATSC, the Borrower or any Subsidiary Guarantor (provided that in no
event shall more than 65% of the total outstanding voting equity Securities
of any such new Subsidiary be required to be so pledged), (ii) deliver to the
Administrative Agent the certificates, if any, representing such Securities,
together with undated stock powers, in blank, executed and delivered by a
duly authorized officer of ATSC, the Borrower or such Subsidiary Guarantor,
as the case may be, and take such other action as may be necessary or, in the
opinion of the Administrative Agent, desirable to perfect the Administrative
Agent's security interest therein, and (iii) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
7.11. Further Assurances. At any time and from time to time, upon the
-------------------
Administrative Agent's request and at the expense of the Borrower, promptly
and duly execute and deliver or cause to be executed and delivered any and
all further instruments and documents and take such further action as the
Administrative Agent may reasonably request to effect the purpose of the
Collateral Documents, including, without limitation, the filing of any
financing or continuation statements under the Uniform Commercial Code in
effect in any jurisdiction.
72
================================================================================
ARTICLE VIII
Negative Covenants
------------------
The Borrower covenants and agrees that, on and after the date hereof
and so long as any Lender shall have any Commitment hereunder or any Letter
of Credit shall be outstanding hereunder and until payment in full of all of
the Obligations:
8.01. Indebtedness. The Borrower shall not, and shall not permit ATSC
------------
or any Restricted Subsidiary to, create, incur, assume or otherwise become or
remain directly or indirectly liable with respect to any Indebtedness,
except:
(a) the Obligations;
(b) Indebtedness in the form of bank overdrafts in the ordinary
course of business;
(c) (i) Indebtedness incurred by the Borrower or any Restricted
Subsidiary to finance Capital Expenditures and (ii) Capital Lease obligations
of the Borrower or any Restricted Subsidiary;
(d) Indebtedness in respect of Accommodation Obligations permitted
under Section 8.04;
------------
(e) Indebtedness of ATSC to the Borrower and any Restricted
Subsidiary in connection with any advances made pursuant to Section 8.03(b);
--------------
(f) Indebtedness in respect of Interest Rate Contracts and Foreign
Currency Exchange Contracts entered into in the ordinary course of business
and not for speculative purposes;
(g) subject to Section 8.03(d), intercompany Indebtedness among the
---------------
Borrower and its Restricted Subsidiaries;
(h) Indebtedness arising out of Liens permitted under clauses (iii),
(vi) and (ix) of Section 8.02(b);
(i) Indebtedness of ATSC under the Convertible Debentures;
(j) Permitted Existing Indebtedness and refinancings, renewals or
extensions thereof so long as the principal amount of any such Permitted
Existing Indebtedness is not increased and the maturity date thereof is not
accelerated as a result of any such refinancing, renewal or extension (other
than by an amount equal to the amount of fees and expenses payable in
connection with such refinancing, renewal or extension);
(k) other Indebtedness of the Borrower and its Restricted
Subsidiaries not exceeding in the aggregate principal amount of $25,000,000
at any one time outstanding; and
73
================================================================================
(l) the Convertible Debentures Note.
8.02. Sales of Assets; Liens.
----------------------
(a) Sales. The Borrower shall not, and shall not permit ATSC or any
-----
Restricted Subsidiary to, sell, assign, transfer, lease, convey or otherwise
dispose of, any properties or assets, whether now owned or hereafter
acquired, or any income or profits therefrom, except among ATSC, the Borrower
and any Restricted Subsidiary and except:
(i) sales of inventory and subleases of real property in the ordinary
course of business (and with respect to such subleases consistent with its
past practices);
(ii) subleases of real property not in the ordinary course of
business, but only to the extent the aggregate annual rental payments accrued
under all such subleases do not exceed $1,000,000;
(iii) other sales of assets, including the sale of Securities of
Subsidiaries, whether or not in the ordinary course of business, having an
aggregate fair market value of not more than $2,000,000 pursuant to any one
single disposition or $4,000,000 in the aggregate pursuant to several
dispositions in any one Fiscal Year;
(iv) sales or other dispositions of equipment that is obsolete, unused
or, in the judgment of the Borrower, no longer best used or useful in its
business or that of any Restricted Subsidiary;
(v) licenses of trademarks to the extent necessary to maintain or
protect such trademarks in jurisdictions outside the United States of
America;
(vi) sales or dispositions of Cash Equivalents;
(vii) licenses of trademarks to third parties in exchange for royalty
or other similar payments made on an arms-length basis for use in connection
with products not marketed under such trademarks as of the date hereof;
(viii) dispositions of Credit Card Accounts and related chattel
paper and general intangibles in connection with a Permitted Receivables
Securitization;
(ix) Sales of Investments permitted under Section 8.03; and
-------------
(x) so long as no Event of Default shall have then occurred and be
continuing or would result therefrom, transfer of cash or property in an
amount not to exceed $1,000,000 for each Fiscal Year to a charitable
foundation established by the Borrower or ATSC;
provided, that no disposition (other than transfers permitted by clause (ix)
or (x)) in excess of $1,000,000 shall be permitted unless the price to be
received therefor represents the then fair market value of the asset or
74
================================================================================
property sold at the time of such disposition and (other than in the case of
subleases or license arrangements) at least 80% of the price is to be paid in
cash at the closing of the disposition.
(b) Liens. The Borrower shall not, and shall not permit ATSC or any
-----
Restricted Subsidiary to, create, incur, assume or permit to exist, directly
or indirectly, any Lien on or with respect to any of its Property except:
(i) Liens securing the Obligations;
(ii) Liens upon the interest or title of a lessor or secured by a
lessor's interest under any lease under which the Borrower or any Restricted
Subsidiary is the lessee and the interest of the lessee under any lease under
which the Borrower or any Restricted Subsidiary is the lessor;
(iii) Customary Permitted Liens;
(iv) Liens granted by the Borrower or any Restricted Subsidiary
(including the interest of a lessor under a Capital Lease) and Liens on
Property existing at the time of acquisition thereof by the Borrower or any
Restricted Subsidiary securing Indebtedness permitted by Section 8.01(c),
----------------
provided that such Liens are limited to the assets financed with such
Indebtedness;
(v) Liens on Property of any Person existing at the time such Person
becomes a Restricted Subsidiary securing Indebtedness permitted by Section
-------
8.01;
- ----
(vi) Liens with respect to judgments or attachments which do not
result in an Event of Default or Potential Event of Default hereunder;
(vii) Permitted Existing Liens and any extensions, renewals and
replacements thereof so long as (i) the amount of the obligations secured
thereby is not increased in connection with any such extension, renewal or
replacement and (ii) such Lien is limited to the property subject thereto
prior to such extension, renewal or replacement;
(viii) Liens in respect of Indebtedness permitted pursuant to Section
-------
8.01(k); and
- -------
(ix) to the extent Indebtedness secured thereby is permitted to be
extended, renewed, replaced or refinanced, a future Lien upon any Property
which is subject to a Lien described in clause (vii) above, if such future
Lien attaches only to the same Property, secures only such permitted
extensions, renewals, replacements or refinancings and is of like quality,
character and extent.
8.03. Investments. The Borrower shall not, and shall not permit ATSC
or any Restricted Subsidiary to, make or own, directly or indirectly, any
Investment in any Person except:
(a) Investments by the Borrower or any Restricted Subsidiary in Cash
Equivalents;
75
================================================================================
(b) Investments by the Borrower or any Restricted Subsidiary
resulting from advances to ATSC to fund any of the items set forth in Section
-------
8.05(a);
- -------
(c) Investments by ATSC in the Borrower;
(d) Investments by ATSC, the Borrower and Restricted Subsidiaries in
the Borrower or any other Restricted Subsidiaries, provided that, after
giving effect to such Investment, the aggregate then outstanding amount of
all such Investments by the Borrower and the Subsidiary Guarantors (including
Investments in the nature of sales and transfers of assets for less than fair
market value and Accommodation Obligations) in Foreign Subsidiaries shall not
exceed $10,000,000, provided, further, that the conversion of any
Indebtedness owed to the Borrower or any Restricted Subsidiary by any Foreign
Subsidiary into equity of such Foreign Subsidiary shall not constitute an
additional Investment in such Foreign Subsidiary by the Borrower or such
Restricted Subsidiary for purposes of the limitation contained in the
immediately preceding proviso; notwithstanding the foregoing, no Investments
in Foreign Subsidiaries shall be made upon the occurrence and during the
continuance of an Event of Default;
(e) Investments in joint ventures (in the form of corporations,
partnerships or otherwise) and Unrestricted Subsidiaries in a maximum amount
not exceeding $25,000,000 at any one time outstanding; provided that no
Investments in joint ventures and Unrestricted Subsidiaries shall be made
upon the occurrence and during the continuation of an Event of Default;
(f) Investments not exceeding $10,000,000 at any one time outstanding
in respect of loans to senior executives and key employees of ATSC, the
Borrower or any Restricted Subsidiary; provided that no such Investments
shall be made upon the occurrence and during the continuation of an Event of
Default;
(g) Investments in the form of advance payments to suppliers not in
excess of an aggregate amount of $20,000,000 outstanding at any one time;
(h) Investments in the form of any residual interest participation in
connection with a Permitted Receivables Securitization;
(i) the Convertible Debentures Note;
(j) other Investments by the Borrower or any Restricted Subsidiary
not in excess of an aggregate amount of $2,500,000 outstanding at any one
time; and
(k) Investments in respect of Interest Rate Contracts or Foreign
Currency Exchange Contracts entered into in the ordinary course of business
and not for speculative purposes.
8.04. Accommodation Obligations. The Borrower shall not, and shall not
---------------------------
permit ATSC or any Restricted Subsidiary to, create or become or be liable,
directly or indirectly, with respect to any Accommodation Obligation except:
76
================================================================================
(a) guaranties resulting from endorsement of negotiable instruments
for collection in the ordinary course of business;
(b) obligations, warranties and indemnities, not relating to
Indebtedness of any Person, which have been or are undertaken or made in the
ordinary course of business and not for the benefit or in favor of an
Affiliate of the Borrower or such Subsidiary;
(c) guaranties of obligations of ATSC, the Borrower or any of its
Restricted Subsidiaries in connection with the leasing or financing of
materials handling equipment, computer equipment, furniture and fixtures in
the ordinary course of business;
(d) Accommodation Obligations arising in connection with the
Borrower's agreement to provide one or more Letters of Credit issued for the
benefit of any joint venture to the extent permitted by Section 8.03(e);
---------------
(e) with respect to ATSC, Accommodation Obligations arising in
connection with (i) the ATSC Guaranty (ii) the ATSC Pledge Agreement, (iii)
the ATSC Guarantee Agreements or (iv) Accommodation Obligations for
Indebtedness of the Borrower or its wholly-owned Restricted Subsidiaries
permitted to be incurred under Section 8.01;
------------
(f) Accommodation Obligations under the Subsidiary Guaranty and
Collateral Agreement; and
(g) guarantees by the Borrower of obligations of AnnTaylor Retail,
Inc., a Restricted Subsidiary of the Borrower, not relating to Indebtedness
(other than Indebtedness incurred in relation to clause (d) of the definition
of Indebtedness herein), to third parties with respect to retail operations
of AnnTaylor Retail, Inc., entered into on an arm's length basis and in the
ordinary course of business.
8.05. Restricted Payments. The Borrower shall not, and shall not
---------- --------
permit any of its Restricted Subsidiaries or ATSC, to declare or make any
Restricted Payment except:
(a) dividends paid and declared in any Fiscal Year by the Borrower to
ATSC to fund (i) income and franchise taxes payable in such Fiscal Year owed
by ATSC pursuant to the Tax Sharing Agreement dated as of July 12, 1989
between ATSC and the Borrower; (ii) other ordinary operating expenses of ATSC
not in excess of $500,000 in any Fiscal Year; and (iii) ATSC's share of
expenses incurred in connection with, any public offering of Common Stock;
(b) any Restricted Payment made by any Subsidiary on its capital
stock;
(c) payments by ATSC or the Borrower to acquire shares of Common
Stock from employees of ATSC, the Borrower or any Restricted Subsidiary in an
aggregate amount not exceeding $100,000 in any Fiscal Year;
(d) dividends paid and declared by the Borrower to ATSC to fund (i)
any redemption, retirement, sinking fund, or similar payment, purchase or
other acquisition for value, direct or indirect, of any shares of Common
77
================================================================================
Stock of ATSC now or hereafter outstanding or (ii) any payment or prepayment
of principal of, premium, if any, or interest on, and any redemption,
purchase, retirement or defeasance of, or sinking fund or similar payment
with respect to the Convertible Debentures; provided that (A) the aggregate
consideration paid pursuant to this clause (d) shall not exceed $50,000,000
per Fiscal Year and (B) immediately prior to and after giving effect thereto,
no Potential Event of Default or Event of Default shall have occurred and be
continuing; and
(e) payments of interest on the Convertible Debentures by ATSC so
long as no Potential Event of Default or Event of Default shall have occurred
and be continuing.
8.06. Conduct of Business. The Borrower shall not, and shall not
---------------------
permit any of its Restricted Subsidiaries to, engage in any business other
than (a) the business engaged in by the Borrower or such Subsidiary on the
date hereof; and (b) any business activities substantially similar or related
thereto.
8.07. Transactions with Affiliates. The Borrower shall not, and shall
------------------------------
not permit ATSC or any Restricted Subsidiary to, at any time after the
Effective Date directly or indirectly enter into or permit to exist any
transaction (including the purchase, sale, lease or exchange of any property
or the rendering of any service) with any of its Affiliates on terms that are
less favorable to it than those fair and reasonable terms that might be
obtained in a comparable arms-length transaction at the time; provided that
the foregoing restriction shall not apply to transactions among ATSC, the
Borrower and its wholly-owned Restricted Subsidiaries, customary fees paid to
members of the Board of Directors of the Borrower or ATSC or payments
permitted under Section 8.03(f) or the business contemplated by the joint
---------------
ventures permitted under Section 8.03(e).
---------------
8.08. Restriction on Fundamental Changes.
----------------------------------
(a) The Borrower shall not, and shall not permit any Restricted
Subsidiary to, enter into any merger or consolidation, or liquidate, wind-up
or dissolve (or suffer any liquidation or dissolution), discontinue its
business or convey, lease, sell, transfer or otherwise dispose of, in one
transaction or series of transactions, all or any substantial part of its
business or Property, whether now or hereafter acquired, except (i) as
otherwise permitted under Section 8.02(a), (ii) that any Restricted
-----------------
Subsidiary may merge into or convey, sell, lease or transfer all or
substantially all of its assets to, the Borrower or any other Restricted
Subsidiary (provided that if any such Restricted Subsidiary is a Subsidiary
Guarantor, the surviving entity of any such merger or the entity to which
such assets are conveyed, sold, leased or transferred must be the Borrower or
a Subsidiary Guarantor) and (iii) that nothing contained herein shall
prohibit the Borrower from dissolving or liquidating any Subsidiary if in the
reasonable opinion of the Borrower's senior management such dissolution or
liquidation has no reasonable likelihood of having a Material Adverse Effect.
(b) The Borrower shall not and shall not permit ATSC or any
Restricted Subsidiary to, amend its Certificate of Incorporation or By-Laws
in a manner that is in any way adverse to the rights of the Administrative
Agent and the Lenders hereunder.
78
================================================================================
8.09. ERISA. The Borrower shall not, and shall not permit any of its
-----
ERISA Affiliates to, do any of the following to the extent that such act or
failure to act would in the aggregate, after taking into account any other
such acts or failures to act, have a Material Adverse Effect.
(a) Engage, or permit any ERISA Affiliate to engage, in any
prohibited transaction described in Sections 406 of ERISA or 4975 of the Code
for which a statutory or class exemption is not available or a private
exemption has not been previously obtained from the DOL;
(b) permit to exist any accumulated funding deficiency (as defined in
Sections 302 of ERISA and 412 of the Code), whether or not waived;
(c) terminate, or permit any ERISA Affiliate to terminate, any
Benefit Plan which would result in any liability of the Borrower or any ERISA
Affiliate under Title IV of ERISA;
(d) fail, or permit any ERISA Affiliate to fail, to make any
contribution or payment to any Multiemployer Plan which the Borrower or any
ERISA Affiliate may be required to make under any agreement relating to such
Multiemployer Plan, or any law pertaining thereto;
(e) fail, or permit any ERISA Affiliate to fail, to pay any required
installment or any other payment required under Section 412 of the Code on or
before the due date for such installment or other payment; or
(f) amend, or permit any ERISA Affiliate to amend, a Plan resulting
in an increase in current liability for the plan year such that the Borrower
or any ERISA Affiliate is required to provide security to such Plan under
Section 401(a)(29) of the Code.
8.10. Sales and Leasebacks. The Borrower shall not, and shall not
----------------------
permit any Restricted Subsidiary to, become liable, directly or by way of any
Accommodation Obligation, with respect to any lease, whether an Operating
Lease or a Capital Lease, of any Property whether now owned or hereafter
acquired, (a) which the Borrower or any Restricted Subsidiary has sold or
transferred or is to sell or transfer to any other Person, or (b) which the
Borrower or any such Restricted Subsidiary intends to use for substantially
the same purposes as any other Property which has been or is to be sold or
transferred by that entity to any other Person in connection with such lease.
8.11. Convertible Debentures and other Indebtedness.
----------------------------------------------
(a) No Change. The Borrower shall not, and shall not permit ATSC to,
---------
amend, supplement or modify the terms of the Convertible Debentures or the
Convertible Debentures Note (i) which relate to subordination, interest
(including options to pay in kind), principal, tenor, extension of maturity,
payments in respect of redemptions, repurchases, sinking fund, principal,
interest or other payments, or the acceleration thereof or any rescission of
acceleration or (ii) except if necessary to comply with the provisions of the
Trust Indenture Act of 1939 or (iii) by making more restrictive, or adding,
covenants, breaches, defaults, or events of default, or (iv) by shortening
79
================================================================================
cure periods, or (v) if the benefits to the Borrower or the Administrative
Agent or the Lenders would thereby be in any material respect limited,
restricted or diminished.
(b) Notices. The Borrower shall deliver to the Administrative Agent (i)
-------
a copy of each notice or other written communication delivered by or on half of
the Borrower to any trustee under the Convertible Debenture Indenture, such
delivery to be made at the same time and by the same means as such notice or
other written communication is delivered to such Person and (ii) a copy of each
notice or other written communication received by the Borrower from the trustee
under the Convertible Debenture Indenture, such delivery to be made promptly
after such notice or other written communication is received by the Borrower.
8.12. Margin Regulations. No portion of the proceeds of any credit
-------------------
extended under this Agreement shall be used in any manner which might cause
the extension of credit or the application of such proceeds to violate
Regulation T, Regulation U or Regulation X or any other regulation of the
Federal Reserve Board or to violate the Securities Exchange Act or the
Securities Act, in each case as in effect on the date or dates of such
Borrowing and such use of proceeds.
8.13. Change of Fiscal Year. The Borrower shall not change its Fiscal
---------------------
Year.
8.14. Subsidiaries. (a) The Borrower shall not permit, without the
------------
consent of the Administrative Agent, any Unrestricted Subsidiary to enter
into any Accommodation Obligation with respect to any Indebtedness of ATSC,
the Borrower or any Restricted Subsidiary or to grant or permit to exist any
Lien on its Property to secure any such Indebtedness.
(b) The Borrower shall not, and shall not permit any Restricted
Subsidiary to, create or otherwise become effective any consensual
encumbrance or restriction of any kind on the ability of any Restricted
Subsidiary to pay dividends or make any other distribution, in respect of its
stock or make any other Restricted Payment, pay any Indebtedness or other
Obligation owed to the Borrower or any other Restricted Subsidiary, make
loans or advances or other Investments in the Borrower or any other
Restricted Subsidiary or sell, transfer or otherwise convey any of its
Property to the Borrower or any other Restricted Subsidiary.
8.15. Consignment of Title Documents. At any time at the request of
--------------------------------
the Administrative Agent or the Requisite Lenders after the occurrence and
during the continuation of an Event of Default, the Borrower shall deliver or
cause to be delivered to the Administrative Agent for the benefit of the
Lenders any title or similar documents (including, without limitation,
warehouse receipts) in respect of goods covered or originally covered by a
Letter of Credit (including any Existing Letter of Credit).
80
================================================================================
ARTICLE IX
Financial Covenants
-------------------
The Borrower covenants and agrees that, on and after the date hereof
and so long as any Lender has any Commitment hereunder or any Letter of
Credit shall be outstanding hereunder and until payment in full of all the
Obligations:
9.01. Minimum Tangible Net Worth. The Borrower shall not permit
-------------------------------
Tangible Net Worth at the end of any fiscal quarter to be less than the sum
of (a) $250,000,000 plus (b) 50% of Net Income for each fiscal quarter ending
after February 3, 2001 (without deducting from such cumulative amount the
amount of any net loss incurred in any such fiscal quarter except
extraordinary losses associated with the redemption or repurchase of
Indebtedness).
9.02. Leverage Ratio. As of the end of each period of four consecutive
---------------
fiscal quarters ending with the applicable fiscal quarter set forth below,
the Borrower shall not permit the ratio of (a) the sum of (i) Funded Debt
plus (ii) the product of (A) Rental Expense for such period times (B) six to
(b) EBITDAR for such period to be greater than the ratio set forth opposite
such fiscal quarter:
Ending Quarter Maximum Ratio
-------------- -------------
2nd Quarter, Fiscal Year 2001 3.50 to 1.00
3rd Quarter, Fiscal Year 2001 3.50 to 1.00
4th Quarter, Fiscal Year 2001 3.25 to 1.00
1st Quarter, Fiscal Year 2002 3.25 to 1.00
2nd Quarter, Fiscal Year 2002 3.25 to 1.00
3rd Quarter, Fiscal Year 2002 3.25 to 1.00
4th Quarter, Fiscal Year 2002 3.25 to 1.00
1st Quarter, Fiscal Year 2003
and each fiscal quarter thereafter 3.00 to 1.00
9.03. Minimum Fixed Charge Coverage Ratio. The Borrower shall not
----------------------------------------
permit the Fixed Charge Coverage Ratio, as determined for and at the end of
each period of four consecutive fiscal quarters ending with the applicable
fiscal quarter set forth below, to be less than the ratio set forth opposite
such fiscal quarter:
Ending Quarter Minimum Ratio
--------------- --------------
2nd Quarter, Fiscal Year 2001 1.15 to 1.00
3rd Quarter, Fiscal Year 2001 1.15 to 1.00
4th Quarter, Fiscal Year 2001 1.25 to 1.00
1st Quarter, Fiscal Year 2002 1.30 to 1.00
2nd Quarter, Fiscal Year 2002 1.30 to 1.00
3rd Quarter, Fiscal Year 2002 1.35 to 1.00
4th Quarter, Fiscal Year 2002 1.35 to 1.00
1st Quarter, Fiscal Year 2003
and each fiscal quarter thereafter 1.50 to 1.00
81
================================================================================
ARTICLE X
Events of Default; Right and Remedies
-------------------------------------
10.01.Events of Default. Each of the following occurrences shall
-----------------
constitute an Event of Default under this Agreement:
(a) Failure to Make Payments When Due. (i) The Borrower shall fail to
---------------------------------
pay when due any principal of any Loan or Reimbursement Obligation, or
(ii) the Borrower shall fail to pay any interest on any Loan or
Reimbursement Obligation, or any other Obligation within the earlier of (A)
five Business Days after the same shall have become due or (B) in the event
that a principal or interest payment shall be due undser the terms of the
Convertible Debenture Indenture within such five Business Day period, one
Business Day prior to such payment date in respect of the Convertible
Debentures if the payments are due on the same date.
(b) Breach of Certain Covenants. The Borrower shall fail duly and
-----------------------------
punctually to perform or observe (or cause ATSC or any Restricted Subsidiary
to perform or observe) any agreement, covenant or obligation binding on the
Borrower, ATSC or any Restricted Subsidiary under Section 6.01(e)(A), Article
---------------------------
VIII or Article IX or binding on the Borrower, ATSC or any Subsidiary
- ---- ------------
Guarantor under any section of the Collateral Documents for which a grace
period is provided (which failure continues after the expiration of any grace
period specified under such section of the Collateral Documents).
(c) Breach of Representation or Warranty. Any representation or
----------------------------------------
warranty made or deemed made by the Borrower, ATSC or any Subsidiary
Guarantor to the Administrative Agent, any Issuing Bank or any Lender herein
or in any of the other Loan Documents or in any written statement or
certificate at any time given by the Borrower, ATSC or any Subsidiary
Guarantor pursuant to any of the Loan Documents shall be false or misleading
in any material respect on the date as of which made or deemed made.
(d) Other Defaults. Either the Borrower, ATSC or any Restricted
---------------
Subsidiary shall fail duly and punctually to perform or observe any
agreement, covenant or obligation arising under this Agreement or under any
of the other Loan Documents (except those described in Sections 10.01(a), (b)
----------------------
and (c)), and such failure shall continue for 20 days (or, in the case of
- --------
Loan Documents other than this Agreement, any longer period of grace
expressly set forth therein).
(e) Default as to Other Indebtedness. ATSC, the Borrower or any
-----------------------------------
Restricted Subsidiary shall fail to make any payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise)
on any Indebtedness of ATSC, the Borrower or any such Subsidiary, other than
an Obligation, if the aggregate amount of all such Indebtedness is $5,000,000
or more; or any breach, default or event of default shall occur, or any other
event shall occur or condition shall exist, under any instrument, agreement
or indenture pertaining thereto, if the effect thereof is to accelerate, or
permit the holder(s) of such Indebtedness to accelerate, the maturity of any
82
================================================================================
such Indebtedness; or any such Indebtedness shall be declared to be due and
payable or required to be prepaid (other than by a regularly scheduled
required prepayment prior to the stated maturity thereof); or the holder of
any Lien (other than Liens upon property leased to ATSC, the Borrower or such
Restricted Subsidiary which were created by the landlord prior to the
commencement of the lease), in any amount, shall commence foreclosure of such
Lien upon property of ATSC, the Borrower or any Restricted Subsidiary having
a value in excess of $5,000,000 in the aggregate.
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc. (i) An
----------------------------------------------------------
involuntary case shall be commenced against the Borrower or ATSC or any
Restricted Subsidiary, and the petition shall not be dismissed within 60 days
after commencement of the case, or a court having jurisdiction in the
premises shall enter a decree or order for relief in respect of the Borrower
or ATSC or any Restricted Subsidiary in an involuntary case, under any
applicable bankruptcy, insolvency or other similar law now or hereinafter in
effect; or any other similar relief shall be granted under any applicable
federal, state or foreign law.
(ii) 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 the Borrower or ATSC or
any Restricted Subsidiary, or over all or a substantial part of the property
of the Borrower or ATSC or any Restricted Subsidiary, shall be entered; or an
interim receiver, trustee or other custodian of the Borrower or ATSC or any
Restricted Subsidiary, or of all or a substantial part of the property of the
Borrower or ATSC or any Restricted Subsidiary, shall be appointed or a
warrant of attachment, execution or similar process against any substantial
part of the property of the Borrower or ATSC or any Restricted Subsidiary,
shall be issued and any such event shall not be stayed, vacated, dismissed,
bonded or discharged within 60 days of entry, appointment or issuance.
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. The Borrower
-----------------------------------------------------
or ATSC or any Restricted Subsidiary shall have an order for relief entered
with respect to it or commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
shall consent to the entry of an order for relief in an involuntary case, or
to the conversion of an involuntary case to a voluntary case, under any such
law, or shall consent to the appointment of or taking of possession by a
receiver, trustee or other custodian for all or a substantial part of its
property; the Borrower or ATSC or any Restricted Subsidiary shall make any
assignment for the benefit of creditors or shall be unable or generally fail,
or admit in writing its inability, to pay its debts as such debts become due;
or the Board of Directors (or any committee thereof) of the Borrower or ATSC
or any Restricted Subsidiary adopts any resolution to approve any of the
foregoing.
(h) Judgments and Attachments. Any money judgment (other than a
---------------------------
money judgment covered by insurance, but only if the insurer has admitted
liability with respect to such money judgment), writ or warrant of
attachment, or similar process involving in any case an amount in excess of
$5,000,000 shall be entered or filed against the Borrower or ATSC or any
Restricted Subsidiary or any of their Property, and shall remain
undischarged, unvacated, unbonded or unstayed for a period of 60 days.
83
================================================================================
(i) Dissolution. Any order, judgment or decree shall be entered
-----------
against the Borrower or ATSC or any Restricted Subsidiary decreeing its
involuntary dissolution or split-up and such order shall remain undischarged
and unstayed for a period in excess of 60 days; or the Borrower or ATSC or
any Restricted Subsidiary shall otherwise dissolve or cease to exist except
as permitted by Section 8.08.
------------
(j) Collateral Documents; Failure of Security or Subordination. For
-------------------------------------------------------------
any reason other than a release of Liens or the failure of the Administrative
Agent and the Lenders to take any action unilaterally available to them to
maintain the perfection of the Liens created in favor of the Administrative
Agent pursuant to this Agreement and the Collateral Documents, any Collateral
Document ceases to be in full force and effect or any Lien intended to be
created thereby ceases to be or is not valid and perfected; or any Lien in
favor of the Administrative Agent contemplated by this Agreement or any
Collateral Document, or the subordination provisions of the Convertible
Debentures shall, at any time, be invalidated or otherwise cease to be in
full force and effect; or any such Lien or any Obligation shall be
subordinated or shall not have the priority contemplated by this Agreement,
the Collateral Documents or such subordination provisions, for any reason.
(k) Change in Control. (i) Any Change in Control shall occur or (ii)
-----------------
ATSC shall cease to own all of the outstanding equity Securities of the
Borrower.
(l) ERISA Liabilities. Any Termination Event occurs which will or is
------------------
reasonably likely to subject either the Borrower or an ERISA Affiliate to a
liability which will or is reasonably expected to have a Material Adverse
Effect.
An Event of Default shall be deemed "continuing" until cured or waived
in writing in accordance with Section 12.08.
-------------
10.02.Rights and Remedies.
-------------------
(a) Acceleration. Upon the occurrence of any Event of Default
------------
described in Section 10.01(f) or 10.01(g) with respect to the Borrower, the
----------------------------
Commitments shall automatically and immediately terminate and the unpaid
principal amount of and any and all accrued interest on the Loans and all
Letter of Credit Obligations shall automatically become immediately due and
payable, with all additional interest from time to time accrued thereon and
without presentment, demand, or protest or other requirements of any kind
(including valuation and appraisement, diligence, presentment, notice of
intent to demand or accelerate and of acceleration), all of which are hereby
expressly waived by the Borrower, and the obligation of each Lender to make
any Loan hereunder and of any Issuing Bank to issue any Letter of Credit
shall thereupon terminate; and upon the occurrence and during the continuance
of any other Event of Default, the Administrative Agent shall at the request,
or may with the consent, of the Requisite Lenders, by written notice to the
Borrower, (i) declare that the Commitments are terminated, whereupon the
Commitments and the obligation of each Lender to make any Loan hereunder and
of any Issuing Bank to issue any Letter of Credit shall immediately
terminate, and (ii) declare the unpaid principal amount of and any and all
accrued and unpaid interest on the Loans and all Letter of Credit Obligations
to be, and the same shall thereupon be, immediately due and payable with all
84
================================================================================
additional interest from time to time accrued thereon and without
presentment, demand, or protest or other requirements of any kind (including
valuation and appraisement, diligence, presentment, notice of intent to
demand or accelerate and of acceleration), all of which are hereby expressly
waived by the Borrower.
(b) Deposit for Letters of Credit. In addition, upon demand by the
------------------------------
Requisite Lenders after the occurrence and during the continuance of any
Event of Default, the Borrower shall deposit with the Administrative Agent
for the benefit of such Issuing Bank with respect to each Letter of Credit
issued by it then outstanding, cash or Cash Equivalents in an amount equal to
the greatest amount for which such Letter of Credit may be drawn. Such
deposit shall be held by the Administrative Agent for the benefit of such
Issuing Bank as security for, and to provide for the payment of, the
Reimbursement Obligations. Pending the application of such deposit to
payment of the Reimbursement Obligations, the Administrative Agent may invest
such deposit in an open account or similar immediately available savings
deposit and all interest accrued thereon shall be held with such deposit as
additional security for the Reimbursement Obligations.
(c) Rescission. If at any time after acceleration of the maturity of
----------
the Loans, the Borrower shall pay all arrears of interest and all payments on
account of principal of the Loans and Reimbursement Obligations which shall
have become due otherwise than by acceleration (with interest on principal
and on overdue interest, at the rates specified in this Agreement) and all
Events of Default and Potential Events of Default (other than nonpayment of
principal of and accrued interest on the Loans due and payable solely by
virtue of acceleration) shall be remedied or waived pursuant to Section
-------
12.08, then by written notice to the Borrower, the Requisite Lenders may
- -----
elect, in the sole discretion of such Requisite Lenders, to rescind and annul
the acceleration and its consequences and thereupon shall release any deposit
made pursuant to Section 10.02(b); provided, however, that no rescission
-----------------
shall occur after the earlier of 30 days after the date of acceleration or
any Event of Default specified in paragraph (f) or (g) of Section 10.01. No
--------------
action pursuant to this paragraph (c) shall affect any subsequent Event of
Default or Potential Event of Default or impair any right or remedy
consequent thereon. The provisions of the preceding sentence are intended
merely to bind the Lenders to a decision which may be made at the election of
the Requisite Lenders; they are not intended to benefit the Borrower and do
not give the Borrower the right to require the Lenders to rescind or annul
any acceleration hereunder, even if the conditions set forth herein are met.
85
================================================================================
ARTICLE XI
The Administrative Agent
------------------------
11.01.Appointment and Authorization.
-----------------------------
(a) Each Lender and Issuing Bank hereby irrevocably (subject to
Section 11.09) appoints, designates and authorizes the Administrative Agent
- --------------
to take such action on its behalf under the provisions of this Agreement and
each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained elsewhere
in this Agreement or in any other Loan Document, the Administrative Agent
shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have
any fiduciary relationship with any Lender or participant, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise
exist against the Administrative Agent. Without limiting the generality of
the foregoing sentence, the use of the term "agent" herein and in the other
Loan Documents with reference to the Administrative Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. Instead, such term is used merely as
a matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.
(b) Each Issuing Bank shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated therewith
until such time (and except for so long) as the Administrative Agent may
agree at the request of the Requisite Lenders to act for such Issuing Bank
with respect thereto; provided, however, that the Issuing Bank shall have all
--------- -------
of the benefits and immunities (i) provided to the Administrative Agent in
this Article XI with respect to any acts taken or omissions suffered by the
----------
Issuing Bank in connection with Letters of Credit issued by it or proposed to
be issued by it and the application and agreements for letters of credit
pertaining to the Letters of Credit as fully as if the term "Administrative
Agent" as used in this Article XI included the Issuing Bank with respect to
----------
such acts or omissions, and (ii) as additionally provided herein with respect
to the Issuing Bank.
11.02.Delegation of Duties. The Administrative Agent may execute
--------------------
any of its duties under this Agreement or any other Loan Document by or
through agents, employees or attorneys-in-fact and shall be entitled to
advice of counsel and other consultants or experts concerning all matters
pertaining to such duties. The Administrative Agent shall not be responsible
for the negligence or misconduct of any agent or attorney-in-fact that it
selects in the absence of gross negligence or willful misconduct.
11.03.Liability of Administrative Agent. None of the
-----------------------------------------
Agent-Related Persons shall (a) be liable for any action taken or omitted to
be taken by any of them under or in connection with this Agreement or any
other Loan Document or the transactions contemplated hereby (except for its
own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to any of
86
================================================================================
the Lenders, participants or Issuing Banks for any recital, statement,
representation or warranty made by ATSC, Borrower or any Subsidiary or
Affiliate of ATSC or the Borrower, or any officer thereof, contained in this
Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by
the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document,
or for any failure of ATSC, the Borrower or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender, participant
or Issuing Bank to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the Properties, books or
records of ATSC, the Borrower or any of the Subsidiaries or Affiliates of
ATSC or the Borrower.
11.04.Reliance by Administrative Agent.
-------------------------------
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, statement or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to any Loan Party),
independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Requisite
Lenders as it deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request or consent of the
Requisite Lenders or all Lenders, if required hereunder and such request and
any action taken or failure to act pursuant thereto shall be binding upon all
of the Lenders, participants and the Issuing Banks. Where this Agreement
expressly permits or prohibits an action unless the Requisite Lenders
otherwise determine, the Administrative Agent shall, and in all other
instances, the Administrative Agent may, but shall not be required to,
initiate any solicitation for the consent or a vote of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has executed this Agreement shall
------------
be deemed to have consented to, approved or accepted or to be satisfied with,
each document or other matter either sent by the Administrative Agent to such
Lender for consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or satisfactory to
such Lender.
11.05.Notice of Default. The Administrative Agent shall not be
------------------
deemed to have knowledge or notice of the occurrence of any Potential Event
of Default or Event of Default, except with respect to defaults in the
payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless the
87
================================================================================
Administrative Agent shall have received written notice from a Lender or the
Borrower referring to this Agreement, describing such Potential Event of
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice,
the Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Potential
Event of Default or Event of Default as shall be requested by the Requisite
Lenders; provided, however, that unless and until the Administrative Agent
shall have received any such request, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action,
with respect to such Potential Event of Default or Event of Default as it
shall deem advisable or in the best interest of the Lenders.
11.06.Credit Decision. Each Lender expressly acknowledges that
----------------
none of the Agent-Related Persons has made any representation or warranty to
it and that no act by the Administrative Agent hereinafter taken, including
any consent to and acceptance of any assignment or review of the affairs of
ATSC and the Borrower and its Subsidiaries shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender as to
any matter, including whether Agent-Related Persons have disclosed material
information in their possession. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of ATSC and the Borrower and its Subsidiaries, and all
applicable bank regulatory laws relating to the transactions contemplated
thereby, and made its own decision to enter into this Agreement and extend
credit to the Borrower hereunder. Each Lender also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking
or not taking action under this Agreement and the other Loan Documents, and
to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly herein required to be furnished to the Lenders by the
Administrative Agent, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Borrower or its Subsidiaries which may
come into the possession of any of the Agent-Related Persons.
11.07.Indemnification. Whether or not the transactions
---------------
contemplated hereby shall be consummated, the Lenders shall indemnify upon
demand the Agent-Related Persons (to the extent not reimbursed by or on
behalf of the Borrower and without limiting the obligation of the Borrower to
do so), ratably from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses and
disbursements of any kind whatsoever which may at any time (including at any
time following the repayment of the Loans and the termination or resignation
of the related Administrative Agent) be imposed on, incurred by or asserted
against any such Person any way relating to or arising out of this Agreement
or any document contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
any such Person under or in connection with any of the foregoing; provided,
88
================================================================================
however, that no Lender shall be liable for the payment to the Agent-Related
Persons of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Person's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its ratable share of any costs or out-of-pocket
expenses (including legal fees and the allocated cost of staff counsel)
incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any
other Loan Document, or any document contemplated by or referred to herein to
the extent that the Administrative Agent is not reimbursed for such expenses
by or on behalf of the Borrower. Without limiting the generality of the
foregoing, if the IRS or any other Governmental Authority of the United
States of America or other jurisdiction asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid to or
for the account of any Lender (because the appropriate form was not
delivered, was not properly executed, or because such Lender failed to notify
the Administrative Agent of a change in circumstances which rendered the
exemption from, or reduction of, withholding tax ineffective, or for any
other reason) such Lender shall indemnify the Administrative Agent fully for
all amounts paid, directly or indirectly, by the Administrative Agent as tax
or otherwise, including penalties and interest, and including any taxes
imposed by any jurisdiction on the amounts payable to the Administrative
Agent under this Section 11.07, together with all costs and expenses and
attorneys' fees (including legal fees and the allocated cost of staff
counsel). The obligation of the Lenders in this Section shall survive the
payment of all Obligations hereunder.
11.08.Administrative Agent as Individual. Bank of America and
------------------------------------
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business
with ATSC and the Borrower and its Subsidiaries and Affiliates as though Bank
of America were not the Administrative Agent or the Issuing Bank hereunder
and without notice to or consent of the Lenders. The Lenders acknowledge
that, pursuant to such activities, Bank of America or its Affiliates may
receive information regarding any Loan Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of
such Loan Party or such Affiliate) and acknowledge that the Administrative
Agent shall be under no obligation to provide such information to them. With
respect to its Loans, Bank of America shall have the same rights and powers
under this Agreement as any other Lender and may exercise such rights and
powers as though it were not the Administrative Agent or the Issuing Bank,
and the terms "Lender" and "Lenders" shall include Bank of America in its
individual capacity.
11.09.Successor Administrative Agent. The Administrative Agent
--------------------------------
may resign as Administrative Agent upon 30 days' notice to the Lenders. If
the Administrative Agent shall resign as Administrative Agent under this
Agreement, the Requisite Lenders shall appoint from among the Lenders a
successor administrative agent for the Lenders which successor administrative
agent shall be consented to by the Borrower at all times other than during
the existence of an Event of Default (which consent of the Borrower shall not
be unreasonably withheld or delayed). If no successor administrative agent
is appointed prior to the effective date of the resignation of the
89
================================================================================
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders and the Borrower, a successor agent from among the Lenders.
Upon the acceptance of its appointment as successor agent hereunder, such
successor agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent and the term "Administrative Agent" shall mean
such successor agent and the retiring Administrative Agent's appointment,
powers and duties as Administrative Agent shall be terminated. After any
retiring Administrative Agent's resignation hereunder as Administrative
Agent, the provisions of this Article XI and Sections 12.03 and 12.04 shall
inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement. If no successor
agent has accepted appointment as Administrative Agent by the date which is
30 days following a retiring Administrative Agent's notice of resignation,
the retiring Administrative Agent's resignation shall nevertheless thereupon
become effective and the Lenders shall perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Requisite
Lenders appoint a successor agent as provided for above.
11.10.The Arranger. The Arranger shall have no right, power,
-------------
obligation, liability, responsibility or duty under this Agreement other than
the right to receive the fee referred to in Section 2.03(a) and the right to
----------------
indemnity under Section 12.04.
-------------
11.11.Syndication Agents, Co-Agents and Documentation Agent.
----------------------------------------------------------
None of the Lenders identified on the facing page or signature pages of this
Agreement as a "Syndication Agent," "Co-Agent" or "Documentation Agent" shall
have any right or power, obligations, liability, responsibility or duty under
this Agreement other than those applicable to all Lenders as such. Without
limiting the foregoing, none of the Lenders so identified shall have or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders
so identified in deciding to enter into this Agreement or in taking or not
taking action hereunder.
11.12.Collateral Matters. (a) Each Lender and Issuing Bank
-------------------
authorizes and directs the Administrative Agent to enter into the Collateral
Documents for the benefit of the Lenders and the Issuing Banks. Each Lender
and Issuing Bank agrees that any action taken by the Administrative Agent or
the Requisite Lenders in accordance with the provisions of this Agreement or
the Collateral Documents, and the exercise by the Administrative Agent or the
Requisite Lenders of the powers set forth herein or therein, together with
such other powers as are reasonably incidental thereto, shall be authorized
and binding upon all of the Lenders and the Issuing Banks.
(b) The Administrative Agent is hereby authorized on behalf of all of
the Lenders and the Issuing Banks, without the necessity of any notice to or
further consent from any Lender or Issuing Bank from time to time prior to an
Event of Default, to take any action with respect to any Collateral or
Collateral Documents which may be necessary to perfect and maintain perfected
the Liens upon the Collateral granted pursuant to the Collateral Documents.
(c) Each Lender and Issuing Bank hereby irrevocably authorize the
Administrative Agent to release any Lien granted to or held by the
Administrative Agent upon any Collateral upon (i) any sale of such Collateral
permitted under this Agreement (or any waiver hereof) and (ii) termination of
90
================================================================================
the Commitments and payment and satisfaction of all Loans, Reimbursement
Obligations, other Letter of Credit Obligations (whether or not due) and all
other Obligations which have matured and which the Administrative Agent has
been notified in writing are then due and payable.
11.13.Relations Among Lenders. (a) Each Lender agrees that it
--------------------------
will not take any action, nor institute any actions or proceedings, against
the Borrower or any other obligor hereunder or any other Loan Document or
with respect to any Collateral, without the prior written consent of the
Requisite Lenders.
(b) The Lenders are not partners or co-venturers, and no Lender shall
be liable for the acts or omissions of, or (except as otherwise set forth
herein in case of the Administrative Agent) authorized to act for, any other
Lender.
91
================================================================================
ARTICLE XII
Miscellaneous
-------------
12.01.Assignments and Participations. (a) The provisions of this
-------------------------------
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except
that the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and
any attempted assignment or transfer by the Borrower without such consent
shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby and, to the extent
expressly contemplated hereby, the Indemnitees) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
(b) At any time after the Effective Date, each Lender may assign to
one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment, Loans or
interest in the Letters of Credit); provided, that (i) each such assignment
in respect of Commitments or Loans shall cover the same percentage of such
Lender's Commitment, Loans and Letter of Credit Obligations, (ii) unless the
Administrative Agent and the Borrower otherwise consent, the aggregate amount
of the Commitment of the assigning Lender being assigned pursuant to each
such assignment (determined as of the date of the Assignment and Acceptance
with respect to such assignment) shall in no event be less than $5,000,000
and shall be an integral multiple of $100,000 (unless the assigning Lender's
Commitment, Loans and Letter of Credit Obligations are less than $5,000,000,
in which case the assignment may be in the amount of such Commitment, Loans
and Letter of Credit Obligations) provided that assignments between Lenders
shall have no minimum amount, (iii) except in respect of assignments between
Lenders and their Affiliates or any assignment by a Lender in connection with
the sale of all or substantially all of its assets, the Borrower shall
consent (which consent shall not be unreasonably withheld and shall be deemed
to have been given if the Borrower has not expressly refused such consent
within five Business Days after notice thereof has been delivered by the
Assigning Lender (through the Administrative Agent)) and the Administrative
Agent and the Issuing Banks shall consent to such assignment (which shall not
be unreasonably withheld) and (iv) the parties to each such assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with processing and recordation fee of $3,500. Subject to
acceptance and recordation thereof by the Administrative Agent pursuant to
subsection (d) of this Section, from and after the effective date specified
in each Assignment and Acceptance, (A) the Eligible Assignee thereunder shall
be a party hereto and, to the extent of the interest assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a
Lender hereunder as fully as if such assignee had been named as a Lender in
accordance with the terms of this Agreement and (B) the Lender assignor
thereunder shall, to the extent of the interest assigned by it pursuant to
such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement. Notwithstanding any provision of this
Section 12.01, the consent of the Borrower shall not be required for any
- --------------
assignment that occurs when an Event of Default shall have occurred and be
continuing with respect to the Borrower.
92
================================================================================
(c) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) the assignment
made under such Assignment and Acceptance is made without recourse and, other
than as provided in such Assignment and Acceptance, such assigning Lender
makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or any other Loan Document or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other Loan Document or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under any Loan Document or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements delivered pursuant to Article VI and such other Loan Documents and
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
delegated to the Administrative Agent by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform in accordance with their terms all of
the obligations which by the terms of this Agreement are required to be
performed by it as a Lender; and (vii) such an assignee is an Eligible
Assignee.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender, the Administrative Agent shall, if such Assignment and
Acceptance has been properly completed and is in substantially the form of
Exhibit 12.01 and if the conditions for the assignment referred to in the
- --------------
Assignment and Acceptance set forth in Section 12.01(a) have been met, (i)
-----------------
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and the Administrative Agent's Loan Account and (iii)
give prompt notice thereof to the Borrower and the other Lenders. The
Administrative Agent, on behalf of the Borrower, shall maintain at the
address of the Administrative Agent referred to in Section 12.10 a copy of
--------------
each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
the Commitments of, and principal amounts of the Loans owing to, each Lender
from time to time whether or not evidenced by a Note. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders shall treat each Person
whose name is recorded in the Register as the owner of a Loan or other
obligation hereunder for all purposes of this Agreement and the other Loan
Documents, notwithstanding any notice to the contrary. Any assignment of any
Loan or other obligation hereunder shall be effective only upon appropriate
entries with respect thereto being made in the Register. Any assignment or
transfer of all or part of a Loan evidenced by a Note shall be registered on
the Register only upon surrender for registration of assignment or transfer
of the Note evidencing such Loan, accompanied by a duly executed Assignment
and Acceptance, and thereupon one or more new Notes in the same aggregate
93
================================================================================
principal amount shall be issued to the designated assignee and the old Notes
shall be returned by the Administrative Agent to the Borrower marked
"cancelled." The Register shall be available for inspection by the Borrower
or any Lender at any reasonable time and from time to time upon reasonable
prior notice.
(e) Each Lender may sell participations to one or more banks or other
entities (a "Participant") as to all or a portion of its rights and
obligations under this Agreement (including all or a portion of its
Commitment, the Loans owing to it, and the Letter of Credit Obligations);
provided, that (i) such Lender's obligations under this Agreement (including
its Commitment) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
with regard to any and all payments to be made under this Agreement, (iv) the
holder of any such participation shall not be entitled to voting rights under
this Agreement; provided, however, that the participation agreement between a
Lender and any of its participants may provide that such Lender will obtain
the approval of such participant prior to any amendment or waiver of any
provisions of this Agreement which would (A) extend the Final Maturity Date
of any Loan, (B) reduce the interest rate or any fees hereunder payable in
respect of any Loan or Commitment, or (C) increase the Commitment of the
Lender granting the participation if such increase affects such participant,
and (v) the sale of any such participations which require the Borrower to
file a registration statement with the Commission or under the securities
regulation laws of any state shall not be permitted.
(f) A Participant shall be entitled to the benefits of Sections
--------
2.02(f), 2.07(d), 2.08 and 2.09 as though it were also a Lender hereunder;
- ---------------------------------
provided that no Participant shall be entitled to receive any payment or
compensation in excess of that to which such Participant's selling Lender
would have been entitled with respect to the amount of the Participation if
such Lender had not sold such Participation.
12.02.Assignments to Federal Reserve Banks. Notwithstanding any
-------------------------------------
other provision set forth in this Agreement, any Lender may at any time
assign or pledge all or any portion of its Loans and its Note to secure
obligations of such Lender, including any pledge or assignment to secure
obligations of such Lender to any Federal Reserve Bank as collateral
security pursuant to Regulation A and any Operating Circular issued by such
Federal Reserve Bank. No such assignment shall release the assigning Lender
from its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
12.03.Expenses.
---------
(a) Generally. Whether or not any Funding Date shall have occurred,
---------
the Borrower agrees upon demand to pay, or reimburse the Administrative Agent
for, all the Administrative Agent's and any of its Affiliates' reasonable
costs and expenses of every type and nature (including the reasonable fees,
expenses and disbursements of counsel to the Administrative Agent (including
the costs and expenses of one outside counsel and, without duplication, the
allocated costs of in-house counsel)) and all fees, taxes (except income and
94
================================================================================
franchise taxes), assessments and duties incurred by the Administrative Agent
or its Affiliates in connection with (i) the negotiation, preparation and
execution of this Agreement (including the satisfaction or attempted
satisfaction of any of the conditions set forth in Article IV), the
Collateral Documents and the other Loan Documents and the making of the Loans
hereunder; (ii) the administration of this Agreement, the Loan Documents, the
Loans and the Collateral; and (iii) the protection, collection or enforcement
of any of the Obligations or the Collateral.
(b) After Default. The Borrower further agrees to pay, or reimburse
---------------
the Administrative Agent, the Issuing Banks and the Lenders for, all
out-of-pocket costs and expenses, including the reasonable fees and
disbursements of counsel to the Administrative Agent, the Lenders and the
Issuing Banks (including, without duplication, the allocated cost of staff
counsel) and also including all costs of settlement after the occurrence of
an Event of Default, (i) in enforcing any Obligation or in foreclosing
against the Collateral or exercising or enforcing any other right or remedy
available by reason of such Event of Default; (ii) in connection with any
refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a "work-out" or in any insolvency or bankruptcy
proceeding, including any costs related to the hiring of consultants or
experts; (iii) in commencing, defending or intervening in any litigation or
in filing a petition, complaint, answer, motion or other pleadings in any
legal proceeding relating to the Borrower and related to or arising out of
the transactions contemplated hereby or by any of the Loan Documents (other
than, with respect to any Lender, to the extent resulting from or arising out
of any litigation by the Borrower against such Lender in respect of a breach
by such Lender of its obligations under this Agreement if such Lender is
found by a court of competent jurisdiction to have breached its obligations
under this Agreement (it being agreed that, to the extent that the Borrower
shall have paid any fees and expenses of such Lender relating to any such
litigation, such amounts shall be refunded to the Borrower upon such decision
of such court); (iv) in taking any other action in or with respect to any
suit or proceeding (whether in bankruptcy or otherwise); (v) in protecting,
preserving, collecting, leasing, selling, taking possession of, or
liquidating any of the Collateral; or (vi) attempting to enforce or enforcing
any security interest in any of the Collateral or any other rights under the
Collateral Documents. Any payments made by the Borrower or received by the
Administrative Agent and applied as reimbursements for costs and expenses
under this Section 12.03(b) shall be apportioned among the Administrative
Agent, the Issuing Banks and the Lenders in the order of priority set forth
in Section 2.05(b).
---------------
12.04.Indemnity. The Borrower further agrees to defend, protect,
---------
indemnify, and hold harmless the Administrative Agent, the Arranger, the
Issuing Banks and each and all of the Lenders, each of their respective
Affiliates and each of the respective officers, directors, employees and
agents of each of the foregoing (collectively, the "Indemnified Parties")
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including the fees and
disbursements of one counsel (including, without duplication, the allocated
cost of staff counsel) for such Indemnified Parties (except that, in the
event of any actual or apparent conflicts of interest between or among any
Indemnified Parties, such Indemnified Parties shall be entitled to retain
separate counsel the fees and disbursements of which will be paid by the
Borrower) in connection with any investigative, administrative or judicial
proceeding, whether or not such Indemnified Parties shall be designated a
party thereto), imposed on, incurred by, or asserted against such Indemnified
95
================================================================================
Parties in any manner relating to or arising out of the Commitment Letter,
the transactions contemplated hereby (whether or not consummated), the
capitalization of the Borrower, the Convertible Debentures, this Agreement,
the Collateral Documents or any of the other Loan Documents, any predecessor
loan documents, the Commitments, the making of the Loans and the making of
and participation in the Letters of Credit, the use or intended use of the
Letters of Credit and the proceeds of the Loans hereunder, or the
relationship of any Loan Party, the Administrative Agent and the Lenders
under this Agreement or any other Loan Documents (collectively, the
"Indemnified Matters"); provided, that the Borrower shall have no obligation
to an Indemnified Party hereunder with respect to (a) matters for which such
Indemnified Party has been compensated pursuant to or for which an exemption
is provided in Section 2.02(f), 2.07(d) or any other provision of this
Agreement and (b) Indemnified Matters caused by or resulting from (i) the
gross negligence or willful misconduct of that Indemnified Party or an
Affiliate of such Indemnified Party, as determined by a final judgment of a
court of competent jurisdiction, or (ii) a dispute solely between one or more
Lenders, in such capacity. To the extent that the undertaking to indemnify,
pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the
Borrower shall contribute the maximum portion which it is permitted to pay
and satisfy under applicable law, to the payment and satisfaction of all
Indemnified Matters incurred by the Indemnified Parties. The agreements in
this Section shall survive the termination of the Commitments and repayment
of all the other Obligations.
12.05.Change in Accounting Principles. If any changes in
------------------------------------
accounting principles from those used by ATSC or the Borrower in the
preparation of the financial statements dated as of February 3, 2000 are
hereafter required or permitted by the rules, regulations, pronouncements and
opinions of the Financial Accounting Standards Board of the American
Institute of Certified Public Accountants (or successors thereto or agencies
with similar functions) and are adopted by ATSC or the Borrower with the
agreement of its independent certified public accountants and such changes
result in a change in the method of calculation of any of the pricing ratios,
financial covenants, standards or terms found in Articles VIII and IX hereof,
the parties hereto agree to enter into negotiations in order to amend such
provisions so as to reflect equitably such changes with the desired result
that the criteria for evaluating ATSC's or the Borrower's financial condition
shall be the same after such changes as if such changes had not been made;
provided, however, that no change in generally accepted accounting principles
that would affect the method of calculation of any of the financial
covenants, standards or terms shall be given effect in such calculations
until such provisions are amended, in a manner satisfactory to the Requisite
Lenders, to so reflect such change in accounting principles.
12.06.Setoff. In addition to any Liens granted to the
------
Administrative Agent, the Issuing Banks or the Lenders and any rights now or
hereafter granted under applicable law and not by way of limitation of any
such Lien or rights, upon the occurrence and during the continuance of any
Event of Default, each Lender and Issuing Bank is hereby authorized by the
Borrower at any time or from time to time, without notice to the Borrower, 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 or Issuing Bank to or for the credit or
96
================================================================================
the account of the Borrower against and on account of the Obligations of the
Borrower to that Lender or Issuing Bank including, but not limited to, all
Loans and Letter of Credit Obligations and all claims of any nature or
description arising out of or connected with this Agreement or any of the
other Loan Documents, irrespective of whether or not (a) that Lender or
Issuing Bank shall have made any demand hereunder or (b) the Administrative
Agent shall have declared the principal of and interest on the Loans and
other amounts due hereunder to be due and payable as permitted by Article X
---------
and although said obligations and liabilities, or any of them, may be
contingent or unmatured. Each Lender and Issuing Bank agrees that it shall
not, without the express consent of the Administrative Agent, and that it
shall, to the extent it is lawfully entitled to do so during the continuation
of an Event of Default, upon the request of the Administrative Agent,
exercise its set-off rights hereunder against any accounts of the Borrower
now or hereafter maintained with such Lender or Issuing Bank.
12.07.Ratable Sharing. Subject to Section 2.05(b), the Lenders
---------------- ----------------
agree among themselves that (a) with respect to all amounts received by them
which are applicable to the payment of the Obligations (excluding the fees
described or referred to in Section 2.03), equitable adjustment will be made
-------------
so that, in effect, all such amounts will be shared among them ratably in
accordance with their Pro Rata Shares, whether received by voluntary payment,
by the exercise of the right of set-off or banker's lien, by counterclaim or
cross action or by the enforcement of any or all of the Obligations
(excluding the fees described or referred to in Section 2.03) or the
-------------
Collateral, (b) if any of them shall by voluntary payment or by the exercise
of any right of counterclaim, setoff, banke's lien or otherwise, receive
payment of a proportion of the aggregate amount of the Obligations held by it
which is greater than its Pro Rata Share of the payments on account of the
Obligations (excluding the fees described or referred to in Section 2.03),
------------
the one receiving such excess payment shall purchase, without recourse or
warranty, an undivided interest and participation (which it shall be deemed
to have done simultaneously upon the receipt of such payment) in such
Obligations owed to the others so that all such recoveries with respect to
such Obligations shall be applied ratably in accordance with their Pro Rata
Shares; provided, however, that if all or part of such excess payment
received by the purchasing party is thereafter recovered from it, those
purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to that party to the extent necessary to
adjust for such recovery, but without interest except to the extent the
purchasing party is required to pay interest in connection with such
recovery. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section 12.07 may, to the fullest extent
-------------
permitted by law, exercise all its rights of payment (including, subject to
Section 12.06, the right of setoff) with respect to such participation as
- --------------
fully as if such Lender were the direct creditor of the Borrower in the
amount of such participation.
12.08.Amendments and Waivers. (a) No amendment or modification
-----------------------
of any provision of this Agreement shall be effective without the written
agreement of the Requisite Lenders and the Borrower, and no termination or
waiver of any provision of this Agreement or any other Loan Document, or
consent to any departure by the Borrower therefrom, shall in any event be
effective without the written concurrence of the Requisite Lenders, which the
Requisite Lenders shall have the right to grant or withhold at their sole
discretion; provided, however, that no amendment, modification or waiver
shall, unless evidenced by a writing signed by or on behalf of all the
Lenders, do any of the following: (i) increase the Commitment of any Lender
97
================================================================================
(other than by assignment and other than under Section 12.01); (ii) reduce
---------------
the principal of, or rate of interest on, the Loans or the amount of any fees
payable hereunder; (iii) extend the Final Maturity Date or the expiration
date of any Letter of Credit beyond the Final Maturity Date; (iv) rescind and
annul any acceleration of the maturity of the Loans at any time after the
date of acceleration; (v) release the ATSC Guaranty or any Subsidiary
Guaranty and Collateral Agreement or release Collateral having an aggregate
fair market value in excess of 15% of the aggregate fair market value of all
Collateral existing at the time of such release under the Collateral
Documents (other than as specifically provided hereunder); (vi) change the
definitions of "Pro Rata Shares" or "Requisite Lenders"; (vii) increase any
of the percentages set forth in the definition of "Advance Rate"; or (viii)
amend this Section 12.08(a).
---------------
(b) No amendment, modification, termination, or waiver of any
provision of this Agreement or any Loan Documents shall, unless in writing
and signed by the Administrative Agent or the Issuing Banks, as the case may
be, in addition to the Requisite Lenders or Lenders, as the case may be,
affect the rights or duties of the Administrative Agent or the Issuing Banks,
as the case may be, under this Agreement or any Loan Documents. The
Administrative Agent may, but shall have no obligation to, with the
concurrence of any Lender or Issuing Bank, execute amendments, modifications,
waivers or consents on behalf of such Lender or Issuing Bank.
(c) 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 the Borrower in any case shall entitle the Borrower to any other
or further notice or demand in similar or other circumstances.
(d) Any amendment, modification, termination, waiver or consent
effected in accordance with this Section 12.08 shall be binding on each
--------------
assignee, transferee, recipient of a Lender's Commitment or Loans, each
future assignee, transferee, recipient of a Lender's Commitment or Loans and,
if signed by the Borrower, on the Borrower.
12.09.Independence of Covenants. All covenants hereunder shall
--------------------------
be given independent effect so that if a particular action or condition is
not permitted by any of such covenants, the fact that it would be permitted
by an exception to, or be otherwise within the limitations of, another
covenant shall not avoid the occurrence of an Event of Default or Potential
Event of Default if such action is taken or condition exists.
12.10.Notices.
-------
(a) Unless otherwise specifically provided herein, all notices,
requests and other communications provided for hereunder shall be in writing
(including by facsimile transmission), provided that any matter transmitted
by the Borrower by facsimile shall be immediately confirmed by a telephone
call to the recipient at the number specified in Schedule 1.01(a) and mailed,
----------------
faxed or delivered: if to the Borrower or the Administrative Agent, to the
address or facsimile number specified on the signature pages hereof and, if
to any Lender, to the address or facsimile number specified for notices in
Schedule 1.01(a) or in the applicable Assignment and Acceptance or, as to the
- ----------------
Borrower or the Administrative Agent, to such other address as shall be
98
================================================================================
designated by such party in a written notice to the other parties, and as to
each other party, at such other address as shall be designated by such party
in a written notice to the Borrower and the Administrative Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight (next-day) delivery or faxed, be effective on the
next day or when transmitted by facsimile machine, respectively; if mailed,
be effective upon the third Business Day after the date deposited into the
U.S. mail, or if delivered, be effective upon delivery; except that notices
pursuant to Article II or XI shall not be effective until actually received
----------------
by the Administrative Agent.
(c) Any notice, request or communication permitted to be given by
telephone shall be confirmed immediately in writing, including by facsimile.
(d) The Borrower acknowledges and agrees that any agreement of the
Administrative Agent and the Lenders to receive certain notices by telephone
and facsimile is solely for the convenience and at the request of the
Borrower. The Administrative Agent and the Lenders shall be entitled to rely
on the authority of any Person purporting to be a Person authorized by the
Borrower to give such notice and the Administrative Agent and the Lenders
shall not have any liability to the Borrower or any other Person on account
of any action taken or not taken by the Administrative Agent or the Lenders
in reliance upon such telephonic or facsimile notice. The obligation of the
Borrower to repay the Loans shall not be affected in any way or to any extent
by any failure by the Administrative Agent and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt by the
Administrative Agent and the Lenders of a confirmation which is at variance
with the terms understood by the Administrative Agent and the Lenders to be
contained in the telephonic or facsimile notice.
12.11.Survival of Warranties and Agreements. All agreements,
-----------------------------------------
representations and warranties made herein shall survive the execution and
delivery of this Agreement and the other Loan Documents and the making of the
Loans hereunder.
12.12.Failure or Indulgence Not Waiver; Remedies Cumulative. No
-------------------------------------------------------
failure or delay on the part of the Administrative Agent, any Issuing Bank or
any Lender in the exercise of any power, right or privilege under any of the
Loan Documents 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 any other or
further exercise thereof or of any other right, power or privilege. All
rights and remedies existing under the Loan Documents are cumulative to and
not exclusive of any rights or remedies otherwise available.
12.13.Marshalling; Recourse to Security; Payments Set Aside.
-----------------------------------------------------------
Neither any Lender nor the Administrative Agent shall be under any obligation
to marshal any assets in favor of the Borrower or any other party or against
or in payment of any or all of the Obligations. Recourse to security shall
not be required at any time. To the extent that the Borrower makes a payment
or payments to the Administrative Agent or the Lenders, or the Administrative
Agent or the Lenders enforce their security interests or exercise their
rights of setoff, and such payment or payments or the proceeds of such
99
================================================================================
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,
state or federal law, common law or equitable cause, then to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied, and all Liens, right and remedies therefor, shall be revived and
continued in full force and effect as if such payment had not been made or
such enforcement or setoff had not occurred.
12.14.Severability. In case any provision in or obligation under
------------
this Agreement or the other Loan Documents 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.
12.15.Headings. Article and Section 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.
12.16.Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
--------------
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
12.17.Confidentiality. Each Lender agrees to take normal and
---------------
reasonable precautions and exercise due care to maintain the confidentiality
of all information provided to it by ATSC or the Borrower or any Subsidiary
of the Borrower, or by the Administrative Agent on ATSC's or the Borrower's
or such Subsidiary's behalf, in connection with this Agreement or any other
Loan Document, and neither it nor any of its Affiliates shall use any such
information for any purpose or in any manner other than pursuant to the terms
contemplated by this Agreement; except to the extent such information (i) was
or becomes generally available to the public other than as a result of a
disclosure by such Lender, (ii) was or becomes available on a
non-confidential basis from a source other than the Borrower, provided such
source is not bound by fiduciary duty or a confidentiality agreement with the
Borrower known to such Lender, or (iii) was or is made available to such
Lender on a nonconfidential basis prior to disclosure by the Borrower;
provided, however, that any Lender may disclose such information (A) at the
- -------- -------
request or pursuant to any requirement of any Governmental Authority to which
such Lender is subject or in connection with an examination of such Lender by
any such authority; (B) pursuant to subpoena or other court process; (C) when
required to do so in accordance with the provisions of any applicable
Requirement of Law; (D) to the extent reasonably required in connection with
any litigation or proceeding to which the Administrative Agent, any Lender or
their respective Affiliates may be party and which is necessary in such
party's judgment to protect the interest of such party in connection with any
claim or dispute involving such party, (E) to the extent reasonably required
in connection with the exercise of any remedy hereunder or under any other
Loan Document, (F) to its and its Affiliates' directors, officers, employees
and agents, including independent auditors, legal counsel and other
professional advisors, which Persons to whom such disclosure is made will be
informed of the confidential nature of such information and instructed to
keep such information confidential; (G) to any other party to this Agreement;
(H) with the written consent of ATSC or the Borrower or any Subsidiary of the
Borrower; and (I) to the National Association of Insurance Commissioners or
100
================================================================================
any other similar organization or any nationally recognized rating agency
that requires access to information about a Lender's or Affiliate's
investment portfolio in connection with ratings issued with respect to such
Lender or its Affiliates. If any Lender becomes compelled to disclose any
information pursuant to clause (A), (B), (C) or (D) of the immediately
preceding sentence, such Lender shall provide prior written notice thereof to
the Borrower to the extent practicable and permitted by law and shall
cooperate with the Borrower to take, at the Borrower's expense, all
reasonably available actions to limit disclosure to the extent permitted by
law. Notwithstanding the foregoing, the Borrower authorizes each Lender to
disclose to any Participant or Eligible Assignee and to any prospective
Participant or Eligible Assignee, such financial and other information in
such Lender's possession concerning ATSC or the Borrower or its Subsidiaries
which has been delivered to Administrative Agent or the Lenders pursuant to
this Agreement or which has been delivered to the Administrative Agent or the
Lenders by the Borrower in connection with the Lenders' credit evaluation of
the Borrower prior to entering into this Agreement; provided that, unless
otherwise agreed by the Borrower, such Participant or Eligible Assignee
agrees in writing to such Lender to keep such information confidential to the
same extent required of the Lenders hereunder.
12.18.Consent to Jurisdiction and Service of Process; Waiver of
-----------------------------------------------------------
Jury Trial. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE BORROWER, THE
- -----------
ADMINISTRATIVE AGENT, THE ISSUING BANKS, THE ARRANGER, THE SYNDICATION
AGENTS, THE DOCUMENTATION AGENT AND THE LENDERS WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK, AND BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, THE BORROWER, THE ADMINISTRATIVE AGENT, THE
ISSUING BANKS, THE ARRANGER, THE SYNDICATION AGENTS, THE DOCUMENTATION AGENT
AND THE LENDERS EACH ACCEPT, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF
THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS FROM WHICH NO APPEAL HAS BEEN TAKEN OR IS AVAILABLE.
EACH OF THE BORROWER, THE ADMINISTRATIVE AGENT, THE ISSUING BANKS, THE
ARRANGER, THE SYNDICATION AGENTS, THE DOCUMENTATION AGENT AND THE LENDERS
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ITS RESPECTIVE NOTICE
ADDRESSES SPECIFIED ON THE SIGNATURE PAGES HEREOF, SUCH SERVICE TO BECOME
EFFECTIVE TEN DAYS AFTER SUCH MAILING. EACH PARTY TO THIS AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO (A) TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF
THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO,
IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED
101
================================================================================
IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS
THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY
COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY, AND (B) ANY OBJECTION (INCLUDING ANY OBJECTION OF THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY JURISDICTION SET
FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF ANY PARTY HERETO TO
BRING PROCEEDINGS AGAINST ANY OTHER PARTY HERETO IN THE COURTS OF ANY OTHER
JURISDICTION.
12.19.Counterparts; Effectiveness; Inconsistencies. (a) This
------------------------------------------------
Agreement and any amendments, waivers, consents, or supplements may be
executed in 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.
(b) This Agreement shall become effective against each of the
Borrower, each Lender, each Issuing Bank, the Arranger, the Syndication
Agents, the Documentation Agent and the Administrative Agent hereto on the
date when all of such parties have duly executed and delivered this Agreement
to each other (delivery by the Borrower to the Syndication Agents, the
Documentation Agent, the Issuing Banks and the Lenders and by any Syndication
Agent, Issuing Bank or Lender or the Documentation Agent to the Borrower
being deemed to have been made by delivery to the Administrative Agent).
(c) This Agreement and each of the other Loan Documents shall be
construed to the extent reasonable to be consistent one with the other, but
to the extent that the terms and conditions of this Agreement are actually
inconsistent with the terms and conditions of any other Loan Document, this
Agreement shall govern.
102
================================================================================
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
set forth above.
ANNTAYLOR, INC., as Borrower
By: /s/ James M. Smith
--------------------------
` Name: James M. Smith
Title:Senior Vice President-Chief Financial
Officer
Address for Notices:
1372 Broadway
New York, New York 10018
Attention: Senior Vice President and General Counsel
Facsimile No.: (212) 536-4412
Telephone No.: (212) 536-4253
With a copy to:
AnnTaylor, Inc.
414 Chapel Street
New Haven, CT 06511
Attention: Senior Vice President-Chief Financial
Officer
Facsimile No.: (203) 865-2756
Telephone No.: (203) 865-0811
Signature Page 1 of 11
================================================================================
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Timothy H. Spanos
------------------------------
Name: Timothy H. Spanos
Title:Managing Director
BANK OF AMERICA, N.A., as a Lender
By: /s/ Timoth H. Spanos
Name: Timothy H. Spanos
Title:Managing Director
Address for notices of borrowing, prepayments
and
other administrative matters:
1850 Gateway Boulevard, 5th Floor
Concord, California 94520
Attention: Agency Administrative Services #5596
Jeff S. Khamsivone
Facsimile No.: (888) 969-2451
Telephone No.: (925) 675-8432
Address for all other notices (including with
respect
to amendments and waivers):
1455 Market Street, 12th Floor
San Francisco, California 94103
Attention: Agency Management #10831
Dietmar Schiel, Vice President
Facsimile No.: (415) 436-3425
Telephone No.: (415) 436-2769
Payment Instructions:
Bank of America, N.A.
Dallas, Texas
ABA # 111-000-012
Account Number: 3750836479
Reference: AnnTaylor, Inc.
Signature Page 2 of 11
================================================================================
JP MORGAN, a division of CHASE SECURITIES,
INC., as Syndication Agent
By: /s/ B. Joseph Lillis
-------------------------
Name: B. Joseph Lillis
Title:Managing Director
THE CHASE MANHATTAN BANK, as a Lender
By: /s/ Thomas Bev
--------------------------
Name: Thomas Bev
Title:Vice President
Address for Notices:
The Chase Manhattan Bank
1411 Broadway, 5th Floor
New York, New York 10018
Attention: Craig G. Transue
Telephone No.: (212) 391-2208
Facsimile No.: (212) 391-2102
Payment Instructions:
The Chase Manhattan Bank
4 Metrotech Center
Brooklyn, New York 11245
ABA No.: 021000021
Account Name: Commercial Loan #9420
Account No.: _________________
Reference: AnnTaylor, Inc.
Address for Letter of Credit Fee Payment:
The Chase Manhattan Bank
ABA No.: 021000021
4 Metrotech Center
Brooklyn, New York 11245
Attn: Leila Johnson, Participation Unit
For Credit No.: 324331754
Reference: AnnTaylor, Inc.
Signature Page 3 of 11
================================================================================
FIRST UNION NATIONAL BANK,
as Syndication Agent
By: /s/ Susan T. Vitale
--------------------------
Name: Susan T. Vitale
Title:Assistant Vice President
FIRST UNION NATIONAL BANK, as a Lender
By: /s/ Susan T. Vitale
--------------------------
Name: Susan T. Vitale
Title:Assistant Vice President
Address for Notices:
First Union National Bank
201 South College Street
Charlotte, North Carolina 28288
Attention: Lisa VanNote
Telephone No.: (704) 374-4282
Facsimile No.: (704) 383-7999
Payment Instructions:
First Union National Bank
Charlotte, North Carolina
ABA No.: 053000219
Account Name: Retail
Account No.: 01459168114011
Attention: Lisa VanNote
Reference: AnnTaylor, Inc.
Signature Page 4 of 11
================================================================================
FLEET NATIONAL BANK,
as Documentation Agent
By: /s/ Thomas J. Bullard
--------------------------
Name: Thomas J. Bullard
Title:Director
FLEET NATIONAL BANK, as a Lender
By: /s/ Thomas J. Bullard
--------------------------
Name: Thomas J. Bullard
Title:Director
Address for notices:
Fleet National Bank
MADE10008F
100 Federal Street
Boston, Massachusetts 02110
Attention: Tom Bullard
Telephone No.: (617) 434-3824
Facsimile No.: (617) 434-6685
Payment Instructions:
Fleet National Bank
Boston, Massachusetts
ABA No.: 011-000-138
Account Name: Commercial Loan Services
Account No.: 1510351-66156
Reference: AnnTaylor, Inc.
Signature Page 5 of 11
================================================================================
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Co-Agent
By: /s/ Peter L. Skavla
---------------------
Name: Peter L. Skavla
Title:Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: /s/ Peter L. Skavla
------------------------
Name: Peter L. Skavla
Title:Vice President
Address for Notices:
The CIT Group/Business Credit, Inc.
1211 Avenue of the Americas
New York, New York 10036
Attention: Julianne Low
Telephone No.: (212) 790-9105
Facsimile No.: (212) 536-1295
Payment Instructions:
Chase Manhattan Bank, New York
New York, New York
ABA No.: 021000021
Account Name: The CIT Group/Business Credit, Inc.
Account No.: 144-0-64425
Reference: AnnTaylor, Inc.
Signature Pae 6 of 11
================================================================================
FIRSTAR BANK, N.A., as Co-Agent
By: /s/ Thomas L. Bayer
-----------------------
Name: Thomas L. Bayer
Title:Vice President
FIRSTAR BANK, N.A., as a Lender
By: /s/ Thomas L. Bayer
---------------------------
Name: Thomas L. Bayer
Title:Vice President
Address for Notices:
Firstar Bank, N.A.
One Firstar Plaza, Tram 12-3
St. Louis, Missouri 63101
Attention: Thomas L. Bayer
Telephone No.: (314) 418-3993
Facsimile No.: (314) 418-1963
Payment Instructions:
Firstar Bank
St. Louis, Missouri
ABA No.: 081000210
Account No.: 1620007599
Attention: L/C Payment - D. Sansom
Reference: AnnTaylor, Inc.
Signature Page 7 of 11
================================================================================
TRANSAMERICA BUSINESS CAPITAL CORPORATION, as
Co-Agent
By: /s/ Stephen Goetschius
------------------------------
Name: Stephen Goetschius
Title:Senior Vice President
TRANSAMERICA BUSINESS CAPITAL CORPORATION, as a
Lender
By: /s/ Stephen Goetschius
--------------------------------
Name: Stephen Goetschius
Title:Senior Vice President
Address for Notices:
Transamerica Business Capital Corporation
555 Theodore Fremd Avenue, Suite C-301
Rye, New York 10580
Attention: Gayani Herath
Telephone No.: (914) 925-7231
Facsimile No.: (914) 921-7248
Payment Instructions:
Bank One
Chicago, Illinois
ABA No.: 071-000-013
Account No.: 52-97184
Reference: AnnTaylor, Inc.
Signature Page 8 of 11
================================================================================
BANK LEUMI USA, as a Lender
By: /s/ John Koenigsberg
----------------------------
Name: John Koenigsberg
Title:First Vice President
By: /s/ Phyllis Rosenfeld
------------------------------
Name: Phyllis Rosenfeld
Title:Vice President
Address for Notices:
Bank Leumi USA
562 Fifth Avenue
New York, New York 10036
Attention: Phyllis Rosenfeld
Telephone No.: (212) 626-1322
Facsimile No.: (212) 626-1311
Payment Instructions:
Bank Leumi USA
New York, New York
ABA No.: 026002794
Account No.: 0190148600
Attention: Loan Operations
Reference: AnnTaylor, Inc.
Signature Page 9 of 11
================================================================================
FIFTH THIRD BANK, as a Lender
By: /s/ Ann Pierson
-------------------------
Name: Ann Pierson
Title:Corporate Banking Officer
Address for Notices:
Fifth Third Bank
38 Fountain Square
Cincinnati, Ohio 45263
Attention: Ann Person, Corporate Banking Officer
Telephone No.: (513) 579-5295
Facsimile No.: (513) 744-5947
Payment Instructions:
Fifth Third Bank of America
Cincinnati, Ohio
ABA No.: 042000314
Account No.: 72876175
Attention: Jennifer Pund
Reference: AnnTaylor, Inc.
Signature Page 10 of 11
================================================================================
BANC OF AMERICA SECURITIES LLC,
as Lead Arranger
By: /s/ Anthony Benedetto
-----------------------
Name: Anthony Benedetto
Title: Principal
Signature Page 11 of 11