Exhibit 10.3
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CREDIT AGREEMENT
dated as of December 3, 1998
among
VOLUME SERVICES AMERICA, INC.,
VOLUME SERVICES AMERICA HOLDINGS, INC.,
CERTAIN FINANCIAL INSTITUTIONS,
as the Lenders,
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as a Joint Lead Arranger and the Syndication Agent,
CHASE SECURITIES INC.,
as a Joint Lead Arranger,
CHASE MANHATTAN BANK DELAWARE,
as the Fronting Bank
and
THE CHASE MANHATTAN BANK,
as the Swing Line Lender and the Administrative Agent
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$235,000,000 SENIOR SECURED CREDIT FACILITIES
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TABLE OF CONTENTS
Page
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ARTICLE I.
DEFINITIONS.............................. 2
SECTION 1.01. Defined Terms .............................................. 2
SECTION 1.02. Terms Generally............................................. 26
ARTICLE II.
THE CREDITS ............................ 26
SECTION 2.01. Commitments................................................. 26
SECTION 2.02. Loans....................................................... 30
SECTION 2.03. Borrowing Procedure........................................ 31
SECTION 2.04. Evidence of Debt; Repayment of Loans........................ 32
SECTION 2.05. Fees........................................................ 33
SECTION 2.06. Interest on Loans........................................... 34
SECTION 2.07. Default Interest............................................ 34
SECTION 2.08. Alternate Rate of Interest.................................. 35
SECTION 2.09. Termination and Reduction of Commitments.................... 35
SECTION 2.10. Conversion and Continuation of Term Borrowings.............. 36
SECTION 2.11. Repayment of Term Borrowings................................ 37
SECTION 2.12. Prepayment.................................................. 38
SECTION 2.13. Reserve Requirements; Change in Circumstances............... 40
SECTION 2.14. Change in Legality.......................................... 42
SECTION 2.15. Indemnity................................................... 43
SECTION 2.16. Pro Rata Treatment.......................................... 43
SECTION 2.17. Sharing of Setoffs.......................................... 44
SECTION 2.18. Payments.................................................... 44
SECTION 2.19. Taxes....................................................... 45
SECTION 2.20. Letters of Credit; Generally................................ 48
ARTICLE III.
REPRESENTATIONS AND WARRANTIES.................... 53
SECTION 3.01. Organization; Powers........................................ 53
SECTION 3.02. Authorization............................................... 54
SECTION 3.03. Enforceability.............................................. 54
SECTION 3.04. Governmental Approvals...................................... 54
SECTION 3.05. Financial Statements........................................ 55
SECTION 3.06. No Material Adverse Change.................................. 55
SECTION 3.07. Title to Properties; Possession Under Leases................ 55
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SECTION 3.08. Subsidiaries................................................ 56
SECTION 3.09. Litigation; Compliance with Laws............................ 56
SECTION 3.10. Agreements.................................................. 56
SECTION 3.11. Federal Reserve Regulations................................. 57
SECTION 3.12. Investment Company; Public Utility Holding Company.......... 57
SECTION 3.13. Use of Proceeds............................................. 57
SECTION 3.14. Tax Returns................................................. 57
SECTION 3.15. No Material Misstatements................................... 58
SECTION 3.16. Employee Benefit Plans...................................... 58
SECTION 3.17. Environmental Matters....................................... 59
SECTION 3.18. Capitalization of Holdings and the Borrower................. 60
SECTION 3.19. Security Documents.......................................... 60
SECTION 3.20. Labor Matters............................................... 61
SECTION 3.21. Insurance................................................... 61
SECTION 3.22. Solvency.................................................... 62
SECTION 3.23. Year 2000 Issues............................................ 62
ARTICLE IV.
CONDITIONS OF LENDING......................... 63
SECTION 4.01. All Credit Events........................................... 63
SECTION 4.02. First Credit Event.......................................... 63
ARTICLE V.
AFFIRMATIVE COVENANTS......................... 67
SECTION 5.01. Existence; Businesses and Properties........................ 67
SECTION 5.02. Insurance................................................... 67
SECTION 5.03. Taxes ...................................................... 68
SECTION 5.04. Financial Statements, Reports, etc.......................... 68
SECTION 5.05. Litigation and Other Notices................................ 70
SECTION 5.06. Employee Benefits .......................................... 70
SECTION 5.07. Maintaining Records; Access; Inspections.................... 71
SECTION 5.08. Use of Proceeds............................................. 71
SECTION 5.09. Compliance with Environmental Laws.......................... 71
SECTION 5.10. Preparation of Environmental Reports........................ 71
SECTION 5.11. Further Assurances.......................................... 72
SECTION 5.12. Fiscal Year; Accounting..................................... 72
SECTION 5.13. Dividends................................................... 73
SECTION 5.14. Interest Rate Protection Agreements......................... 73
ARTICLE VI.
NEGATIVE COVENANTS.......................... 73
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SECTION 6.01. Indebtedness................................................ 73
SECTION 6.02. Liens....................................................... 76
SECTION 6.03. Foreign Revenues............................................ 79
SECTION 6.04. Investments, Loans and Advances............................. 79
SECTION 6.05. Mergers; Consolidations; Sales of Assets; Acquisitions...... 81
SECTION 6.06. Dividends and Distributions................................. 82
SECTION 6.07. Transactions with Affiliates................................ 84
SECTION 6.08. Business of Holdings and its Subsidiaries................... 85
SECTION 6.09. Material Agreements......................................... 85
SECTION 6.10. Minimum Consolidated Cash Net Worth......................... 86
SECTION 6.11. Interest Coverage Ratio..................................... 87
SECTION 6.12. Leverage Ratio.............................................. 89
SECTION 6.13. Capital Stock of the Subsidiaries........................... 90
SECTION 6.14. Sale and Lease-Back Transactions............................ 90
ARTICLE VII.
EVENTS OF DEFAULT........................... 90
ARTICLE VIII.
THE AGENTS............................... 93
ARTICLE IX.
MISCELLANEOUS.............................. 96
SECTION 9.01. Notices..................................................... 96
SECTION 9.02. Survival of Agreement....................................... 96
SECTION 9.03. Binding Effect.............................................. 97
SECTION 9.04. Successors and Assigns...................................... 97
SECTION 9.05. Expenses; Indemnity........................................ 101
SECTION 9.06. Right of Setoff............................................ 103
SECTION 9.07. APPLICABLE LAW............................................. 103
SECTION 9.08. Waivers; Amendment......................................... 103
SECTION 9.09. Interest Rate Limitation................................... 105
SECTION 9.10. Entire Agreement........................................... 105
SECTION 9.11. WAIVER OF JURY TRIAL....................................... 105
SECTION 9.12. Severability............................................... 105
SECTION 9.13. Counterparts............................................... 106
SECTION 9.14. Headings................................................... 106
SECTION 9.15. Jurisdiction; Consent to Service of Process................ 106
SECTION 9.16. Confidentiality............................................ 106
SECTION 9.17. Release of Liens and Guarantees............................ 107
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SCHEDULES
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1.01 Adjustments to EBITDA
2.20 Certain Existing Letters of Credit
3.08 Subsidiaries
3.09 Certain Litigation
3.14 Taxes
3.17 Certain Environmental Matters
3.18(a) Capitalization of Holdings and the Borrower
3.18(b) Options, etc.
3.20 Certain Labor Matters
3.21 Insurance
6.01 Certain Indebtedness
6.02 Certain Liens
6.04 Certain Investments
6.07 Certain Transactions with Affiliates
6.09 Certain Agreements
EXHIBITS:
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A Administrative Questionnaire
B Assignment and Acceptance
C Borrowing Request
D Collateral Account Agreement
E Indemnity, Subrogation and Contribution Agreement
F Intellectual Property Security Agreement
G Holdings Guarantee Agreement
H Pledge Agreement
I Security Agreement
J Subsidiary Guarantee Agreement
K-1 Opinion of Counsel of Holdings, the Borrower
and the Subsidiaries (General)
K-2 Opinion of Counsel of Holdings, the Borrower
and the Subsidiaries (Local)
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CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of December 3, 1998, is
entered into by and among VOLUME SERVICES AMERICA, INC., a Delaware corporation
(the "Borrower"), VOLUME SERVICES AMERICA HOLDINGS, INC., a Delaware corporation
("Holdings"), CERTAIN FINANCIAL INSTITUTIONS, as the Lenders (as defined
herein), GOLDMAN SACHS CREDIT PARTNERS L.P. ("GSCP"), as a Joint Lead Arranger
and Syndication Agent (in such capacity, the "Syndication Agent"), CHASE
MANHATTAN BANK DELAWARE, as the Fronting Bank (together with its permitted
successors in such capacity, the "Fronting Bank") and THE CHASE MANHATTAN BANK
("Chase") as a Joint Lead Arranger, the Swingline Lender (as defined herein) and
the Administrative Agent (together with its permitted successors in such
capacity, the "Administrative Agent").
RECITALS:
WHEREAS, pursuant to a Share Exchange Agreement, dated as of
July 27, 1998 (the "Share Exchange Agreement"), among Holdings, as Buyer (as
defined therein), VSI Stockholders (as defined therein and as used herein, "VSI
Stockholders"), General Electric Capital Corporation, a New York corporation
("GECC"), as a Seller, and the other Sellers (as such term is defined therein
and as used herein, "Sellers"), Sellers have sold, and Buyer has purchased,
substantially all of the issued and outstanding capital stock, including
substantially all common and preferred stock and all warrants with respect to
the purchase thereof, of Service America Corporation, a Delaware corporation
("SAC") (all such capital stock of SAC, the "SAC Capital");
WHEREAS, in consideration of the sale and transfer of SAC
Capital, on the closing date under the Share Exchange Agreement Buyers paid to
GECC cash consideration of $1,000, issued to GECC the Promissory Note (as such
term is defined in the Share Exchange Agreement and herein referred to as the
"GECC Promissory Note"), and issued to Sellers the shares of Buyer Common Stock
(as such term is defined in the Share Exchange Agreement) as set forth in the
Share Exchange Agreement;
WHEREAS, pursuant to Section 6.1(a) of the Stockholders
Agreement, dated as of August 24, 1998, among Holdings, VSI Stockholders and
Sellers (the "Stockholders Agreement"), the Borrower shall, as of the Closing
Date, consummate certain elements of the Financing (as such term is defined
therein), including the payment of the fees and expenses incurred in connection
with the transactions contemplated by the Share Exchange Agreement (such
transactions are collectively referred to herein as the "Share Exchange") and
the repayment of certain existing Indebtedness of SAC and its Subsidiaries and
certain existing Indebtedness of the Borrower and its Subsidiaries, including
Volume Services, Inc., a Delaware corporation ("VSI"); and
WHEREAS, the Lenders have agreed to extend certain credit
facilities in an aggregate amount not to exceed $235,000,000 to the Borrower,
the proceeds of which will be used to refinance certain existing indebtedness of
VSI and SAC, to pay fees and expenses related
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to the Share Exchange and the other transaction contemplated hereby and for
working capital and other general corporate purposes of Holdings, the Borrower
and the Subsidiaries.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Holdings, the Borrower,
the Lenders, the Fronting Bank and the Agents agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Term Loan, ABR Revolving Loan or
Swingline Loan.
"ABR Revolving Loan" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Alternate Base Rate in
accordance with the provisions of Article II.
"ABR Term Loan" shall mean any Term Loan bearing interest at a
rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ABR Term Borrowing" shall mean a Borrowing comprised of ABR
Term Loans.
"Adjusted LIBO Rate" shall mean, with respect to any
Eurodollar Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the product of
(a) the LIBO Rate in effect for such Interest Period and (b) Statutory Reserves.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A.
"Administrative Agent" as defined in the preamble hereto.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
person specified (it being understood any two or more investment funds that
invest in commercial loans and that are managed or advised by the same
investment advisor or by an Affiliate of such investment advisor shall be deemed
Affiliates).
"Agents" shall have the meaning given such term in Article
VIII.
3
"Agents Fees" shall have the meaning given such term in
Section 2.05(c).
"Alternate Base Rate" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate, including the failure of the Federal Reserve Bank of New
York to publish rates or the inability of the Administrative Agent to obtain
quotations in accordance with the terms thereof, the Alternate Base Rate shall
be determined without regard to clause (b) of the preceding sentence until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Margin" shall mean (i) from the Closing Date until
the date of delivery of financial statements for the period ending June 29,
1999, 2.00%, per annum, for Revolving Loans and Tranche A Term Loans that are
ABR Loans and for Swingline Loans; and 3.00%, per annum, for Revolving Loans and
Tranche A Term Loans that are Eurodollar Rate Loans, and (ii) thereafter a
percentage, per annum, determined by reference to the Leverage Ratio in effect
from time to time, as set forth below:
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Revolving Loans and Tranche A
Term Loans Revolving Loans and
that are ABR Loans; Tranche A Term Loans
Leverage Ratio Swingline Loans that are Eurodollar Loans
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>3.5:1.00 2.00% 3.00%
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<3.5:1.00 1.75% 2.75%
-
>3.0:1.00
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<3.0:1.00 1.50% 2.50%
-
>2.5:1.00
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<2.5:1:00 1.25% 2.25%
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provided, (a) no change in the Applicable Margin shall be effective until three
Business Days after the date on which Administrative Agent receives the
financial statements and a Compliance Certificate pursuant to Section 5.03(c)
calculating the Leverage Ratio, and (b) for so long (but only for so long) as
Borrower has not submitted to Administrative Agent the information described in
the foregoing clause (a) when required under Section 5.03(c), the Applicable
Margin shall be determined as if the Leverage Ratio then in effect was greater
than 3.5:1.00.
"Applicable Percentage" of any Revolving Credit Lender at any
time shall mean the percentage of the Total Revolving Credit Commitment
represented by such Lender's
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Revolving Credit Commitment. In the event the Revolving Credit Commitments shall
have expired or been terminated, the Applicable Percentages shall be determined
on the basis of the Revolving Credit Commitments most recently in effect, but
giving effect to any assignments pursuant to Section 9.04.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee, and accepted by the
Administrative Agent and the Borrower, in the form of Exhibit B or such other
form as shall be approved by the Administrative Agent.
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"Borrower" as defined in the preamble hereto.
"Borrowing" shall mean a group of Loans of a single Type under
a single Tranche or consisting solely of Revolving Loans or Swingline Loans and
made on a single date and, in the case of Eurodollar Loans, as to which a single
Interest Period is in effect.
"Borrowing Request" shall mean a request by the Borrower in
accordance with the terms of Section 2.03 and substantially in the form of
Exhibit C.
"Business Day" shall mean any day other than a Saturday,
Sunday or day on which banks in New York City are authorized or required by law
to close; provided, however, that when used in connection with a Eurodollar
Loan, the term "Business Day" shall also exclude any day on which banks are not
open for dealings in dollar deposits in the London interbank market.
"Capital Expenditures" shall mean, for any person in respect
of any period, the sum of (a) the aggregate of all expenditures incurred by such
person during such period that, in accordance with GAAP, are or should be
included in "purchase of property and equipment", "purchase of location contract
rights" or similar items reflected in the statement of cash flows of such person
and (b) to the extent not covered by clause (a) above, the aggregate of all
expenditures by such person to acquire by purchase or otherwise the business or
fixed assets of, or stock or other evidence of beneficial ownership of, any
other person (other than the Borrower or any person that is a Wholly-Owned
Subsidiary prior to such acquisition); provided, however, that Capital
Expenditures for the Borrower and the Subsidiaries shall not include (i)
expenditures to the extent they are made with the proceeds of the issuance of
Capital Stock of Holdings after the Closing Date (to the extent not previously
used to prepay Indebtedness (other than Revolving Loans or Swingline Loans),
make any investment or capital expenditure or otherwise for any purpose
resulting in a deduction to Excess Cash Flow in any fiscal year) or with funds
that if not so spent would constitute Net Proceeds under clause (a) of the
definition of "Net Proceeds", (ii) expenditures of proceeds of insurance
settlements, condemnation awards and other settlements in respect of lost,
destroyed, damaged or condemned assets, equipment or other property to the
extent such expenditures are made to replace or repair such lost, destroyed,
damaged or condemned assets, equipment or other property or otherwise to acquire
assets or properties useful in the business of the Borrower and the Subsidiaries
within 12 months of
5
receipt of such proceeds, (iii) expenditures that are accounted for as capital
expenditures of such person and that actually are paid for by a third party
(excluding Holdings or any subsidiary thereof) and for which neither Holdings
nor any subsidiary thereof has provided or is required to provide or incur,
directly or indirectly, any consideration or obligation to such third party or
any other person (whether before, during or after such period), or (iv) the book
value of any asset owned by such person prior to or during such period to the
extent that such book value is included as a capital expenditure during such
period as a result of such person reusing or beginning to reuse such asset
during such period without a corresponding expenditure actually having been made
in such period, provided that any expenditure necessary in order to permit such
asset to be reused shall be included as a Capital Expenditure during the period
that such expenditure actually is made and such book value shall have been
included in Capital Expenditures when such asset was originally acquired.
"Capital Lease Obligations" of any person shall mean the
obligations of such person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
and, for purposes hereof, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance with GAAP.
"Capital Stock" of any person shall mean any and all shares,
interests, rights to purchase, warrants, options, participation or other
equivalents of or interests in (however designated) equity of such person,
including any preferred stock, any limited or general partnership interest and
any limited liability company membership interest, but excluding any debt
securities convertible into such equity.
"Cash Interest Expense" shall mean, with respect to Holdings,
the Borrower and the Subsidiaries on a consolidated basis for any period,
Interest Expense for such period less the sum of (a) pay-in-kind Interest
Expense, (b) to the extent included in Interest Expense, the amortization of
fees paid by Holdings, the Borrower or any Subsidiary on or prior to the Closing
Date in connection with the Transactions, and (c) the amortization of debt
discounts, if any, or fees in respect of Interest Rate Protection Agreements.
"CERCLA" shall have the meaning given such term in the
definition of "Environmental Law".
A "Change in Control" shall be deemed to have occurred if (a)
Holdings should fail to own directly, beneficially and of record, free and clear
of any and all Liens (other than Liens in favor of the Collateral Agent pursuant
to the Pledge Agreement), 100% of the issued and outstanding Capital Stock of
Borrower; (b) Borrower should fail to own directly, beneficially and of record,
free and clear of any and all Liens (other than Liens in favor of the Collateral
Agent pursuant to the Pledge Agreement), 100% of the issued and outstanding
Capital Stock of either of VSI or SAC (subject to Section 5.01(c)); (c) the
Funds, Fund Affiliates and the Management Investors (collectively, the
"Designated Persons") or any combination of Designated Persons shall cease to
own beneficially, directly or indirectly, in the aggregate shares representing
at least
6
51% of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of Holdings; (d) a majority of the seats (excluding
vacant seats) on the board of directors of Holdings shall at any time after the
Closing Date have been occupied by persons who were neither (i) nominated by any
one or more Designated Persons or by a majority of the board of directors of
Holdings, nor (ii) appointed by directors so nominated; or (e) a change in
control with respect to Holdings, or the Borrower (or similar event, however
denominated) shall occur under and as defined in any indenture or agreement in
respect of Indebtedness in an aggregate outstanding principal amount in excess
of $5,000,000 to which Holdings, the Borrower or any Subsidiary is party. For
purposes of clause (c) of this definition, the term "Designated Person" shall be
deemed to include any other holder or holders of shares of Holdings having
ordinary voting power if Holdings, a Fund or any Fund Affiliate shall have the
power to vote (or cause to be voted at its discretion), pursuant to contract,
irrevocable proxy or otherwise, the shares held by such holder.
"Closing Date" shall mean a single date on which the initial
Credit Event occurs hereunder.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral" shall mean all the "Collateral" as defined in any
Security Document.
"Collateral Account" shall have the meaning given such term in
the Collateral Account Agreement.
"Collateral Account Agreement" shall mean the Collateral
Account Agreement, substantially in the form of Exhibit D, between the Borrower
and the Collateral Agent for the benefit of the Secured Parties.
"Commitments" shall mean, with respect to any Lender, such
Lender's Revolving Credit Commitment, Term Commitments and Swingline Loan
Commitment and, with respect to the Fronting Bank, its Letter of Credit
Commitment.
"Commitment Fee" shall have the meaning given such term in
Section 2.05(a).
"Committed Capital Expenditure Deposit" shall mean any amount
deposited by the Borrower or any Subsidiary party to the Collateral Account
Agreement in the Collateral Account (including, without limitation, amounts
deposited in the Collateral Account under any predecessor credit agreement) for
the sole purpose of funding (a) Capital Expenditures required to be made under a
then existing Service Contract or (b) Capital Expenditures the Borrower or a
Subsidiary intends to make within 12 months of the deposit of such amount and in
respect of which the Administrative Agent shall have received a certificate of a
Responsible Officer to such effect.
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"Consolidated Cash Net Worth" shall mean, with respect to
Holdings, the Borrower and the Subsidiaries on a consolidated basis as of the
end of any fiscal quarter, the sum of $60,300,000 plus EBITDA from the first day
of the last fiscal quarter of 1998 through the end of the applicable fiscal
quarter.
"Control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Credit Event" shall have the meaning given such term in
Article IV.
"Current Assets" shall mean, with respect to Holdings, the
Borrower and the Subsidiaries on a consolidated basis at any date of
determination, all assets (other than cash and Permitted Investments or other
cash equivalents) that would, in accordance with GAAP, be classified on a
consolidated balance sheet of Holdings, the Borrower and the Subsidiaries as
current assets at such date of determination.
"Current Liabilities" shall mean, with respect to Holdings,
the Borrower and the Subsidiaries on a consolidated basis at any date of
determination, all liabilities that would, in accordance with GAAP, be
classified on a consolidated balance sheet of Holdings, the Borrower and the
Subsidiaries as current liabilities at such date of determination, other than
(a) the current portion of long term debt, (b) accruals of Interest Expense
(excluding Interest Expense that is due and unpaid), (c) Revolving Loans or
Swingline Loans classified as current, (d) accruals of transaction costs
resulting from the Transactions and (e) accruals of any costs or expenses
related to severance or termination of employees prior to the date hereof.
"Cut Off Date" shall have the meaning given such term in
Section 2.12(g).
"Debt Service" shall mean, with respect to Holdings, the
Borrower and the Subsidiaries on a consolidated basis for any period, Interest
Expense for such period plus scheduled principal amortization of Total Debt for
such period (whether or not such payments are made).
"Default" shall mean any event or condition which upon notice,
lapse of time or both would constitute an Event of Default.
"Dollars" or "$" shall mean lawful money of the United States
of America.
"EBITDA" shall mean, with respect to Holdings, the Borrower
and the Subsidiaries on a consolidated basis for any period, the consolidated
net income of Holdings, the Borrower and the Subsidiaries for such period plus,
to the extent deducted in computing such consolidated net income, without
duplication, the sum of (a) income tax expense and withholding tax expense
incurred in connection with cross border transactions involving non-domestic
Subsidiaries, (b) interest expense, (c) depreciation and amortization expense,
(d) any fees and
8
expenses incurred in connection with the Transactions, and any special charges
or extraordinary or non-recurring losses related to the Transactions incurred
within twelve months of the Closing Date, (e) monitoring and management fees
paid to the Funds and/or any Fund Affiliates and GECC or its Affiliates, and (f)
other noncash items reducing consolidated net income, minus, to the extent added
in computing such consolidated net income, without duplication, (i) interest
income, (ii) extraordinary or non-recurring gains and (iii) other noncash items
increasing consolidated net income; provided that, for purposes of calculating
EBITDA for any period ending prior to the end of the first four full fiscal
quarters ending after the Closing Date, the adjustments to EBITDA set forth in
Schedule 1.01 shall be applied except for purposes of calculating Consolidated
Cash Net Worth; provided further, that, for purposes of calculating EBITDA
(other than Pro Forma Contract EBITDA), there shall be excluded therefrom the
income (or loss) of any person other than a Wholly-Owned Subsidiary of the
Borrower, except to the extent of the amount of dividends or other distributions
actually paid to the Borrower or any of its Wholly-Owned Subsidiaries by such
person during the applicable period.
"environment" shall mean ambient air, surface water and
groundwater (including potable water, navigable water and wetlands), the land
surface or subsurface strata, the workplace or as otherwise defined in any
Environmental Law.
"Environmental Claim" shall mean any written accusation,
allegation, notice of violation, claim, demand, order, directive, cost recovery
action or other cause of action by, or on behalf of, any Governmental Authority
or any person for damages, injunctive or equitable relief, personal injury
(including sickness, disease or death), Remedial Action costs, tangible or
intangible property damage, natural resource damages, nuisance, pollution, any
adverse effect on the environment caused by any Hazardous Material, or for
fines, penalties or restrictions, resulting from or based upon: (a) the threat,
the existence, or the continuation of the existence of a Release (including
sudden or non-sudden, accidental or non-accidental Releases); (b) exposure to
any Hazardous Material; (c) the presence, use, handling, transportation,
storage, treatment or disposal of any Hazardous Material; or (d) the violation
or alleged violation of any Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present
and future treaties, laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the protection of the environment, preservation or reclamation of natural
resources, the treatment, storage, disposal, Release or threatened Release of
any Hazardous Material or to human health or safety (in either case as relating
to the environment), including the Hazardous Materials Transportation Act, 49
U.S.C. ss.ss. 1801 et seq., the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. ss.ss. 9601 et seq. ("CERCLA"), the
Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery
Act of 1976 and the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C.
ss.ss. 6901, et seq., the Federal Water Pollution Control Act, as amended, 33
U.S.C. ss.ss. 1251 et seq., the Clean Air Act of 1970, as amended, 42 U.S.C.
ss.ss. 7401 et seq., the Toxic Substances Control Act of 1976, 15 U.S.C. ss.ss.
2601 et seq., the Emergency Planning and Community Right-
9
to-Know Act of 1986, 42 U.S.C. ss.ss. 11001 et seq., the National Environmental
Policy Act of 1975, 42 U.S.C. ss.ss. 4321 et seq., the Safe Drinking Water Act
of 1974, as amended, 42 U.S.C. ss.ss. 300(f) et seq., and any similar or
implementing state or foreign law, and all amendments or regulations promulgated
thereunder.
"Environmental Permit" shall mean any permit, approval,
authorization, certificate, license, variance, filing or permission required by
or from any Governmental Authority pursuant to any Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code, or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Loan" shall mean any Eurodollar Term Loan or
Eurodollar Revolving Loan.
"Eurodollar Revolving Loan" shall mean any Revolving Loan
bearing interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Term Loan" shall mean any Term Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Event of Default" shall have the meaning given such term in
Article VII.
"Excess Cash Flow" shall mean, with respect to Holdings, the
Borrower and the Subsidiaries on a consolidated basis for any fiscal year, the
greater of (x) EBITDA of Holdings, the Borrower and the Subsidiaries on a
consolidated basis for such fiscal year, minus, without duplication, (a) Debt
Service for such fiscal year, (b) Capital Expenditures (including expenditures
paid in cash which are excluded from the definition of "Capital Expenditures"
pursuant to clause (ii) thereof to the extent the applicable settlements were
included in EBITDA) by the Borrower and the Subsidiaries on a consolidated basis
during such fiscal year which are paid in cash, the aggregate amount of
Committed Capital Expenditure Deposits made during such fiscal year and, to the
extent not included in Capital Expenditures, the aggregate consideration paid in
cash during such fiscal year in respect of Permitted Business Acquisitions and
other Investments permitted under Section 6.04 to the extent not otherwise
deducted in calculating EBITDA, (c) taxes paid in cash by Holdings, the Borrower
and the Subsidiaries on a consolidated basis during such fiscal year, including
income tax expense and withholding tax
10
expense incurred in connection with cross border transactions involving
non-domestic Subsidiaries, (d) an amount equal to any increase in Working
Capital of Holdings, the Borrower and the Subsidiaries for such fiscal year, (e)
monitoring and management fees paid to the Funds and/or any Fund Affiliates
and/or GECC or its Affiliates during such fiscal year, (f) cash expenditures
made in respect of Interest Rate Protection Agreements during such fiscal year,
to the extent not reflected in the computation of EBITDA, (g) permitted
dividends or repurchases of its Capital Stock paid in cash by Holdings or the
Borrower or any Subsidiary during such fiscal year and permitted dividends paid
by any Subsidiary to any person other than the Borrower or any of its other
Subsidiaries during such fiscal year, in each case in accordance with Section
6.06, (h) amounts paid in cash during such fiscal year on account of items that
were accounted for as noncash reductions of consolidated net income of Holdings,
the Borrower and the Subsidiaries in the current or a prior period, (i) special
charges or any extraordinary or non-recurring loss paid in cash during such
fiscal year to the extent not otherwise deducted in calculating EBITDA, (j) to
the extent not deducted in the computation of Net Proceeds in respect of any
asset disposition or condemnation giving rise thereto, mandatory prepayments of
Indebtedness (other than Indebtedness created hereunder or under any other Loan
Document), (k) any voluntary prepayments of Term Loans during such fiscal year
and (l) to the extent included in determining EBITDA, all items that did not
result from a cash payment to Holdings, the Borrower and the Subsidiaries on a
consolidated basis during such fiscal year plus, without duplication, (i) an
amount equal to any decrease in Working Capital for such fiscal year, (ii) all
proceeds received during such fiscal year of Capital Lease Obligations, purchase
money Indebtedness, Sale and Lease-Back Transactions pursuant to Section 6.14
and any other Indebtedness to the extent used to finance any Capital Expenditure
(other than Indebtedness under this Agreement to the extent there is no
corresponding deduction to Excess Cash Flow above in respect of the use of such
Borrowings), (iii) all amounts referred to in (b) above to the extent funded
with the proceeds of the issuance of Capital Stock of Holdings after the Closing
Date (to the extent not previously used to prepay Indebtedness (other than
Revolving Loans or Swingline Loans), make any investment or capital expenditure
or otherwise for any purpose resulting in a deduction to Excess Cash Flow in any
fiscal year) or any amount that would have constituted Net Proceeds under clause
(a) of the definition of "Net Proceeds" if not so spent, in each case to the
extent there is a corresponding deduction to Excess Cash Flow above, (iv) cash
payments received in respect of Interest Rate Protection Agreements during such
fiscal year to the extent not included in the computation of EBITDA, (v) any
extraordinary or non-recurring gain realized in cash during such fiscal year
(except to the extent such gain is subject to Section 2.12(c)), (vi) to the
extent deducted in the computation of EBITDA, interest income, (vii) all
Termination Payments made to any of Holdings, the Borrower or the Subsidiaries
during such fiscal year, (viii) the aggregate amount released to the Borrower
from the Collateral Account during such fiscal year, (ix) the amount of the
Excess Cash Flow Reserve as of the date on which Excess Cash Flow is paid for
such year pursuant to Section 2.12(d), and (x) to the extent subtracted in
determining EBITDA, all items which did not result from a cash payment by
Holdings, the Borrower and the Subsidiaries on a consolidated basis during such
fiscal year and (y) the Excess Cash Flow Reserve as of the date on which Excess
Cash Flow is paid for such year pursuant to Section 2.12(d).
11
"Excess Cash Flow Reserve" shall mean at any time the
aggregate amount contained in the Collateral Account at such time representing
Committed Capital Expenditure Deposits made under clause (b) of the definition
of Committed Capital Expenditure Deposit but not used to fund Capital
Expenditures within 12 months of deposit.
"Federal Funds Effective Rate" shall mean, for any day, the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Fees" shall mean the Commitment Fees, the L/C Participation
Fees, the Fronting Bank Fees and the Agents Fees.
"Financial Officer" of any corporation shall mean the chief
financial officer, principal accounting officer, Treasurer, Assistant Treasurer
or Controller of such corporation.
"Fronting Bank" as defined in the preamble hereto.
"Fronting Bank Fees" shall have the meaning given to such term
in Section 2.05(b).
"Funds" shall mean Blackstone Capital Partners II Merchant
Banking Fund L.P., a Delaware limited partnership and BCP Offshore Volume L.P.,
a Cayman Island exempted limited partnership.
"Fund Affiliates" shall mean each Affiliate of a Fund that is
not an operating company or Controlled by an operating company and each general
partner of a Fund or any Affiliate of a Fund who is a partner or employee of The
Blackstone Group L.P.
"GAAP" shall mean generally accepted accounting principles in
effect from time to time in the United States or, when reference is made to
another jurisdiction, generally accepted accounting principles in such
jurisdiction applied on a consistent basis.
"GECC" as defined in the recitals hereto.
"GECC Promissory Note " as defined in the recitals hereto.
"Governmental Authority" shall mean any Federal, state, local
or foreign court or governmental agency, authority, instrumentality or
regulatory body or, in the case of references to "Governmental Authority" in
Article II and Section 9.16, the National Association of Insurance
Commissioners.
"GSCP" as defined in the preamble hereto.
12
"Guarantee" of or by any person shall mean (a) any obligation,
contingent or otherwise, of such person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay or
otherwise) or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Indebtedness, (ii) to purchase or lease
property, securities or services for the purpose of assuring the owner of such
Indebtedness of the payment of such Indebtedness, (iii) to maintain working
capital, equity capital or any other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or (iv) entered into for the purpose of assuring in any other
manner the holders of such Indebtedness of the payment thereof or to protect
such holders against loss in respect thereof (in whole or in part), or (b) any
Lien on any assets of such person securing any Indebtedness of any other person,
whether or not such Indebtedness is assumed by such person; provided, however,
that the term "Guarantee" shall not include (i) endorsements for collection or
deposit, in either case in the ordinary course of business, or customary and
reasonable indemnity obligations in effect on the Closing Date or entered into
in connection with any acquisition or disposition of assets permitted under this
Agreement or (ii) reasonable and customary indemnity obligations arising under
Service Contracts in the ordinary course of business.
"Guarantee Agreements" shall mean the Holdings Guarantee
Agreement and the Subsidiary Guarantee Agreement.
"Guarantors" shall mean Holdings and the Subsidiary
Guarantors.
"Hazardous Materials" shall mean any material meeting the
definition of a "hazardous substance" in CERCLA 42 U.S.C. ss.9601(14) and all
explosive or radioactive substances or wastes, toxic substances or wastes,
pollutants, solid, liquid or gaseous wastes, including petroleum, petroleum
distillates or fractions or residues, asbestos or asbestos-containing materials,
polychlorinated biphenyls ("PCBs") or materials or equipment containing PCBs,
radon gas, infectious or medical wastes and all other substances or wastes of
any nature regulated pursuant to any Environmental Law, or that reasonably could
form the basis of an Environmental Claim.
"Holdings" as defined in the preamble hereto.
"Holdings Guarantee Agreement" shall mean the Holdings
Guarantee Agreement, substantially in the form of Exhibit G, made by Holdings in
favor of the Collateral Agent for the benefit of the Secured Parties.
"Indebtedness" of any person shall mean, without duplication,
(a) all obligations of such person for borrowed money or with respect to
deposits or advances of any kind, (b) all obligations of such person evidenced
by bonds, debentures, notes or similar instruments, (c) all
13
obligations of such person upon which interest charges are customarily paid
(other than trade payables incurred in the ordinary course of business), (d) all
obligations of such person under conditional sale or other title retention
agreements relating to property or assets purchased by such person, (e) all
obligations of such person issued or assumed as the deferred purchase price of
property or services (other than trade liabilities incurred and outstanding in
the ordinary course of business), (f) all Indebtedness of others secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
person, whether or not the obligations secured thereby have been assumed, (g)
all Guarantees by such person of Indebtedness of others, (h) all Capital Lease
Obligations of such person, (i) all payments that such person would have to make
in the event of an early termination, on the date Indebtedness of such person is
being determined, in respect of outstanding interest rate protection agreements,
foreign currency exchange agreements or other interest or exchange rate hedging
arrangements and (j) all obligations of such person as an account party in
respect of letters of credit and bankers' acceptances. The Indebtedness of any
person shall include the Indebtedness of any partnership in which such person is
a general partner, other than to the extent that the instrument or agreement
evidencing such Indebtedness expressly limits the liability of such person in
respect thereof; provided that, if the sole asset of such person is its general
partnership interest in such partnership, the amount of such Indebtedness shall
be deemed equal to the value of such general partnership interest and the amount
of any Indebtedness in respect of any Guarantee of such partnership Indebtedness
shall be limited to the same extent as such Guarantee may be limited.
Indebtedness shall not include any (i) obligation of the Borrower or any of the
Subsidiaries to make minimum payments or to provide minimum or guaranteed
commissions under any Permitted Service Contract or (ii) other reasonable and
customary indemnity obligations.
"Indemnity, Subrogation and Contribution Agreement" shall mean
the Indemnity, Subrogation and Contribution Agreement, substantially in the form
of Exhibit E, among the Borrower, the Subsidiary Guarantors and the Collateral
Agent.
"Information Memorandum" shall have the meaning given such
term in Section 3.15.
"Installment Date" shall have the meaning given such term in
Section 2.11.
"Intellectual Property Security Agreement" shall mean the
Intellectual Property Security Agreement, substantially in the form of Exhibit
F, among Holdings, the Borrower and certain Subsidiaries and the Collateral
Agent for the benefit of the Secured Parties.
"Interest Coverage Ratio" shall have the meaning given such
term in Section 6.11.
"Interest Expense" shall mean, with respect to Holdings, the
Borrower and the Subsidiaries on a consolidated basis for any period, the sum of
(a) gross interest expense of Holdings, the Borrower and the Subsidiaries for
such period on a consolidated basis, including (i) the amortization of debt
discounts, (ii) the amortization of all fees (including fees with respect to
interest rate protection agreements) payable in connection with the incurrence
of Indebtedness
14
to the extent included in interest expense and (iii) the portion of any payments
or accruals with respect to Capital Lease Obligations allocable to interest
expense and (b) capitalized interest of Holdings, the Borrower and the
Subsidiaries on a consolidated basis minus (c) gross interest income of Holdings
and its Subsidiaries on a consolidated basis for such period. For purposes of
the foregoing, gross interest expense shall be determined after giving effect to
any net payments made or received by the Borrower and the Subsidiaries with
respect to interest rate protection agreements.
"Interest Payment Date" shall mean, (a) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day that would have
been an Interest Payment Date had successive Interest Periods of three months'
duration been applicable to such Borrowing, and, in addition, the date of any
refinancing or conversion of such Borrowing with or to a Borrowing of a
different Type and (b) with respect to any ABR Loan, the last day of each
calendar quarter, commencing March 31, 1999.
"Interest Period" shall mean as to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
may be, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3 or 6 months thereafter, as the Borrower may elect, and the date any
Eurodollar Borrowing is converted to an ABR Borrowing in accordance with Section
2.10 or repaid or prepaid in accordance with Section 2.11 or 2.12; provided,
however, that if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"Interest Rate Protection Agreement" shall mean any interest
rate agreement or arrangement approved by the Administrative Agent (such
approval not to be unreasonably withheld) entered into by the Borrower or a
Subsidiary and designed to protect against fluctuations in interest rates.
"Investors" shall mean the Funds and certain other investors
designated by the Funds (and consisting principally of Fund Affiliates), GECC
and its Affiliates and the Management Investors (acting directly or through
affiliated entities).
"L/C Participation Fee" shall have the meaning given such term
in Section 2.05(b).
"Lender" means each financial institution listed on the
signature pages hereto as a Lender, together with each such institution's
successors and permitted assigns; provided, the term "Lenders" shall also
include each Swing Line Lender and each Fronting Bank unless the context
otherwise requires.
15
"Letter of Credit" shall mean any letter of credit issued
pursuant to Section 2.20.
"Letter of Credit Commitment" shall mean the commitment of the
Fronting Bank to issue Letters of Credit pursuant to Section 2.20(a).
"Letter of Credit Disbursement" shall mean a payment or
disbursement made by the Fronting Bank pursuant to a Letter of Credit.
"Letter of Credit Exposure" shall mean at any time the sum of
(a) the aggregate undrawn amount of all outstanding Letters of Credit at such
time plus (b) the aggregate principal amount of all Letter of Credit
Disbursements that have not yet been reimbursed at such time. The Letter of
Credit Exposure of any Revolving Credit Lender at any time shall mean its
Applicable Percentage of the aggregate Letter of Credit Exposure at such time.
"Leverage Ratio" shall have the meaning given such term in
Section 6.12.
"LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing, the rate (rounded upwards, if necessary, to the next 1/16 of 1%) at
which dollar deposits approximately equal in principal amount to the
Administrative Agent's portion of such Eurodollar Borrowing (or, if the
Administrative Agent shall not have any portion of such Borrowing, the average
amount of the portions of each Lender having any portion of such Borrowing) and
for a maturity comparable to the Interest Period of such Eurodollar Borrowing
are offered to the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" shall mean, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
in or on such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Notes, the
Letters of Credit, the Guarantee Agreements, the Security Documents and the
Indemnity, Subrogation and Contribution Agreement.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Loans" shall mean the Revolving Loans, the Term Loans and the
Swingline Loans.
"Management Investors" shall mean members of management of the
Borrower, VSI and SAC holding, directly or indirectly, voting stock of Holdings
or options to acquire such stock on the Closing Date.
16
"Margin Stock" shall have the meaning given such term in
Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse
effect on the assets, business, properties, financial condition or results of
operations of Holdings, the Borrower and the Subsidiaries, taken as a whole, (b)
a material impairment of the ability of Holdings, the Borrower or any Subsidiary
to perform any of its material obligations under any Loan Document to which it
is or will be a party or (c) an impairment of the validity or enforceability of,
or a material impairment of the material rights, remedies or benefits available
to the Lenders, the Fronting Bank, the Administrative Agent or the Collateral
Agent under, any Loan Document.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate (other than one considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Code Section 414) is making or accruing an obligation
to make contributions, or has within any of the preceding five plan years made
or accrued an obligation to make contributions.
"Net Proceeds" shall mean (a) 100% of the cash proceeds
actually received by Holdings, the Borrower or any Subsidiary (including any
cash payments received by way of deferred payment of principal pursuant to a
note or installment receivable or purchase price adjustment receivable or
otherwise and including casualty insurance settlements and condemnation awards,
but only as and when received), net of (i) attorneys' fees, accountants' fees,
investment banking fees, survey costs, title insurance premiums, and related
search and recording charges, transfer taxes, deed or mortgage recording taxes,
required debt payments (other than pursuant hereto), other customary expenses
and brokerage, consultant and other customary fees actually incurred in
connection therewith and (ii) taxes paid or payable as a result thereof
(including withholding taxes incurred in connection with cross-border
transactions, if applicable, and including taxes estimated by the Borrower to be
payable as a result thereof or as a result of such transactions), from any loss,
damage, destruction or condemnation of, or any sale, transfer or other
disposition (including any sale and leaseback of assets and any mortgage or
lease of real property) to any person of any asset or assets of Holdings, the
Borrower or any Subsidiary (other than those pursuant to Sections 6.05(a),
6.05(b), 6.05(c), 6.05(d), 6.05(e), 6.05(g), 6.05(h) and 6.14 or any other
financing subject to clause (ii) of the definition of "Excess Cash Flow"),
provided that if the Borrower shall deliver a certificate of a Responsible
Officer to the Administrative Agent promptly following receipt of any such
proceeds setting forth the Borrower's intention to use any portion of such
proceeds to purchase assets useful in the business of the Borrower and the
Subsidiaries (including by way of a purchase of Capital Stock of any person
holding such assets) within 12 months of such receipt, such portion of such
proceeds shall not constitute Net Proceeds except to the extent not so used
within such 12-month period, and provided further that (x) no proceeds realized
in a single transaction or series of related transactions shall constitute Net
Proceeds unless such proceeds shall exceed $250,000 and (y) no such proceeds
shall constitute Net Proceeds until the aggregate amount of all such proceeds
received after the Closing Date shall exceed $1,000,000, (b) 100% of the cash
proceeds from the incurrence, issuance or sale by Holdings, the Borrower or any
Subsidiary of any Indebtedness
17
(other than Indebtedness permitted pursuant to Section 6.01), net of all taxes
(including withholding taxes incurred in connection with cross-border
transactions, if applicable, and including taxes estimated by the Borrower to be
payable as a result thereof or as a result of such transactions) and fees
(including investment banking fees), commissions, costs and other expenses
incurred in connection with such issuance or sale and (c) 50% of the cash
proceeds from the issuance or the sale by Holdings of any equity security (other
than (i) sales of Capital Stock of Holdings to directors, officers or employees
of Holdings, the Borrower or any Subsidiary in connection with permitted
employee compensation and incentive arrangements and (ii) Capital Stock used to
finance investments permitted by Section 6.04(o) and (iii) sales of Capital
Stock contemplated by Section 6.04(f)), net of all taxes and fees (including
investment banking fees), commissions, costs and other expenses incurred in
connection with such issuance or sale. For purposes of calculating "Net
Proceeds", fees, commissions and other costs and expenses payable to Holdings or
the Borrower or any Affiliate of any of them shall be disregarded, except for
financial advisory fees customary in type and amount paid to Affiliates of The
Blackstone Group L.P. or to GECC or its Affiliates.
"Non-Wholly-Owned Subsidiary" shall mean any Subsidiary other
than a Wholly-Owned Subsidiary.
"Non-Wholly-Owned Subsidiary Expenditures" shall mean any
amount expended pursuant to Section 6.01(g)(iii), 6.04(a)(vii) or 6.05(d)(ii) or
with respect to any acquisition of a Non-Wholly-Owned Subsidiary or joint
venture.
"Notes" shall mean any promissory note of the Borrower issued
pursuant to this Agreement.
"Obligations" shall mean all obligations defined as
"Obligations" in the Guarantee Agreements and the Security Documents.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
"Permitted Business Acquisition" shall mean any acquisition of
all or substantially all the assets of, or shares or other equity interests in,
a person or division or line of business of a person (or any subsequent
investment made in a previously acquired Permitted Business Acquisition) if
immediately after giving effect thereto: (a) no Default or Event of Default
shall have occurred and be continuing or would result therefrom, (b) all
transactions related thereto shall be consummated in accordance with applicable
laws, (c) at least 90% of the Capital Stock of any acquired or newly formed
corporation, partnership, association or other business entity are owned
directly by the Borrower or a domestic Subsidiary and all actions required to be
taken, if any, with respect to such acquired or newly formed subsidiary under
Section 5.11 shall have been taken and (d)(i) Holdings, the Borrower and the
Subsidiaries shall be in compliance, on a pro forma basis after giving effect to
such acquisition or formation, with the covenants contained in Sections 6.10,
6.11 and 6.12 recomputed as at the last day of the most recently ended fiscal
quarter of Holdings, the Borrower and the Subsidiaries as if such acquisition
had occurred on the
18
first day of each relevant period for testing such compliance, and the Borrower
shall have delivered to the Administrative Agent an officers' certificate to
such effect, together with all relevant financial information for such
subsidiary or assets, and (ii) any acquired or newly formed subsidiary shall not
be liable for any Indebtedness (except for Indebtedness permitted by Section
6.01).
"Permitted Investments" shall mean: (a) direct obligations of
the United States of America or any agency thereof or obligations guaranteed by
the United States of America or any agency thereof; (b) time deposit accounts,
certificates of deposit and money market deposits maturing within 180 days of
the date of acquisition thereof issued by a bank or trust company which is
organized under the laws of the United States of America, any state thereof or
any foreign country recognized by the United States of America having capital,
surplus and undivided profits aggregating in excess of $250,000,000 (or the
foreign currency equivalent thereof) and whose long-term debt, or whose parent
holding company's long-term debt, is rated A (or such similar equivalent rating
or higher by at least one nationally recognized statistical rating organization
(as defined in Rule 436 under the Securities Act of 1933, as amended)); (c)
repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (a) above entered into with a bank
meeting the qualifications described in clause (b) above; (d) commercial paper,
maturing not more than 180 days after the date of acquisition, issued by a
corporation (other than an Affiliate of the Borrower) organized and in existence
under the laws of the United States of America or any foreign country recognized
by the United States of America with a rating at the time as of which any
investment therein is made of P-1 (or higher) according to Moody's, or A-1 (or
higher) according to S&P; (e) securities with maturities of six months or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any political
subdivision or taxing authority thereof, and rated at least A by S&P or A by
Moody's; (f) mutual funds whose investment guidelines restrict such funds'
investments to those satisfying the provisions of clauses (a) through (e) above;
and (g) time deposit accounts, certificates of deposit and money market deposits
in an aggregate face amount not in excess of 1/2 of 1% of total assets of the
Borrower and the Subsidiaries, on a consolidated basis, as of the end of the
Borrower's most recently completed fiscal year.
"Permitted Service Contract" shall mean any Service Contract
if, in the case of a new Service Contract, immediately after its becoming
effective or, in the case of a Service Contract being renewed, immediately after
the effectiveness of such renewal: (a) no Default or Event of Default shall have
occurred and be continuing or would result therefrom, (b) all transactions
related thereto and performance thereunder shall be consummated in accordance
with applicable laws, (c) all rights in such Service Contract are owned directly
by the Borrower or a Subsidiary or a joint venture in which the Borrower or a
Subsidiary has at least a 50% interest, (d) if the Subsidiary party thereto
shall not be a domestic Subsidiary or if the obligor under such Service Contract
shall not be a person located in the United States or if substantially all the
activities and obligations under such Service Contract shall not be performed in
the United States, the aggregate amount of Capital Expenditures projected to be
incurred under such Service Contract when taken together with the aggregate
amount of Capital Expenditures incurred or projected to be incurred under all
such Service Contracts and the aggregate amount of all
19
investments made under Section 6.04(a)(vi) shall not exceed $20,000,000, (e)
Holdings, the Borrower and the Subsidiaries shall be in compliance on a pro
forma basis with the covenants contained in Sections 6.10, 6.11 and 6.12, (i)
recomputed as at the last day of the most recently ended fiscal quarter for
which financial statements shall have been delivered under Section 5.04(a) or
(b) and (ii) computed as at the last day of each of the next three succeeding
fiscal quarters, in each case (A) as if operations had commenced under such
Service Contract on the first day of such four quarter period and all payments
required to be made by any of Holdings, the Borrower and the Subsidiaries under
such Service Contract had been made on such first day and (B) giving effect to
the Borrower's good faith projection of revenues and expenses under such Service
Contract for each of the four quarters commencing with the first full fiscal
quarter during which operations are projected to be conducted under such Service
Contract and the Borrower's good faith projection of its financial position and
results of operations for each of the three fiscal quarters following the most
recently ended fiscal quarter for which financial statements shall have been
delivered under Section 5.04(a) or (b), all of which projections for Service
Contracts involving Capital Expenditures in excess of $1,000,000 shall be
reasonably satisfactory to the Administrative Agent, and, in the case of each
Service Contract involving Capital Expenditures in excess of $5,000,000, the
Borrower shall have delivered to the Administrative Agent an officers'
certificate affirming such compliance, together with all relevant financial
information for such Service Contract, and (f) the first date on which
operations are projected to be conducted under such Service Contract shall not
be later than the first anniversary of (or with respect to Service Contracts
involving Capital Expenditures of up to $5,000,000 in the aggregate, 18 months
after) the date on which the first payment is to be made by any of Holdings, the
Borrower or any Subsidiary under such Service Contract.
"person" shall mean any natural person, corporation, business
trust, joint venture, association, company, limited liability company,
partnership or government, or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other
than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pledge Agreement" shall mean the Pledge Agreement,
substantially in the form of Exhibit H, among Holdings, the Borrower, certain
Subsidiaries and the Collateral Agent for the benefit of the Secured Parties.
"Pledged Stock" shall have the meaning given such term in the
Pledge Agreement.
"Prepayment Date" shall have the meaning given such term in
Section 2.12(g).
"Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by the Administrative Agent as its prime
rate in effect at its principal office in New York City; each change in the
Prime Rate shall be effective on the date such change is publicly announced as
being effective.
20
"Pro Forma Contract EBITDA" shall mean, as at the last day of
any quarter with respect to any new Permitted Service Contract at a venue with
respect to which neither the Borrower nor any Subsidiary has previously
maintained a Service Contract under which (a) any payment has been made by
Holdings, the Borrower or any Subsidiary funded in whole or in part by the
proceeds of Indebtedness included in Total Debt and (b) operations have not yet
commenced or were commenced in a quarter not earlier than the third quarter
preceding the quarter in which the date of determination shall occur, an amount
equal to the Borrower's good faith projection (which projection shall be made
with respect to each such Service Contract involving Capital Expenditures in
excess of $1,000,000 in connection with the preparation of, and shall be
reflected in, each certificate to be delivered under Section 5.04(c) and shall
be satisfactory to the Administrative Agent) of additional EBITDA to be
generated under such Service Contract during the portion of the first four
fiscal quarters of operations under such Service Contract that has not been
completed as at such last day, provided that (i) in the event not all of the
payments required under such Service Contract by Holdings, the Borrower and the
Subsidiaries have been made as at the date of determination, the amount of Pro
Forma Contract EBITDA at such date in respect of such Service Contract shall be
equal to the amount determined as aforesaid multiplied by a fraction the
numerator of which shall be the amount of such payments that have been made on
or prior to such date and the denominator of which shall be the total amount of
such payments required under such Service Contract and (ii) in the event the
first anniversary of the date on which the first payment under any such Service
Contract is made by any of Holdings, the Borrower or any Subsidiary shall occur
prior to the first date on which operations are conducted under such Service
Contract, Pro Forma Contract EBITDA in respect of such Service Contract shall at
all times thereafter equal zero. Operations shall be deemed not to have been
conducted under any Service Contract at any time that the only operations
conducted thereunder shall have been operations conducted at an interim
location. For purposes of calculating the Interest Coverage Ratio. the first
four fiscal quarters of operations shall commence with the fiscal quarter
following the quarter in which the payment referred to in clause (a) above is
made if such payment is made after the 30th day of such quarter.
"Projections" shall have the meaning given such term in
Section 3.05.
"Register" shall have the meaning given such term in Section
9.04(d).
"Regulation U" shall mean Regulation U of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Regulation X" shall mean Regulation X of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Release" shall have the meaning given such term in CERCLA, 42
U.S.C. ss.9601(22).
"Remedial Action" shall mean (a) "remedial action" as such
term is defined in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other
actions, including studies and investigations, required by any Governmental
Authority or voluntarily undertaken to: (i) clean
21
up, remove, treat, abate or in any other way respond to any Hazardous Material
in the environment; or (ii) prevent the Release or threat of Release, or
minimize the further Release of any Hazardous Material.
"Reportable Event" shall mean any reportable event as defined
in Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate that is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414).
"Required Lenders" shall mean, at any time, Lenders having
Loans (other than Swingline Loans), Letter of Credit Exposures, Swingline
Exposures and unused Commitments (excluding commitments to issue Letters of
Credit or make Swingline Loans) representing at least 51% of the sum of all
Loans (other than Swingline Loans) outstanding, Letter of Credit Exposures,
Swingline Exposures and unused Commitments (excluding commitments to issue
Letters of Credit or make Swingline Loans) at such time.
"Responsible Officer" of any corporation shall mean any
executive officer or Financial Officer of such corporation and any other officer
or similar official thereof responsible for the administration of the
obligations of such corporation in respect of this Agreement.
"Revolving Credit Borrowing" shall mean a Borrowing comprised
of Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each
Lender, the commitment of such Lender to make Revolving Loans hereunder as set
forth in Section 2.01(b) or in the Assignment and Acceptance pursuant to which
such Lender assumed its Revolving Credit Commitment, as applicable, as the same
may be increased pursuant to Section 2.01(b)(ii) or may be reduced from time to
time pursuant to Section 2.09 and pursuant to assignments by such Lender
pursuant to Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any
Lender at any time, the aggregate principal amount at such time of all
outstanding Revolving Loans of such Lender plus the amount at such time of such
Lender's Applicable Percentage of the Letter of Credit Exposure plus the amount
at such time of such Lender's Swingline Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving
Credit Commitment.
"Revolving Credit Maturity Date" shall mean the sixth
anniversary of the Closing Date.
"Revolving Loans" shall mean the revolving loans made by the
Lenders to the Borrower pursuant to Section 2.01(b). Each Revolving Loan shall
be a Eurodollar Revolving Loan or an ABR Revolving Loan.
22
"SAC" as defined in the recitals hereto.
"SAC Capital" as defined in the recitals hereto.
"Sale and Lease-Back Transaction" shall have the meaning given
such term in Section 6.14.
"S&P" shall mean Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc.
"Secured Parties" shall have the meaning given such term in
the Security Agreement.
"Security Agreement" shall mean the Security Agreement,
substantially in the form of Exhibit I, among Holdings, the Borrower, the
Subsidiaries and the Collateral Agent for the benefit of the Secured Parties.
"Security Documents" shall mean the Security Agreement, the
Intellectual Property Security Agreement, the Pledge Agreement, and each of the
security agreements and other instruments and documents executed and delivered
pursuant to any of the foregoing or pursuant to Section 5.11.
"Sellers" as defined in the recitals hereto.
"Service Contract" shall mean any contract for the provision
of services to which the Borrower or any Subsidiary is a party that does not
result in such party engaging in any business activity other than the business
currently conducted by it and business activities reasonably incidental or
related thereto.
"Share Exchange" as defined in the recital hereto.
"Statutory Reserves" shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board and any other banking authority, domestic
or foreign, to which the Administrative Agent is subject with respect to
Eurocurrency Liabilities (as defined in Regulation D of the Board) or other
categories of liabilities or deposits by reference to which the LIBO Rate is
determined. Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurodollar Loans shall be deemed to constitute Eurocurrency
Liabilities and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets which may be available from time to
time to any Lender under such Regulation D. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Stockholders Agreement" as defined in the recitals hereto.
23
"subsidiary" shall mean, with respect to any person (herein
referred to as the "parent"), any corporation, partnership, association or other
business entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or more than 50% of the general partnership interests are, at the time any
determination is being made, directly or indirectly, owned, controlled or held,
or (b) which is, at the time any determination is made, otherwise Controlled, by
the parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.
"Subsidiary" shall mean each subsidiary of the Borrower,
including, without limitation, VSI and SAC.
"Subsidiary Guarantee Agreement" shall mean the Subsidiary
Guarantee Agreement, substantially in the form of Exhibit J, made by the
Subsidiary Guarantors in favor of the Collateral Agent for the benefit of the
Secured Parties.
"Subsidiary Guarantor" shall mean each direct or indirect
domestic Wholly-Owned Subsidiary.
"Swingline Exposure" shall mean at any time the aggregate
principal amount of all outstanding Swingline Loans at such time. The Swingline
Exposure of any Revolving Credit Lender at any time shall mean its Applicable
Percentage of the aggregate Swingline Exposure at such time.
"Swingline Lender" shall mean Chase, in its capacity as
Swingline Lender hereunder.
"Swingline Loan Commitment" shall mean the commitment of the
Swingline Lender to make Swingline Loans as set forth in Section 2.01(c).
"Swingline Loans" shall mean the swingline loans made by the
Swingline Lender to the Borrower pursuant to Section 2.01(c).
"Syndication Agent" as defined in the preamble hereto.
"Term Borrowing" shall mean a Borrowing comprised of Term
Loans.
"Term Commitments" shall mean the Tranche A Term Loan
Commitments and the Tranche B Term Loan Commitments.
"Term Loans" shall mean the term loans made by the Lenders to
the Borrower pursuant to Section 2.01(a). Each Term Loan shall be a Eurodollar
Term Loan or an ABR Term Loan.
"Termination Payment" shall mean any payment made to Holdings,
the Borrower or any Subsidiary in respect of the termination of a Service
Contract.
24
"Total Debt" shall mean, with respect to Holdings, the
Borrower and the Subsidiaries on a consolidated basis at any time, all Capital
Lease Obligations, Indebtedness for borrowed money and Indebtedness in respect
of the deferred purchase price of property or services of Holdings, the Borrower
and the Subsidiaries at such time less the amount on deposit in the Collateral
Account at such time.
"Total Revolving Credit Commitment" shall mean, at any time,
the aggregate amount of the Revolving Credit Commitments of all Lenders, as in
effect at such time.
"Total Revolving Credit Exposure" shall mean, at any time, the
aggregate amount of the Revolving Credit Exposure of all Lenders.
"Tranche A Maturity Date" shall mean the seventh anniversary
of the Closing Date.
"Tranche A Term Borrowing" shall mean a Borrowing comprised of
Tranche A Term Loans.
"Tranche A Term Loan Commitment" shall mean with respect to
each Lender, the commitment of such Lender to make Tranche A Term Loans
hereunder as set forth in Section 2.01(a)(i), as the same may be reduced from
time to time pursuant to Section 2.09.
"Tranche A Term Loans" shall mean the term loans made by the
Lenders to the Borrower pursuant to Section 2.01(a)(i).
"Tranche B Maturity Date" shall mean the eighth anniversary of
the Closing Date.
"Tranche B Term Borrowing" shall mean a Borrowing comprised of
Tranche B Term Loans.
"Tranche B Term Loan Commitment" shall mean with respect to
each Lender, the commitment of such Lender to make Tranche B Term Loans
hereunder as set forth in Section 2.01(a)(ii), as the same may be reduced from
time to time pursuant to Section 2.09.
"Tranche B Term Loans" shall mean the term loans made by the
Lenders to the Borrower pursuant to Section 2.01(a)(ii).
"Transactions" shall have the meaning given such term pursuant
to Section 3.02.
"Type", when used in respect of any Loan or Borrowing, shall
refer to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, the term "Rate"
shall include the Adjusted LIBO Rate and the Alternate Base Rate.
"VSI " as defined in the recitals hereto.
25
"VSI Stockholders" as defined in the recitals hereto.
"Waivable Prepayment" shall have the meaning given such term
in Section 2.12(g).
"Wholly-Owned Subsidiary" means a Subsidiary of the Borrower,
at least 99% of the Capital Stock of which (other than directors' qualifying
shares) is owned by the Borrower or another Wholly-Owned Subsidiary; provided
that, so long as Borrower complies with the provisions of Section 5.01(c), SAC
shall be treated as a Wholly-Owned Subsidiary for the period commencing on the
Closing Date and ending ninety days thereafter.
"Withdrawal Liability" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Working Capital" shall mean, with respect to Holdings, the
Borrower and the Subsidiaries on a consolidated basis at any date of
determination, Current Assets at such date of determination minus Current
Liabilities at such date of determination.
"Year 2000 Issues" shall mean limitations in the capacity or
readiness to handle date information for the Year 1999 or years beginning
January 1, 2000 of any Systems.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that for purposes of determining compliance
with the covenants contained in Section 2.12(d) and Article VI all accounting
terms herein shall be interpreted and all accounting determinations hereunder
(in each case, unless otherwise provided for or defined herein) shall be made
in accordance with GAAP as in effect on the date of this Agreement and applied
on a basis consistent with the application used in the financial statements
referred to in Section 3.05; and provided further that if the Borrower notifies
the Administrative Agent that the Borrower wishes to amend any covenant in
Section 2.12(d) or Article VI or any related definition to eliminate the effect
of any change in GAAP occurring after the date of this Agreement on the
operation of such covenant (or if the Administrative Agent notifies the
Borrower that the Required Lenders wish to amend Section 2.12(d) or Article VI
or any related definition for such purpose), then (i) the Borrower and the
Administrative Agent shall negotiate in good faith to agree upon an appropriate
amendment to such covenant and (ii) the Borrower's compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before
26
the relevant change in GAAP became effective until such covenant is amended in
a manner satisfactory to the Borrower and the Required Lenders.
ARTICLE II.
THE CREDITS
SECTION 2.01. Commitments . Subject to the terms and conditions and
relying upon the representations and warranties of Holdings and the Borrower
herein set forth, each Lender agrees, severally and not jointly:
(i) to make a Tranche A Term Loan to the Borrower on the
Closing Date in a principal amount not to exceed the Tranche A Term
Loan Commitment set forth on its signature page hereto, as the same may
be reduced from time to time pursuant to Section 2.09; and
(ii) to make a Tranche B Term Loan to the Borrower on the
Closing Date in a principal amount not to exceed the Tranche B Term
Loan Commitment set forth on its signature page hereto, as the same may
be reduced from time to time pursuant to Section 2.09.
(b) Subject to the terms and conditions and relying upon the
representations and warranties of Holdings and the Borrower herein set
forth, each Lender agrees, severally and not jointly, to make Revolving
Loans to the Borrower, at any time and from time to time on or after
the date hereof, and until the earlier of the Revolving Credit Maturity
Date and the termination of the Revolving Credit Commitment of such
Lender in accordance with the terms hereof, in an aggregate principal
amount at any time outstanding that will not result in such Lender's
Revolving Credit Exposure at such time exceeding such Lender's
Revolving Credit Commitment set forth on its signature page hereto, as
the same may be reduced from time to time pursuant to Section 2.09.
(c)(i) The Swingline Lender hereby agrees, subject to the
terms and conditions and relying upon the representations and
warranties of Holdings, and the Borrower herein set forth, and subject
to the limitations set forth below with respect to the maximum amount
of Swingline Loans permitted to be outstanding from time to time, to
make a portion of the Revolving Credit Commitments available to the
Borrower from time to time during the period from the Closing Date
through and excluding the earlier of the Revolving Credit Maturity Date
and the termination of the Revolving Credit Commitments in an aggregate
principal amount not to exceed the Swingline Loan Commitment, by making
Swingline Loans to the Borrower. Swingline Loans may be made
notwithstanding the fact that such Swingline Loans, when aggregated
with the Swingline Lender's outstanding Revolving Loans, Letter of
Credit Exposure and outstanding Swingline Loans, may exceed the
Swingline Lender's Revolving Credit Commitment. The original amount of
the Swingline Loan Commitment is $5,000,000. The Swingline Loan
Commitment shall expire on the date the Revolving Credit
27
Commitments are terminated and all Swingline Loans and all other
amounts owed hereunder with respect to Swingline Loans shall be paid in
full no later than that date. The Borrower shall give the Swingline
Lender telephonic, written or telecopy notice (in the case of
telephonic notice, such notice shall be promptly confirmed in writing
or by telecopy) not later than 12:00 (noon), New York City time, on the
day of a proposed borrowing. Such notice shall be delivered on a
Business Day, shall be irrevocable, shall refer to this Agreement and
shall specify the requested date (which shall be a Business Day) and
amount of such Swingline Loan. The Swingline Lender shall give the
Administrative Agent, which shall in turn give to each Lender, prompt
written or telecopy advice of any notice received from the Borrower
pursuant to this paragraph.
(ii) In no event shall (A) the aggregate principal amount of
Swingline Loans outstanding at any time exceed the aggregate Swingline
Loan Commitment in effect at such time, (B) the Total Revolving Credit
Exposure at any time exceed the Total Revolving Credit Commitment at
such time or (C) the aggregate Swingline Loan Commitment exceed at any
time the Total Revolving Credit Commitment in effect at such time.
Swingline Loans may only be made as ABR Loans.
(iii) With respect to any Swingline Loans that have not been
voluntarily prepaid by the Borrower, the Swingline Lender (by request
to the Administrative Agent) or Administrative Agent at any time may,
and shall at any time Swingline Loans in an amount not less than
$1,000,000 shall have been outstanding for more than 10 days, on one
Business Day's notice, require each Revolving Credit Lender, including
the Swingline Lender, and each Lender hereby agrees, subject to the
provisions of this Section 2.01(c), to make a Revolving Loan (which
shall be funded as an ABR loan) in an amount equal to such Lender's
Applicable Percentage of the amount of the Swingline Loans ("Refunded
Swingline Loans") outstanding on the date notice is given that the
Swingline Lender requests the Lenders to prepay, provided that so long
as no Default or Event of Default shall have occurred and be
continuing, the Lenders shall not be required to make such Revolving
Loans if the aggregate principal amount of Swingline Loans outstanding
as of any Tuesday of any week (or the first Business Day occurring
after any such Tuesday if such Tuesday is not a Business Day) is less
than $500,000.
(iv) In the case of Revolving Loans made by Lenders other than
the Swingline Lender under the immediately preceding paragraph (iii),
each such Lender shall make the amount of its Revolving Loan available
to the Administrative Agent, in same day funds, at the office of the
Administrative Agent located at 270 Park Avenue, New York, New York,
not later than 1:00 p.m., New York City time, on the Business Day next
succeeding the date such notice is given. The proceeds of such
Revolving Loans shall be immediately delivered to the Swingline Lender
(and not to the Borrower) and applied to repay the Refunded Swingline
Loans. On the day such Revolving Loans are made, the Swingline Lender's
Applicable Percentage of the Refunded Swingline Loans shall be deemed
to be paid with the proceeds of a Revolving Loan made by the Swingline
Lender and such portion of the Swingline Loans deemed to be so paid
shall no longer be
28
outstanding as Swingline Loans and shall be outstanding as Revolving
Loans of Lenders. The Borrower authorizes the Administrative Agent and
the Swingline Lender to charge the Borrower's account with the
Administrative Agent (up to the amount available in such account) in
order to pay immediately to the Swingline Lender the amount of such
Refunded Swingline Loans to the extent amounts received from Lenders,
including amounts deemed to be received from the Swingline Lender, are
not sufficient to repay in full such Refunded Swingline Loans. If any
portion of any such amount paid (or deemed to be paid) to the Swingline
Lender should be recovered by or on behalf of the Borrower from the
Swingline Lender in bankruptcy, by assignment for the benefit of
creditors or otherwise, the loss of the amount so recovered shall be
ratably shared among all Lenders in the manner contemplated by Section
2.17. Subject to the proviso contained in the first sentence of the
preceding paragraph and to the compliance by the Swingline Lender with
the provisions of subparagraph (vii) below, each Lender's obligation to
make the Revolving Loans referred to in this paragraph shall be
absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the Swingline
Lender, the Borrower or any other Person for any reason whatsoever; (B)
the occurrence or continuance of an Event of Default or a Default; (C)
any adverse change in the condition (financial or otherwise) of
Holdings or any of its subsidiaries; (D) any breach of this Agreement
by Holdings, the Borrower or any other Lender; or (E) any other
circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing. Nothing in this Section 2.01(c) shall be deemed
to relieve any Lender from its obligation to fulfill its Commitments
hereunder or to prejudice any rights that the Borrower or the Swingline
Lender may have against any Lender as a result of any default by such
Lender hereunder.
(v) A copy of each notice given by the Swingline Lender or the
Administrative Agent pursuant to this Section 2.01(c) shall be promptly
delivered by the Swingline Lender to the Administrative Agent and the
Borrower. Upon the making of a Revolving Loan by a Lender pursuant to
this Section 2.01(c), the amount so funded shall no longer be owed in
respect of Swingline Loans.
(vi) If as a result of any bankruptcy or similar proceeding,
Revolving Loans are not made pursuant to this Section 2.01(c)
sufficient to repay any amounts owed to the Swingline Lender as a
result of a nonpayment of outstanding Swingline Loans, each Revolving
Credit Lender agrees to purchase, and shall be deemed to have
purchased, a participation in such outstanding Swingline Loans in an
amount equal to its Applicable Percentage of the unpaid amount together
with accrued interest thereon. Upon one Business Day's notice from the
Swingline Lender, each Revolving Credit Lender shall deliver to the
Swingline Lender an amount equal to its respective participation in
same day funds at the office of the Swingline Lender in New York, New
York. In order to evidence such participation each Revolving Credit
Lender agrees to enter into a participation agreement at the request of
the Swingline Lender in form and substance reasonably satisfactory to
all parties. In the event any Lender fails to make available to the
Swingline Lender the amount of such Revolving Credit Lender's
participation as
29
provided in this Section 2.01(c), the Swingline Lender shall be
entitled to recover such amount on demand from such Revolving Credit
Lender together with interest at the customary rate set by the
Swingline Lender for correction of errors among banks in New York City
for one Business Day and thereafter at the Alternate Base Rate plus
2.0%.
(vii) Notwithstanding anything herein to the contrary, the
Swingline Lender shall not make any Swingline Loans at any time the
Swingline Lender is aware that the conditions to the making of such
Swingline Loan set forth in Section 4.01 have not been satisfied unless
such conditions shall have been waived in accordance with this
Agreement.
(d) Within the limits set forth in paragraphs (b) and (c) above, the
Borrower may borrow, pay or prepay and reborrow Revolving Loans and Swingline
Loans on or after the Closing Date and prior to the Revolving Credit Maturity
Date, subject to the terms, conditions and limitations set forth herein. Amounts
paid or prepaid in respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans. Each Loan shall be made as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their
applicable Commitments; provided, however, that the failure of any Lender to
make any Loan shall not relieve any other Lender of its obligation to lend
hereunder (it being understood, however, that no Lender shall be responsible for
the failure of any other Lender to make any Loan required to be made by such
other Lender). The Loans comprising any Borrowing shall be in an aggregate
principal amount which is (i) an integral multiple of $1,000,000 (or, in the
case of Swingline Loans, $250,000) and not less than $1,000,000 (or, in the case
of Swingline Loans, $250,000) or (ii) equal to the remaining available balance
of the applicable Commitments; provided that Revolving Loans used to pay
Refunded Swingline Loans may be in the amount of such Refunded Swingline Loans.
(b) Subject to Sections 2.08 and 2.14, each Borrowing shall be
comprised entirely of ABR Loans or (except in the case of Swingline Loans)
Eurodollar Loans as the Borrower may request pursuant to Section 2.03. Each
Lender may at its option make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the Borrower to repay
such Loan in accordance with the terms of this Agreement and such Lender shall
not be entitled to any amounts payable under Section 2.13 or Section 2.19 in
respect of increased costs arising as a result of such exercise. Borrowings of
more than one Type may be outstanding at the same time; provided, however, that
the Borrower shall not be entitled to request any Borrowing that, if made, would
result in more than six Eurodollar Borrowings outstanding hereunder at any time.
For purposes of the foregoing, Borrowings having different Interest Periods,
regardless of whether they commence on the same date, shall be considered
separate Borrowings.
(c) Subject to paragraph (f) below, each Lender shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer to such
account as the
30
Administrative Agent may designate in federal funds not later than 1:00 p.m.,
New York City time, and the Administrative Agent shall by 12:00 (noon), New York
City time, (a) in the case of any Loan made to reimburse any L/C Disbursement or
to refund any Swingline Loan, apply the amounts so received to effect such
reimbursement or refund as contemplated by Section 2.20 or Section 2.01(c) and
(b) in the case of each Loan the proceeds of which are to be received by the
Borrower, credit the amounts so received to an account designated by the
Borrower in the applicable Borrowing Request; provided, however, that if a
Borrowing shall not occur on such date because any condition precedent herein
specified shall not have been met, the Administrative Agent shall return the
amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and may, in reliance upon such assumption,
make available to the Borrower on such date a corresponding amount. If the
Administrative Agent shall have so made funds available then, to the extent that
such Lender shall not have made such portion available to the Administrative
Agent, such Lender and the Borrower severally agree to repay 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 repaid to the Administrative Agent,
at (i) in the case of the Borrower, the interest rate applicable at the time to
the Loans comprising such Borrowing and (ii) in the case of such Lender, a rate
determined by the Administrative Agent to represent its cost of overnight or
short-term funds (which determination shall be conclusive absent manifest
error). If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such Lender's Loan as part of
such Borrowing for purposes of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Revolving Credit Borrowing if the Interest
Period requested with respect thereto would end after the Revolving Credit
Maturity Date.
(f) The Borrower may refinance all or any part of a Revolving Credit
Borrowing with another Revolving Credit Borrowing. Any Revolving Credit
Borrowing or part thereof so refinanced shall be deemed to be repaid or prepaid
in accordance with the applicable provisions of this Agreement with the proceeds
of the new Revolving Credit Borrowing and the proceeds of such new Borrowing, to
the extent they do not exceed the principal amount of the Borrowing being
refinanced, shall not be paid by the Lenders to the Administrative Agent or by
the Administrative Agent to the Borrower pursuant to paragraph (c) above.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing, the
Borrower shall hand deliver or telecopy to the Administrative Agent a duly
completed Borrowing Request substantially in the form of Exhibit C (a) in the
case of a Eurodollar Borrowing, not later than 12:00 (noon), New York City time,
three Business Days before a proposed Borrowing, and (b) in the case of an ABR
Borrowing, not later than 12:00 noon, New York City time, one
31
Business Day before a proposed Borrowing; provided, however, that Borrowing
Requests with respect to Borrowings to be made on the Closing Date may, at the
discretion of the Administrative Agent, be delivered later than the times
specified above. Each Borrowing Request shall be irrevocable, shall be signed by
or on behalf of the Borrower and shall specify the following information: (i)
whether the Borrowing then being requested is to be a Term Borrowing or a
Revolving Credit Borrowing and whether such Borrowing is to be a Eurodollar
Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which shall be a
Business Day), (iii) the amount of such Borrowing; and (iv) if such Borrowing is
to be a Eurodollar Borrowing, the Interest Period with respect thereto;
provided, however, that, notwithstanding any contrary specification in any
Borrowing Request, each requested Borrowing shall comply with the requirements
set forth in Section 2.02. If no election as to the Type of Borrowing is
specified in any such notice, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period with respect to any Eurodollar Borrowing is
specified in any such notice, then the Borrower shall be deemed to have selected
an Interest Period of one month's duration. The Administrative Agent shall
promptly (and in any event on the same day that the Administrative Agent
receives such notice, if received by 1:00 p.m., New York City time, on such day)
advise the applicable Lenders of any notice given pursuant to this Section 2.03
and of each Lender's portion of the requested Borrowing.
If the Borrower shall not have delivered a Borrowing Request
in accordance with this Section 2.03 prior to the end of the Interest Period
then in effect for any Revolving Credit Borrowing requesting that such Borrowing
be refinanced, then the Borrower shall (unless the Borrower has notified the
Administrative Agent, not less than three Business Days prior to the end of such
Interest Period, that such Borrowing is to be repaid at the end of such Interest
Period) be deemed to have delivered a Borrowing Request requesting that such
Borrowing be refinanced with a new Borrowing of equivalent amount, and such new
Borrowing shall be an ABR Borrowing.
SECTION 2.04. Evidence of Debt; Repaymentof Loans. The outstanding
principal balance of each Loan shall be payable (i) in the case of a Revolving
Loan or a Swingline Loan, on the Revolving Credit Maturity Date and (ii) in the
case of a Term Loan, as provided in Section 2.11. Each Loan shall bear interest
from the date of the first Borrowing hereunder on the outstanding principal
balance thereof as set forth in Section 2.06.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness to such Lender resulting from
each Loan made by such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time under
this Agreement.
(c) The Administrative Agent, in this regard on behalf of the Borrower,
shall maintain the Register pursuant to Section 9.04(d) and an account for each
Lender in which it will record (i) the amount of each Loan made hereunder
whether or not evidenced by a Note, the Type of each Loan made and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender
32
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts maintained
pursuant to paragraph (b) and (c) of this Section 2.04 shall be prima facie
evidence of the existence and amounts of the obligations therein recorded;
provided, however, that the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any manner affect the
obligations of the Borrower to repay the Loans in accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the event
any Lender shall request and receive a Note as provided in Section 9.04(h) or
otherwise, the interests represented by that Note shall at all times (including
after any assignment of all or part of such interests pursuant to Section 9.04)
be represented by one or more Notes payable to the payee named therein or its
registered assigns.
SECTION 2.05. Fees. The Borrower agrees to pay to each Lender, through
the Administrative Agent, on the Closing Date, on the last day of March, June,
September and December in each year, commencing March 31, 1999, and on the date
on which the Commitments of all the Lenders shall be terminated as provided
herein, a commitment fee (a "Commitment Fee") on the average daily unused amount
of the Revolving Credit Commitments of such Lender during the preceding quarter
(or other period commencing with the date of acceptance by the Borrower of the
Commitments of such Lender or ending with the date on which the last of the
Commitments of such Lender shall be terminated) at a rate per annum equal to
0.50%. All Commitment Fees shall be computed on the basis of the actual number
of days elapsed in a year of 365 or 366 days, as applicable. For the purpose of
calculating any Lender's Commitment Fee, the outstanding Swingline Loans during
the period for which such Lender's Commitment Fee is calculated shall be deemed
to be zero. The Commitment Fee due to each Lender shall commence to accrue on
the date of acceptance by the Borrower of the Revolving Credit Commitments of
such Lender and shall cease to accrue on the date on which the last of the
Revolving Credit Commitments of such Lender shall be terminated as provided
herein.
(b) The Borrower from time to time agrees to pay (i) to each Revolving
Credit Lender, through the Administrative Agent, on the last day of March, June,
September and December of each year, commencing March 31, 1999, and on the date
on which the Revolving Credit Commitments of all the Lenders shall be terminated
as provided herein, a fee (an "L/C Participation Fee") on such Lender's
Applicable Percentage of the average daily aggregate Letter of Credit Exposure
(excluding in each case the portion thereof attributable to unreimbursed Letter
of Credit Disbursements), during the preceding quarter (or shorter period
commencing with the date hereof or ending with the Revolving Credit Maturity
Date or the date on which the Revolving Credit Commitments shall be terminated)
at a rate per annum, calculated on a daily basis, equal to the Applicable Margin
for Revolving Loans that are Eurodollar Loans and (ii) to the Fronting Bank, the
fees separately agreed upon by the Borrower and the Fronting Bank plus, in
connection with the issuance, amendment or transfer of any such Letter of Credit
or any Letter of Credit Disbursement thereunder, the Fronting Bank's customary
documentary and processing charges (collectively, the "Fronting Bank Fees"). All
L/C Participation Fees and Fronting Bank
33
Fees that are payable on a per annum basis shall be computed on the basis of the
actual number of days elapsed in a year of 360 days.
(c) The Borrower agrees to pay to the Syndication Agent and the
Administrative Agent, for their respective accounts, the fees set forth in the
letter agreement dated October 27, 1998, between Holdings, the Syndication Agent
and the Administrative Agent at the times and in the amounts set forth therein
(the "Agents Fees").
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Fronting Bank Fees shall be paid directly to
the Fronting Bank. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.06. Interest on Loans. Subject to the provisions of Section
2.07, the Loans comprising each ABR Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed over a year of 365 or 366 days,
as the case may be, when determined by reference to the Prime Rate and over a
year of 360 days at all other times) at a rate per annum equal to the Alternate
Base Rate plus, in the case of (i) Revolving Loans, Swingline Loans and the
Tranche A Term Loans, the Applicable Margin or (ii) Tranche B Term Loans, 2.75%.
(b) Subject to the provisions of Section 2.07, the Loans comprising
each Eurodollar Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum equal
to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus, in the case of (i) Revolving Loans and the Tranche A Term Loans, the
Applicable Margin, or (ii) Tranche B Term Loans, 3.75%.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest
Period or day within an Interest Period, as the case may be, shall be determined
by the Administrative Agent, and such determination shall be conclusive absent
manifest error. The Administrative Agent shall give the Borrower prompt notice
of each such determination.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, the Borrower shall on demand from
time to time pay interest, to the extent permitted by law, on such defaulted
amount for the period beginning on the date of such default up to (but not
including) the date of actual payment (after as well as before judgment) at a
rate per annum (the "Default Rate") (computed on the basis of the actual number
of days elapsed over a year of 360 days) equal to (a) in the case of (i) overdue
Loans, overdue interest thereon, overdue Commitment Fees, overdue L/C
Participation Fees or other overdue amounts owing in respect of Loans or other
obligations (or the related Commitments) under a particular Tranche or in
respect of the Revolving Credit Commitments or (ii) other overdue amounts owing
to a Lender participating in no more than one of the Tranches or the Revolving
Credit Commitments, the rate
34
that would otherwise be applicable to ABR Loans under such Tranche or to ABR
Revolving Loans, as applicable, pursuant to Section 2.06 plus 2.00% or (b) in
the case of any other overdue amount, the Alternate Base Rate plus the then
Applicable Margin for Revolving Loans which are ABR Loans.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined that dollar deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London interbank market, or
that the rates at which such dollar deposits are being offered will not
adequately and fairly reflect the cost to any Lender of making or maintaining
its Eurodollar Loan during such Interest Period, or that reasonable means do not
exist for ascertaining the Adjusted LIBO Rate, the Administrative Agent shall,
as soon as practicable thereafter, give written or telecopy notice of such
determination to the Borrower and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, any request by the Borrower for a Eurodollar Borrowing pursuant to
Section 2.03 or 2.10 shall be deemed to be a request for an ABR Borrowing. Each
determination by the Administrative Agent hereunder shall be conclusive absent
manifest error.
SECTION 2.09. Termination and Reduction of Commitments. The Term
Commitments shall be automatically and permanently terminated at 5:00 p.m., New
York City time, on the Closing Date. The Revolving Credit Commitments shall be
automatically and permanently terminated at 5:00 p.m., New York City time, on
the Revolving Credit Maturity Date.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
any of the Term Commitments or the Revolving Credit Commitments; provided,
however, that (i) each partial reduction of any Commitments shall be in an
integral multiple of $500,000 (or, if less, the remaining amount of the
applicable Commitments) and (ii) in the case of any reduction of Revolving
Credit Commitments, after giving effect to such reduction, the Total Revolving
Credit Commitment shall not be reduced to an amount that is less than the Total
Revolving Credit Exposure at any time.
(c) The Revolving Credit Commitments shall be automatically and
permanently reduced by an amount equal to any amount applied under paragraph (c)
or (d) of Section 2.12 to prepay Revolving Credit Borrowings (or that would have
been required to be so applied if Revolving Credit Borrowings equal to such
amount had been outstanding).
(d) Each reduction in the Commitments hereunder shall be made ratably
among the Lenders in accordance with their respective applicable Commitments.
The Borrower shall pay to the Administrative Agent for the account of the
Lenders, on the date of each termination or reduction, the Commitment Fees and,
to the extent applicable, L/C Participation
35
Fees on the amount of the Commitments so terminated or reduced accrued to but
excluding the date of such termination or reduction.
SECTION 2.10. Conversion and Continuation of Term Borrowings. The
Borrower shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 12:00 (noon), New York City time, one
Business Day prior to conversion, to convert any Eurodollar Term Borrowing into
an ABR Term Borrowing, (b) not later than 10:00 a.m., New York City time, three
Business Days prior to conversion or continuation, to convert any ABR Term
Borrowing into a Eurodollar Term Borrowing or to continue any Eurodollar Term
Borrowing as a Eurodollar Term Borrowing for an additional Interest Period, and
(c) not later than 10:00 a.m., New York City time, three Business Days prior to
conversion, to convert the Interest Period with respect to any Eurodollar Term
Borrowing to another permissible Interest Period, subject in each case to the
following:
(i) each conversion or continuation shall be made pro rata
among the relevant Lenders in accordance with the respective principal
amounts of the Loans comprising the converted or continued Term
Borrowing;
(ii) if less than all the outstanding principal amount of any
Term Borrowing shall be converted or continued, then each resulting
Term Borrowing shall satisfy the limitations specified in Sections
2.02(a) and (b) regarding the principal amount and maximum number of
Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender by
recording for the account of such Lender the new Term Loan of such
Lender resulting from such conversion and reducing the Term Loan (or
portion thereof) of such Lender being converted by an equivalent
principal amount; accrued interest on a Term Loan (or portion thereof)
being converted shall be paid by the Borrower at the time of
conversion;
(iv) if any Eurodollar Term Borrowing is converted at a time
other than the end of the Interest Period applicable thereto, the
Borrower shall pay, upon demand, any amounts due to the Lenders
pursuant to Section 2.15;
(v) any portion of a Term Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as
a Eurodollar Term Borrowing;
(vi) any portion of a Eurodollar Term Borrowing that cannot be
converted into or continued as a Eurodollar Term Borrowing by reason of
the immediately preceding clause shall be automatically converted at
the end of the Interest Period in effect for such Borrowing into an ABR
Term Borrowing; and
(vii) no Interest Period may be selected for any Eurodollar
Term Borrowing that would end later than an Installment Date occurring
on or after the first day of such Interest Period if, after giving
effect to such selection, the aggregate outstanding amount of (A) the
Eurodollar Term Borrowings made pursuant to the same Commitments with
36
Interest Periods ending on or prior to such Installment Date and (B)
the ABR Term Borrowings made pursuant to the same Commitments would not
be at least equal to the principal amount of Term Borrowings to be paid
on such Installment Date.
Each notice pursuant to this Section 2.10 shall be irrevocable
and shall refer to this Agreement and specify (i) the identity and amount of the
Term Borrowing that the Borrower requests be converted or continued, (ii)
whether such Term Borrowing is to be converted to or continued as a Eurodollar
Borrowing or an ABR Borrowing, (iii) if such notice requests a conversion, the
date of such conversion (which shall be a Business Day) and (iv) if such Term
Borrowing is to be converted to or continued as a Eurodollar Borrowing, the
Interest Period with respect thereto. If no Interest Period is specified in any
such notice with respect to any conversion to or continuation as a Eurodollar
Borrowing, the Borrower shall be deemed to have selected an Interest Period of
one month's duration. The Administrative Agent shall advise the other Lenders of
any notice given pursuant to this Section 2.10 and of each Lender's portion of
any converted or continued Term Borrowing. If the Borrower shall not have given
notice in accordance with this Section 2.10 to continue any Term Borrowing into
a subsequent Interest Period (and shall not otherwise have given notice in
accordance with this Section 2.10 to convert such Term Borrowing), such Term
Borrowing shall, at the end of the Interest Period applicable thereto (unless
repaid pursuant to the terms hereof), automatically be converted into an ABR
Borrowing.
SECTION 2.11. Repayment of Term Borrowings. The Term Borrowings shall
be payable as to principal in the aggregate annual amounts set forth below in
consecutive quarterly installments on the last day of each fiscal quarter (each
an "Installment Date"), commencing March 30, 1999 with 25% of each annual amount
being paid on each Installment Date (provided, the entire outstanding amount of
each Term Loan shall be due and payable on the applicable final maturity date
thereof):
Tranche A Tranche B
Fiscal Year Term Loan Amount Term Loan Amount
1999 $3,000,000 $1,200,000
2000 $4,000,000 $1,200,000
2001 $5,000,000 $1,200,000
2002 $7,000,000 $1,200,000
2003 $7,000,000 $1,200,000
2004 $7,000,000 $1,200,000
2005 $7,000,000 $1,200,000
2006 ________ $111,600,000
(b) Each prepayment of principal of the Term Borrowings pursuant to
Section 2.12 shall be applied to (i) the Tranche A Term Borrowings and (ii) the
Tranche B Term Borrowings ratably in accordance with the respective amounts
thereof, and shall reduce scheduled payments and reductions required under
paragraph (a) above after the date of such prepayment or reduction ratably in
accordance with the respective amounts thereof.
37
(c) To the extent not previously paid or reduced, (i) all Tranche A
Term Borrowings shall be due and payable on the Tranche A Maturity Date and
(ii) all Tranche B Term Borrowings shall be due and payable on the Tranche B
Maturity Date. Each repayment of Term Borrowings pursuant to this Section 2.11
shall be subject to Section 2.15 but shall otherwise be without premium or
penalty. Each payment of Borrowings pursuant to this Section 2.11 shall be
accompanied by accrued interest on the principal amount paid to but excluding
the date of payment.
SECTION 2.12. Prepayment. The Borrower shall have the right at any time
and from time to time to prepay any Borrowing, in whole or in part, upon at
least three Business Days' prior written or telecopy notice (or telephone notice
promptly confirmed by written or telecopy notice) to the Administrative Agent;
provided, however, that (i) each partial prepayment (other than of a Swingline
Loan) shall be in an amount which is an integral multiple of $500,000 and not
less than $1,000,000 (or, if less, the aggregate outstanding amount under the
applicable Tranche), and (ii) each prepayment of Term Borrowings shall be
applied as set forth in paragraph (b) of Section 2.11.
(b) In the event of any termination of the Revolving Credit
Commitments, the Borrower shall on the date of such termination repay or prepay
all its outstanding Swingline Loans and Revolving Credit Borrowings, reduce the
Letter of Credit Exposure to zero and cause all Letters of Credit to be canceled
and returned to the Fronting Bank. In the event of any partial reduction of the
Revolving Credit Commitments, then (i) at or prior to the effective date of such
reduction, the Administrative Agent shall notify the Borrower, the Swingline
Lender and the Revolving Credit Lenders of the Total Revolving Credit Exposure
and (ii) if after giving effect to such reduction, the Total Revolving Credit
Exposure would exceed the Total Revolving Credit Commitment, then the Borrower
shall, on the date of such reduction, as applicable, repay or prepay Revolving
Borrowings or repay or prepay Swingline Loans or reduce the Letter of Credit
Exposure (which for purposes of this clause (ii) may include cash
collateralization of Letter of Credit Exposure pursuant to arrangements
satisfactory to Administrative Agent), in an aggregate amount sufficient to
eliminate such excess. Notwithstanding the foregoing, on the date of any
termination or reduction of the Revolving Credit Commitments pursuant to Section
2.09, the Borrower shall pay or prepay so much of the Revolving Credit
Borrowings and Swingline Loans as shall be necessary in order that the Total
Revolving Credit Exposure shall not exceed the Total Revolving Credit Commitment
after giving effect to such termination or reduction.
(c) The Borrower shall apply all Net Proceeds promptly upon receipt
thereof by Holdings, the Borrower or any Subsidiary to prepay Term Borrowings
(and, after the Term Loans have been paid in full, to prepay Revolving Loans).
(d) Not later than 90 days after the end of each fiscal year of the
Borrower, commencing with the fiscal year ending December 31, 1999, the Borrower
shall calculate Excess Cash Flow for such fiscal year and shall apply 100% of
such Excess Cash Flow to prepay Term Borrowings (and, after the Term Loans have
been paid in full, to prepay Revolving Loans). Not later than the date on which
the Borrower is required to deliver financial statements with respect to the end
of each fiscal year under Section 5.04(a), the Borrower will deliver to the
38
Administrative Agent a certificate signed by a Financial Officer of the Borrower
setting forth the amount, if any, of Excess Cash Flow for such fiscal year and
the calculation thereof in reasonable detail. The Borrower may make prepayments
of amounts required to be applied pursuant to this paragraph (d).
(e) Each notice of prepayment or reduction pursuant to this Section
2.12 shall specify the prepayment date and the principal amount of each
Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall
commit the Borrower to prepay such Borrowing by the amount stated therein on the
date stated therein. All prepayments and reductions under this Section 2.12
shall be subject to Section 2.15 but otherwise without premium or penalty. All
prepayments under this Section 2.12 shall be accompanied by accrued interest on
the principal amount being prepaid to but excluding the date of payment.
(f) In the event the amount of any prepayment required to be made above
shall exceed the aggregate principal amount of the ABR Loans outstanding under
the Tranches required to be prepaid (the amount of any such excess being called
the "Excess Amount"), the Borrower shall have the right, in lieu of making such
prepayment in full, to prepay all the outstanding applicable ABR Loans and to
deposit an amount equal to the Excess Amount with the Collateral Agent in a cash
collateral account maintained (pursuant to documentation reasonably satisfactory
to the Administrative Agent) by and in the sole dominion and control of the
Collateral Agent. Any amounts so deposited shall be held by the Collateral Agent
as collateral for the Obligations and applied to the prepayment of the
applicable Eurodollar Loans at the end of the current Interest Periods
applicable thereto. On any Business Day on which (i) collected amounts remain on
deposit in or to the credit of such cash collateral account after giving effect
to the payments made on such day pursuant to this Section 2.12(f) and (ii) the
Borrower shall have delivered to the Collateral Agent a written request or a
telephonic request (which shall be promptly confirmed in writing) that such
remaining collected amounts be invested in the Permitted Investments specified
in such request, the Collateral Agent shall use its reasonable efforts to invest
such remaining collected amounts in such Permitted Investments; provided,
however, that the Collateral Agent shall have continuous dominion and full
control over any such investments (and over any interest that accrues thereon)
to the same extent that it has dominion and control over such cash collateral
account and no Permitted Investment shall mature after the end of the Interest
Period for which it is to be applied. The Borrower shall not have the right to
withdraw any amount from such cash collateral account until the applicable
Eurodollar Loans and accrued interest thereon are paid in full or if a Default
or Event of Default then exists or would result.
(g) Anything contained herein to the contrary notwithstanding, so long
as any Tranche A Term Loans are outstanding, in the event the Borrower makes any
voluntary prepayment or is required to make any prepayment (a "Waivable
Prepayment") of the Tranche B Term Loans pursuant to Section 2.12(a), 2.12(c) or
2.12(d), not less than three Business Days prior to the date (the "Prepayment
Date") on which the Borrower makes or is required to make such Waivable
Prepayment, the Borrower shall notify the Administrative Agent of the amount of
such prepayment, and Administrative Agent will promptly thereafter notify each
Lender holding an outstanding Tranche B Term Loan of the amount of such Lender's
pro rata share of such
39
Waivable Prepayment and such Lender's option to refuse such amount. Each such
Lender may exercise such option by giving written notice to the Borrower and
Administrative Agent of its election to do so on or before the first Business
Day (the "Cutoff Date") prior to the Prepayment Date (it being understood that
any Lender which does not notify the Borrower and Administrative Agent of its
election to exercise such option on or before the Cutoff Date shall be deemed to
have elected, as of the Cutoff Date, not to exercise such option). On the
Prepayment Date, the Borrower shall pay to Administrative Agent the amount of
the Waivable Prepayment, which amount shall be applied in an amount equal to
that portion of the Waivable Prepayment payable to those Lenders that have
elected not to exercise such option, to prepay the Tranche B Term Loans of such
Lenders (which prepayment shall be applied to the scheduled installments of
principal of the Tranche B Term Loans in accordance with Section 2.12(a)), and
in an amount equal to that portion of the Waivable Prepayment otherwise payable
to those Lenders that have elected to exercise such option, to prepay the
Tranche A Term Loans (which prepayment shall be applied to the scheduled
installments of principal of the Tranche A Term Loans in accordance with Section
2.12(a)).
SECTION 2.13. Reserve Requirements; Change in Circumstances.
Notwithstanding any other provision herein, if after the date of this Agreement
any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender or the
Fronting Bank in respect of any Letter of Credit or of the principal of or
interest on any Eurodollar Loan made by such Lender or any Fees or other amounts
payable hereunder (other than changes in respect of (i) taxes imposed on the
overall net income of such Lender or the Fronting Bank and (ii) any Taxes
described in Section 2.19), or shall impose, modify or deem applicable any
reserve, special deposit or similar requirement against assets or deposits with
or for the account of or credit extended by or, in the case of the Letters of
Credit, participated in by such Lender (except any such reserve requirement
which is reflected in the Adjusted LIBO Rate) or the Fronting Bank or shall
impose on such Lender or the Fronting Bank or the interbank eurodollar market
any other condition affecting this Agreement, any Letter of Credit (or any
participation with respect thereto), the Letter of Credit Exposure, the Letter
of Credit Commitment or any Eurodollar Loans of such Lender or the Fronting
Bank, and the result of any of the foregoing shall be to increase the cost to
such Lender or the Fronting Bank of making or maintaining its Letter of Credit
Exposure, its Letter of Credit Commitment or any Eurodollar Loan (or, in the
case of the Fronting Bank, of making any payment under any Letter of Credit) or
to reduce the amount of any sum received or receivable by such Lender or the
Fronting Bank hereunder (whether of principal, interest or otherwise) by an
amount deemed by such Lender or the Fronting Bank to be material, then from time
to time the Borrower will pay to such Lender or the Fronting Bank upon demand
such additional amount or amounts as will compensate such Lender or the Fronting
Bank for such additional costs incurred or reduction suffered.
(b) If any Lender or the Fronting Bank shall have determined that the
adoption after the date hereof of any law, rule, regulation or guideline
regarding capital adequacy, or any change after the date hereof in any of the
foregoing or in the interpretation or administration of any of the foregoing by
any Governmental Authority, central bank or comparable agency charged
40
with the interpretation or administration thereof, or compliance by any
Lender (or any lending office of such Lender) or the Fronting Bank or any
Lender's or the Fronting Bank's holding company with any request or directive
regarding capital adequacy (whether or not having the force of law) made or
issued after the date hereof by any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Lender's or the Fronting Bank's capital or on the capital of such Lender's or
the Fronting Bank's holding company, if any, as a consequence of this Agreement
or its obligations pursuant hereto to a level below that which such Lender or
the Fronting Bank or such Lender's or the Fronting Bank's holding company would
have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or the Fronting Bank's policies and the policies of
such Lender's or the Fronting Bank's holding company with respect to capital
adequacy) by an amount deemed by such Lender or the Fronting Bank to be
material, then from time to time the Borrower shall pay to such Lender or the
Fronting Bank upon demand such additional amount or amounts as will compensate
such Lender or the Fronting Bank or such Lender's or the Fronting Bank's holding
company for any such reduction suffered.
(c) A certificate of each Lender or the Fronting Bank setting forth
such amount or amounts as shall be necessary to compensate such Lender or the
Fronting Bank or its holding company as specified in paragraph (a) or (b) above,
as the case may be, shall be delivered to the Borrower through the
Administrative Agent and shall be conclusive absent manifest error. The Borrower
shall pay each Lender or the Fronting Bank the amount shown as due on any such
certificate delivered by it within 10 days after its receipt of the same.
(d) In the event any Lender or the Fronting Bank delivers a notice
pursuant to paragraph (e) below, the Borrower may require, at the Borrower's
expense and subject to Section 2.15, such Lender or the Fronting Bank to assign,
at par plus accrued interest and fees, without recourse (in accordance with
Section 9.04) all its interests, rights and obligations hereunder (including, in
the case of a Lender, all of its Commitments and the Loans at the time owing to
it and participations in Letters of Credit held by it and its obligations to
acquire such participations) to a financial institution specified by the
Borrower; provided that (i) such assignment shall not conflict with or violate
any law, rule or regulation or order of any court or other Governmental
Authority, (ii) the Borrower shall have received the written consent of the
Administrative Agent (which consent shall not be unreasonably withheld) and each
applicable the Fronting Bank to such assignment, (iii) the Borrower shall have
paid to the assigning Lender or the Fronting Bank all monies accrued and owing
hereunder to it (including pursuant to this Section 2.13) and (iv) in the case
of a required assignment by the Fronting Bank, all outstanding Letters of Credit
issued by the Fronting Bank shall be canceled and returned to the Fronting Bank.
(e) Promptly after any Lender or the Fronting Bank has determined, in
its sole judgment, that it will make a request for increased compensation
pursuant to this Section 2.13, such Lender or the Fronting Bank will notify the
Borrower thereof. Failure on the part of any Lender or the Fronting Bank so to
notify the Borrower or to demand compensation for any increased costs or
reduction in amounts received or receivable or reduction in return on capital
with respect to any period shall not constitute a waiver of such Lender's or the
Fronting Bank's
41
right to demand compensation with respect to such period or any other period;
provided that the Borrower shall not be under any obligation to compensate any
Lender or the Fronting Bank under paragraph (b) above with respect to increased
costs or reductions with respect to any period prior to the date that is six
months prior to such request if such Lender or the Fronting Bank knew or could
reasonably have been expected to be aware of the circumstances giving rise to
such increased costs or reductions and of the fact that such circumstances would
in fact result in a claim for increased compensation by reason of such increased
costs or reductions; provided further that the foregoing limitation shall not
apply to any increased costs or reductions arising out of the retroactive
application of any law, regulation, rule, guideline or directive as aforesaid
within such six month period. The protection of this Section 2.13 shall be
available to each Lender and the Fronting Bank regardless of any possible
contention as to the invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have occurred or been
imposed.
SECTION 2.14. Change in Legality. Notwithstanding any other provision
herein, if the adoption of or any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written notice
to the Borrower and to the Administrative Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made
by such Lender hereunder, whereupon any request by the Borrower for a
Eurodollar Borrowing shall, as to such Lender only, be deemed a request
for an ABR Loan unless such declaration shall be subsequently
withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it
be converted to ABR Loans, in which event all such Eurodollar Loans
shall be automatically converted to ABR Loans as of the effective date
of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under subparagraphs (i) and
(ii) above, all payments and prepayments of principal which would otherwise have
been applied to repay the Eurodollar Loans that would have been made by such
Lender or the converted Eurodollar Loans of such Lender shall instead be applied
to repay the ABR Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan, if lawful, on the last day
of the Interest Period currently applicable to such Eurodollar Loan; in all
other cases such notice shall be effective on the date of receipt by the
Borrower.
SECTION 2.15. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense (other than taxes) that such Lender may sustain or
incur as a consequence of (a) any failure by the Borrower to fulfill on the date
of any Borrowing or proposed Borrowing hereunder the applicable conditions set
forth in Article IV, (b) any failure by the Borrower to
42
borrow or to refinance, convert or continue any Loan hereunder after irrevocable
notice of such Borrowing, refinancing, conversion or continuation has been given
pursuant to Section 2.03 or 2.10, (c) any payment, prepayment or conversion of a
Eurodollar Loan required by any other provision of this Agreement or otherwise
made or deemed made on a date other than the last day of the Interest Period
applicable thereto, (d) any default in payment or prepayment of the principal
amount of any Loan or any part thereof or interest accrued thereon, as and when
due and payable (at the due date thereof, whether by scheduled maturity,
acceleration, irrevocable notice of prepayment or otherwise) or (e) the
occurrence of any Event of Default, including, in each such case, any loss or
reasonable expense sustained or incurred or to be sustained or incurred in
liquidating or employing deposits from third parties acquired to effect or
maintain such Loan or any part thereof as a Eurodollar Loan. Such loss or
reasonable expense shall exclude loss of margin hereunder but shall include an
amount equal to the excess, if any, as reasonably determined by such Lender, of
(i) its cost of obtaining the funds for the Loan being paid, prepaid, converted
or not borrowed, converted or continued (assumed to be the Adjusted LIBO Rate
applicable thereto) for the period from the date of such payment, prepayment,
conversion or failure to borrow, convert or continue to the last day of the
Interest Period for such Loan (or, in the case of a failure to borrow, convert
or continue, the Interest Period for such Loan which would have commenced on the
date of such failure) over (ii) the amount of interest (as reasonably determined
by such Lender) that would be realized by such Lender in reemploying the funds
so paid, prepaid, converted or not borrowed, converted or continued for such
period or Interest Period, as the case may be. A certificate of any Lender
setting forth any amount or amounts which such Lender is entitled to receive
pursuant to this Section 2.15 (and the reasons therefor) shall be delivered to
the Borrower through the Administrative Agent and shall be conclusive absent
manifest error.
SECTION 2.16. Pro Rata Treatment. Except as required under Section 2.14
and subject to Section 2.11, each Borrowing, each payment or prepayment of
principal of any Borrowing, each payment of interest on the Loans, each
reimbursement of Letter of Credit Disbursements, each payment of the Commitment
Fees or L/C Participation Fees, each reduction of the Term Commitments or the
Revolving Credit Commitments and each refinancing of any Borrowing with,
conversion of any Borrowing to or continuation of any Borrowing as a Borrowing
of any Type shall be allocated (except in the case of Swingline Loans) pro rata
among the Lenders in accordance with their respective applicable Commitments
(or, if such Commitments shall have expired or been terminated, in accordance
with the respective principal amounts of their applicable outstanding Loans or
participations in Letter of Credit Disbursements, as applicable). Each Lender
agrees that in computing such Lender's portion of any Borrowing or Letter of
Credit Disbursement, the Administrative Agent may, in its discretion, round each
Lender's percentage of such Borrowing or Letter of Credit Disbursement, computed
in accordance with Section 2.01, to the next higher or lower whole dollar
amount.
SECTION 2.17. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means,
43
obtain payment (voluntary or involuntary) in respect of any Loan or Letter of
Credit Disbursement as a result of which the unpaid principal portion of its
Loans or Letter of Credit Disbursements made pursuant to any Commitment (or,
after acceleration of the Loans pursuant to Article VII, applicable to any Loan
or Letter of Credit Disbursement) shall be proportionately less than the unpaid
principal portion of the Loans or Letter of Credit Disbursements of any other
Lender made pursuant to such Commitments (or, after acceleration of the Loans
pursuant to Article VII, applicable to any Loan or Letter of Credit
Disbursement), it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, an interest in the Loans or Letter of Credit Disbursements
of such other Lender, so that the aggregate unpaid principal amount of the Loans
or Letter of Credit Disbursements and interests in Loans or Letter of Credit
Disbursements held by each such Lender shall be in the same proportion to the
aggregate unpaid principal amount of all Loans or Letter of Credit Disbursements
then outstanding under such Commitments as the principal amount of its Loans or
Letter of Credit Disbursements under such Commitments prior to such exercise of
banker's lien, setoff or counterclaim or other event was to the principal amount
of all such Loans or Letter of Credit Disbursements outstanding prior to such
exercise of banker's lien, setoff or counterclaim or other event; provided,
however, that, if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.17 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Borrower expressly consents to the
foregoing arrangements and agrees that any Lender holding an interest in a Loan
or Letter of Credit Disbursement deemed to have been so purchased may exercise
any and all rights of banker's lien, setoff or counterclaim with respect to any
and all moneys owing by the Borrower to such Lender by reason thereof as fully
as if such Lender had made a Loan directly to, or Letter of Credit Disbursement
directly for the benefit of, the Borrower in the amount of such interest.
SECTION 2.18. Payments. The Borrower shall make each payment without
set-off or counterclaim (including principal of or interest on any Borrowing or
Letter of Credit Disbursement or any Fees or other amounts) required to be made
by it hereunder and under any other Loan Document not later than 12:00 noon, New
York City time, on the date when due in Dollars to the Administrative Agent at
its offices at 270 Park Avenue, New York, New York, Attention of Agent Bank
Services, in immediately available funds, for credit to Chase, ABA Number
021000021, Account Number 323208665. The Administrative Agent shall distribute
such payments to the Lenders and the Fronting Bank promptly upon receipt in like
funds as received.
(b) Whenever any payment (including principal of or interest on any
Borrowing or Letter of Credit Disbursement or any Fees or other amounts)
hereunder or under any other Loan Document shall become due, or otherwise would
occur, on a day that is not a Business Day, such payment may be made on the next
succeeding Business Day (except in the case of payment of principal of a
Eurodollar Borrowing if the effect of such extension would be to extend such
payment into the next succeeding month, in which event such payment shall be due
on the immediately preceding Business Day), and such extension of time shall in
such case be included in the computation of interest or Fees, if applicable.
44
SECTION 2.19. Taxes. Any and all payments by the Borrower to the
Administrative Agent, the Fronting Bank or the Lenders hereunder or under the
other Loan Documents shall be made, in accordance with Section 2.18, 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, excluding (i) in the case of each Lender, the Fronting Bank and the
Administrative Agent, taxes that would not be imposed but for a connection
between such Lender, the Fronting Bank or the Administrative Agent (as the case
may be) and the jurisdiction imposing such tax, other than a connection arising
solely by virtue of the activities of such Lender, the Fronting Bank or the
Administrative Agent (as the case may be) pursuant to or in respect of this
Agreement or under any other Loan Document, including entering into, lending
money or extending credit pursuant to, receiving payments under, or enforcing,
this Agreement or any other Loan Document, and (ii) in the case of each Lender,
the Fronting Bank and the Administrative Agent, any United States withholding
taxes payable with respect to any payments made hereunder or under the other
Loan Documents under laws (including any statute, treaty, ruling, determination
or regulation) in effect on the Initial Date (as hereinafter defined) applicable
to such Lender, the Fronting Bank or the Administrative Agent, as the case may
be, but not excluding any United States withholding taxes payable solely as a
result of any change in such laws occurring after the Initial Date (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). For purposes of this
Section 2.19, the term "Initial Date" shall mean (i) in the case of the
Administrative Agent, the Fronting Bank or any Lender, the date on which such
person became a party to this Agreement and (ii) in the case of any assignment,
including any assignment by a Lender or the Fronting Bank to a new lending
office, the date of such assignment. If any Taxes shall be required by law to be
deducted from or in respect of any sum payable hereunder or under any other Loan
Document to any Lender, the Fronting Bank or the Administrative Agent, (i) the
sum payable by the Borrower shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.19) such Lender, the Fronting Bank 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. The Borrower shall not, however, be required to pay any amounts
pursuant to clause (i) of the preceding sentence to any Lender, the Fronting
Bank or the Administrative Agent that is not a United States person as defined
in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") if such Lender, the
Fronting Bank or the Administrative Agent fails to comply with the requirements
of paragraph (f) and paragraph (g) of this Section 2.19.
(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 the execution, delivery or registration of, or otherwise
with respect to, this Agreement or any other Loan Document (hereinafter referred
to as "Other Taxes").
(c) The Borrower will indemnify each Lender, the Fronting Bank and the
Administrative Agent for the full amount of Taxes and Other Taxes (including any
Taxes or
45
Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.19) paid by such Lender, the Fronting Bank or the Administrative Agent, as the
case may be, and any liability (including penalties, interest and expenses
including reasonable attorney's fees and expenses) arising therefrom or with
respect thereto whether or not such Taxes or Other Taxes were correctly or
legally asserted. A certificate as to the amount of such payment or liability
prepared by a Lender (or Transferee), the Fronting Bank or the Administrative
Agent, absent manifest error, shall be final, conclusive and binding for all
purposes; provided, that if the Borrower reasonably believes that such Taxes
were not correctly or legally asserted, such Lender, the Fronting Bank or the
Administrative Agent, as the case may be shall use reasonable efforts to
cooperate with the Borrower to obtain a refund of such Taxes or Other Taxes.
Such indemnification shall be made within 10 days after the date any Lender, the
Fronting Bank or the Administrative Agent, as the case may be, makes written
demand therefor. If a Lender, the Fronting Bank or the Administrative Agent
shall become aware that it is entitled to receive a refund in respect of Taxes
or Other Taxes, it shall promptly notify the Borrower of the availability of
such refund and shall, within 30 days after receipt of a request by the
Borrower, pursue or timely claim such refund at the Borrower's expense. If any
Lender, the Fronting Bank or the Administrative Agent receives a refund in
respect of any Taxes or Other Taxes for which such Lender, the Fronting Bank or
the Administrative Agent has received payment from the Borrower hereunder, it
shall promptly repay such refund (plus any interest received) to the Borrower
(but only to the extent of indemnity payments made, or additional amounts paid,
by the Borrower under this Section 2.19 with respect to the Taxes or Other Taxes
giving rise to such refund); provided that the Borrower, upon the request of
such Lender, the Fronting Bank or the Administrative Agent, agrees to return
such refund (plus any penalties, interest or other charges required to be paid)
to such Lender, the Fronting Bank or the Administrative Agent in the event such
Lender, the Fronting Bank or the Administrative Agent is required to repay such
refund to the relevant taxing authority.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by the Borrower in respect of any payment to any Lender, the
Fronting Bank or the Administrative Agent, the Borrower will furnish to the
Administrative Agent, at its address referred to in Section 9.01, the original
or a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.19 shall
survive the payment in full of principal and interest hereunder, the expiration
of the Letters of Credit and the termination of the Commitments.
(f) Each Non-U.S. Lender agrees that at least 10 days prior to the
first Interest Payment Date following the Initial Date in respect of the
Fronting Bank or such Lender, it will (i) deliver to the Borrower and the
Administrative Agent (if appropriate) two duly completed copies of either United
States Internal Revenue Service Form 1001 or 4224 or successor applicable form,
as the case may be, certifying in each case that the Fronting Bank, such Lender
or the Administrative Agent, as the case may be, is entitled to receive payments
under this Agreement and the other Loan Documents payable to it without
deduction or withholding of any
46
United States federal income taxes and backup withholding taxes or is entitled
to receive such payments at a reduced rate pursuant to a treaty provision or
(ii) in the case of a Lender that is not a "bank" within the meaning of Section
881(c)(3) of the Code, (A) deliver to the Borrower and the Administrative Agent
(I) a statement under penalties of perjury that such Lender (w) is not a "bank"
under Section 881(c)(3)(A) of the Code, is not subject to regulatory or other
legal requirements as a bank in any jurisdiction, and has not been treated as a
bank for purposes of any tax, securities law or other filing or submission made
to any Governmental Authority, any application made to a rating agency or
qualification for any exemption from tax, securities law or other legal
requirements, (x) is not a 10-percent shareholder within the meaning of Section
881(c)(3)(B) of the Code, and (y) is not a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(c) of the Code, (II) such factual representations as the Borrower may
reasonably request to allow the Borrower to conclude that such Lender is not a
"conduit entity" within the meaning of U.S. Treasury Regulations Section 1.881-3
and (III) an Internal Revenue Service Form W-8; (B) deliver to the Borrower and
the Administrative Agent a further copy of said Form W-8, or any successor
applicable form or other manner of certification on or before the date that any
such Form W-8 expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form previously delivered by such Lender;
and (C) obtain such extensions of time for filing and complete such forms or
certifications as may be reasonably requested by the Borrower or the
Administrative Agent; unless in any such case an event (including any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders any such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. In the case of a Lender providing a Form 1001 or 4224,
such Lender also agrees to provide a Form W-8 or W-9, certifying that it is
entitled to an exemption from United States backup withholding tax. Each Person
that shall become a participant pursuant to Section 9.04 shall, upon the
effectiveness of the related transfer, be required to provide all the forms and
statements required pursuant to this paragraph (f) to the Lender from which the
related participation shall have been purchased. Unless the Borrower and the
Administrative Agent have received forms, certificates and other documents
required by this Section 2.19(f) indicating that payments hereunder or under
this Agreement, any other Loan Document or the Letters of Credit to or for the
Fronting Bank or Lender not incorporated under the laws of the United States or
a state thereof are not subject to United States withholding tax or are subject
to such tax at a rate reduced by an applicable tax treaty, the Borrower or the
Administrative Agent shall withhold such taxes from such payments at the
applicable statutory rate.
(g) The Fronting Bank and any Lender claiming any additional amounts
payable pursuant to this Section 2.19 shall use reasonable efforts (consistent
with legal and regulatory restrictions) to file any certificate or document
requested in writing by the Borrower or to change the jurisdiction of its
applicable lending office, if the making of such a filing or change would avoid
the need for or reduce the amount of any such additional amounts which would be
payable or may thereafter accrue and would not, in the sole determination of the
Fronting Bank or such Lender, be otherwise disadvantageous to the Fronting Bank
or such Lender.
47
(h) Nothing contained in this Section 2.19 shall require any Lender or
the Fronting Bank or the Administrative Agent to make available any of its tax
returns (or any other information that it deems to be confidential or
proprietary).
SECTION 2.20. Letters of Credit; Generally. The Borrower may request
the issuance of a Letter of Credit, in a form reasonably acceptable to the
Administrative Agent and the Fronting Bank, appropriately completed, for the
account of the Borrower at any time and from time to time while the Revolving
Credit Commitments remain in effect. This Section 2.20(a) shall not be construed
to impose an obligation upon the Fronting Bank to issue any Letter of Credit
that is inconsistent with the terms and conditions of this Agreement or that
would result in there existing Letters of Credit in an aggregate stated amount
at any time in excess of $35,000,000. Notwithstanding anything herein to the
contrary, each of the letters of credit outstanding on the Closing Date that are
identified on Schedule 2.20 shall be deemed to be a Letter of Credit issued and
outstanding under this Agreement as of the Closing Date.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. In order to request the issuance of a Letter of Credit (or to
request that the Fronting Bank amend, renew or extend an existing Letter of
Credit), the Borrower shall hand deliver or telecopy to the Fronting Bank and
the Administrative Agent (reasonably in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting the issuance of
such Letter of Credit, or identifying any Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or
extension, the date on which such Letter of Credit is to expire (which shall
comply with paragraph (c) below), the amount of such Letter of Credit to be
issued, amended, renewed or extended, the name and address of the beneficiary
thereof and such other information as shall be necessary to prepare such Letter
of Credit or grant such issuance, amendment, renewal or extension. Following
receipt of such notice and prior to the issuance, amendment, renewal or
extension of any Letter of Credit the Administrative Agent shall notify the
Borrower and the Fronting Bank of the amount of the Total Revolving Credit
Exposure after giving effect to (i) the issuance, amendment, renewal or
extension of such Letter of Credit, (ii) the issuance or expiration of any other
Letter of Credit that is to be issued or will expire prior to the requested date
of issuance of such Letter of Credit and (iii) the borrowing or repayment of any
Revolving Loans and Swingline Loans that (based upon notices delivered to the
Administrative Agent by the Borrower) are to be borrowed or repaid prior to the
requested date of issuance, amendment, renewal or extension of such Letter of
Credit. Each Letter of Credit shall be issued, amended, renewed or extended
subject to the terms and conditions and relying on the representations and
warranties of Holdings and the Borrower set forth herein, and in any case only
if, and upon issuance, amendment, renewal or extension of each Letter of Credit
the Borrower shall be deemed to represent and warrant that, after giving effect
to such issuance, amendment, renewal or extension the Total Revolving Credit
Exposure shall not exceed the Total Revolving Credit Commitment in effect at
such time. Any Letter of Credit may be issued by the Fronting Bank through its
affiliate, Chase, and in the event of any such issuance, all references herein
and in the other Loan Documents to the term "Fronting Bank" shall, with respect
to such Letter of Credit, be deemed to refer to Chase, in such capacity, as the
context shall require.
48
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the earlier of the date one year after the date of the issuance of
such Letter of Credit and the date that is three Business Days prior to the
Revolving Credit Maturity Date, unless such Letter of Credit expires by its
terms on an earlier date; provided that a Letter of Credit shall not be issued
(nor shall a Letter of Credit be amended, renewed or extended) that would result
in the Total Revolving Credit Exposure exceeding the Total Revolving Credit
Commitment in effect at such time. Compliance with the foregoing proviso shall
be determined based upon the assumption that (i) each Letter of Credit remains
outstanding and undrawn in accordance with its terms until its expiration date
(taking into account any rights of renewal or extension that do not require
written notice by or consent of the Fronting Bank, in its sole discretion, in
order to effect such renewal or extension) and (ii) the Revolving Credit
Commitments will not be reduced pursuant to Section 2.09.
(d) Participations. By the issuance of a Letter of Credit and without
any further action on the part of the Fronting Bank or the Revolving Credit
Lenders, the Fronting Bank will grant to each Revolving Credit Lender, and each
such Lender will acquire from the Fronting Bank, a participation in such Letter
of Credit equal to such Revolving Credit Lender's Applicable Percentage of the
aggregate amount available to be drawn under such Letter of Credit, effective
upon the issuance of such Letter of Credit. In consideration and in furtherance
of the foregoing, each Revolving Credit Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the Fronting Bank, such Revolving Credit Lender's Applicable Percentage of each
Letter of Credit Disbursement made by the Fronting Bank under such Letter of
Credit and not reimbursed by the Borrower (or, if applicable, another party
pursuant to its obligations under any other Loan Document) on or before the next
Business Day as provided in paragraph (e) below. Each Revolving Credit Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit which were issued upon
satisfaction of all applicable conditions precedent is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or an Event of Default,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(e) Reimbursement. If the Fronting Bank shall make any Letter of Credit
Disbursement in respect of a Letter of Credit, the Borrower shall pay to the
Administrative Agent, on or before the Business Day immediately following the
date of such Letter of Credit Disbursement, an amount equal to such Letter of
Credit Disbursement. If the Borrower shall fail to pay any amount required to be
paid under this paragraph on or before such Business Day (or to cause payment
thereof when due pursuant to a Revolving Credit Borrowing), then (i) such unpaid
amount shall bear interest, for each day from and including such Business Day to
but excluding the date of payment, at a rate per annum equal to the interest
rate applicable to overdue ABR Loans that are Revolving Loans pursuant to
Section 2.07 (provided that the 2.00% margin applicable to overdue Loans shall
not be applicable until the first Business Day after the Borrower receives
notice from the Administrative Agent that such Letter of Credit Disbursement has
been or will be made), (ii) the Administrative Agent shall notify the Fronting
Bank and the Revolving Credit Lenders thereof, (iii) each Revolving Credit
Lender shall comply with its obligation under paragraph (d) above by wire
transfer of immediately available funds, in the
49
same manner as provided in Section 2.02(c) with respect to Loans made by such
Revolving Credit Lender (and Section 2.02(d) shall apply, mutatis mutandis, to
the payment obligations of the Revolving Credit Lenders) and (iv) the
Administrative Agent shall promptly pay to the Fronting Bank amounts so received
by it from the Revolving Credit Lenders. The Administrative Agent shall promptly
pay to the Fronting Bank on a pro rata basis with respect to outstanding Letter
of Credit Disbursements any amounts received by it from the Borrower pursuant to
this paragraph prior to the time that any Revolving Credit Lender makes any
payment pursuant to paragraph (d) above; any such amounts received by the
Administrative Agent thereafter shall be promptly remitted by the Administrative
Agent to the Revolving Credit Lenders that shall have made such payments and to
the Fronting Bank, as their interests may appear.
(f) Obligations Absolute. The Borrower's obligations to reimburse
Letter of Credit Disbursements as provided in paragraph (e) above shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement, under any and all circumstances
whatsoever, and irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, setoff, defense or other
right that the Borrower, any other party guaranteeing, or otherwise
obligated with, the Borrower, any Subsidiary or other Affiliate thereof
or any other person may at any time have against the beneficiary under
any Letter of Credit, the Fronting Bank, the Administrative Agent or
any Lender (other than the defense of payment in accordance with the
terms of this Agreement or a defense based on the gross negligence or
wilful misconduct of the Fronting Bank) or any other person, whether in
connection with this Agreement, any other Loan Document or any other
related or unrelated agreement or transaction;
(iv) any draft or other document presented under a 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, provided that payment by the Fronting Bank shall not have
constituted gross negligence or wilful misconduct of the Fronting Bank;
(v) payment by the Fronting Bank under a Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, provided that payment by the
Fronting Bank shall not have constituted gross negligence or wilful
misconduct of the Fronting Bank; and
(vi) any other act or omission to act or delay of any kind of
the Fronting Bank, the Lenders, the Administrative Agent or any other
person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of
this Section 2.20(c), constitute a legal or equitable discharge of the
50
Borrower's obligations hereunder, provided that such act or omission
shall not have constituted gross negligence or wilful misconduct of the
Fronting Bank.
(g) Disbursement Procedures. The Fronting Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Fronting Bank shall as promptly
as possible give telephonic notification, confirmed by telecopy, to the
Administrative Agent and the Borrower of such demand for payment and whether the
Fronting Bank has made or will make a Letter of Credit Disbursement thereunder,
provided that any failure to give or delay in giving such notice shall not
relieve the Borrower of its obligation to reimburse the Fronting Bank and the
Lenders with respect to any such Letter of Credit Disbursement. The
Administrative Agent shall promptly give each Revolving Credit Lender notice
thereof.
(h) Interim Interest. If the Fronting Bank shall make any Letter of
Credit Disbursement in respect of a Letter of Credit, then, unless the Borrower
shall reimburse such Letter of Credit Disbursement in full on such date, the
unpaid amount shall bear interest for the account of the Fronting Bank, for each
day from and including the date of such Letter of Credit Disbursement, to but
excluding the earlier of the date of payment or the date on which interest shall
commence to accrue thereon as provided in subparagraph (e) above, at the rate
per annum that would apply to such amount if such amount were an ABR Loan.
(i) Liability of the Fronting Bank. Without limiting the generality of
paragraph (f) above, it is expressly understood and agreed that the absolute and
unconditional obligation of the Borrower hereunder to reimburse Letter of Credit
Disbursements will not be excused by the gross negligence or wilful misconduct
of the Fronting Bank, except as otherwise expressly provided in said paragraph
(f). However, nothing in this Agreement shall be construed to excuse the
Fronting Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Fronting Bank's gross negligence or wilful
misconduct in determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof. It is understood that the
Fronting Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation in making any payment under any
Letter of Credit and, except as otherwise expressly provided in said paragraph
(f), (i) the Fronting Bank's exclusive reliance on the documents presented to it
under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereunder equals the
amount of such draft and whether or not any document presented pursuant to such
Letter of Credit proves to be insufficient in any respect, if such document on
its face appears to be in order, and whether or not any other statement or any
other document presented pursuant to such Letter of Credit proves to be forged
or invalid or any statement therein proves to be inaccurate or untrue in any
respect whatsoever and (ii) any noncompliance in any immaterial respect of the
documents presented under such Letter of Credit with the terms thereof shall, in
each case, be deemed not to constitute wilful misconduct or gross negligence of
the Fronting Bank.
51
(j) Resignation or Removal of the Fronting Bank. The Fronting Bank may
resign at any time by giving 180 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower, and may be removed at any
time by the Borrower by notice to the Fronting Bank, the Administrative Agent
and the Lenders, subject in each case to the appointment by the Borrower of a
replacement Fronting Bank reasonably satisfactory to the Administrative Agent,
provided, that the Fronting Bank may not resign as to any Letter of Credit
previously issued by it. Subject to the next succeeding sentences of this
paragraph (j), upon the acceptance of any appointment as the Fronting Bank
hereunder by a successor Fronting Bank (which shall be a Lender), such successor
shall succeed to and become vested with all the interests, rights and
obligations of the retiring Fronting Bank and the retiring Fronting Bank shall
be discharged from its obligations to issue additional Letters of Credit
hereunder. At the time such removal or resignation shall become effective, the
Borrower shall pay all accrued and unpaid fees of the Fronting Bank pursuant to
Section 2.05(b)(ii). The acceptance of any appointment as the Fronting Bank
hereunder by a successor Fronting Bank shall be evidenced by an agreement
entered into by such successor, in a form satisfactory to the Borrower and the
Administrative Agent, and, from and after the effective date of such agreement,
(i) such successor Fronting Bank shall have all the rights and obligations of
the previous Fronting Bank under this Agreement and the other Loan Documents and
(ii) references herein and in the other Loan Documents to the term "Fronting
Bank" shall be deemed to refer to such successor or to any previous Fronting
Bank, or to such successor and all previous Fronting Banks, as the context shall
require. After the resignation or removal of the Fronting Bank hereunder, the
retiring Fronting Bank shall remain a party hereto and shall continue to have
all the rights and obligations of a Fronting Bank under this Agreement and the
other Loan Documents with respect to Letters of Credit issued by it prior to
such resignation or removal (including the right to receive accrued and unpaid
fees pursuant to Section 2.05(b)(ii)), but shall not be required to issue
additional Letters of Credit.
(k) Cash Collateralization. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Credit Lenders holding participations in
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit) of such Event of Default
and the amount to be deposited, deposit in an account with the Collateral Agent,
for the benefit of the Lenders, an amount in cash equal to the Letter of Credit
Exposure as of such date. Such deposit shall be held by the Collateral Agent as
collateral for the payment and performance of the Obligations. The Collateral
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits in Permitted Investments, which investments shall be
made at the option and sole discretion of the Collateral Agent (provided that
the Collateral Agent shall use reasonable efforts to make such investments),
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall (i)
automatically be applied by the Administrative Agent to reimburse the Fronting
Bank for Letter of Credit Disbursements for which it has not been reimbursed,
(ii) be held for the satisfaction of the reimbursement obligations of the
Borrower for the Letter of Credit Exposure at such time and (iii) if the
maturity of the Loans has been accelerated (but subject to the consent of
52
Revolving Credit Lenders holding participations in outstanding Letters of Credit
representing greater than 50% of the aggregate undrawn amount of all outstanding
Letters of Credit), be applied to satisfy the Obligations. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrower represents and warrants to each of
the Lenders that:
SECTION 3.01. Organization; Powers. Each of Holdings, the Borrower and
each of the Subsidiaries (a) is duly organized, validly existing and in good
standing (or, if applicable in a foreign jurisdiction, enjoys the equivalent
status under the laws of any jurisdiction of organization outside the United
States) under the laws of the jurisdiction of its organization, (b) has all
requisite power and authority to own its property and assets and to carry on its
business as now conducted and as proposed to be conducted, (c) is qualified to
do business in every jurisdiction where such qualification is required, except
where the failure so to qualify could not reasonably be expected to result in a
Material Adverse Effect, and (d) has the power and authority to execute, deliver
and perform its obligations under each of the Loan Documents and each other
agreement or instrument contemplated thereby to which it is or will be a party
and, in the case of the Borrower, to borrow and otherwise obtain credit
hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by
Holdings, the Borrower and the Subsidiaries of each of the Loan Documents to
which they are a party and the borrowings hereunder, the Share Exchange and the
other transactions contemplated hereby and thereby (collectively, the
"Transactions") (a) have been duly authorized by all corporate, partnership or
stockholder action, as the case may be, required to be obtained by Holdings, the
Borrower and the Subsidiaries and, except to the extent failure to obtain such
action could not reasonably be expected to result in a Material Adverse Effect,
by any corporate, partnership or stockholder action required of any other party
to the Share Exchange and (b) do not and will not (i) violate (A) any provision
of law, statute, rule or regulation, or of the certificate or articles of
incorporation or partnership agreement, other constitutive documents or by-laws
of Holdings, the Borrower or any Subsidiary, (B) any applicable order of any
court or any rule, regulation or order of any Governmental Authority or (C) any
provision of any indenture, certificate of designation for preferred stock,
agreement or other instrument to which Holdings, the Borrower or any Subsidiary
is a party or by which any of them or any of their property is or may be bound,
(ii) be in conflict with, result in a breach of or constitute (alone or with
notice or lapse of time or both) a default under any such indenture, certificate
of designation for preferred stock, agreement or other instrument, where any
such conflict, violation, breach or default referred to in clause (i) or (ii) of
this Section 3.02, individually or in the aggregate could reasonably be expected
to have a Material Adverse Effect, or (iii) result in the creation or imposition
of any Lien upon or with respect to any property or assets now owned or
hereafter
53
acquired by Holdings, the Borrower or any Subsidiary, other than the Liens
created by the Loan Documents.
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by Holdings and the Borrower and constitutes, and each other Loan
Document when executed and delivered by Holdings, the Borrower and each other
Loan Party which is party thereto will constitute, a legal, valid and binding
obligation of Holdings, the Borrower and such Loan Party enforceable against
Holdings, the Borrower and such Loan Party in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting creditors' rights generally and
except as enforceability may be limited by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except for
(a) the filing of Uniform Commercial Code financing statements and filings with
the United States Patent and Trademark Office and the United States Copyright
Office, (b) such as have been made or obtained and are in full force and effect
and (c) such actions, consents and approvals the failure to obtain or make which
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.05. Financial Statements. Each of Holdings and its
subsidiaries and SAC and its subsidiaries has heretofore furnished to the
Lenders (a) its consolidated balance sheets and consolidated statements of
operations and of cash flows, audited by and accompanied by the opinion of
Deloitte & Touche L.L.P. as of and for the fiscal year ended December 30, 1997,
in the case of Holdings, and PriceWaterhouse Coopers as of and for the fiscal
year ended December 27, 1997, in the case of SAC, and (b) its unaudited
condensed consolidated balance sheet and condensed consolidated statements of
operations and of cash flows as of and for the fiscal period ended September 30,
1998. Such financial statements present fairly the financial condition and
results of operations of each of Holdings and its subsidiaries and SAC and its
subsidiaries and their respective consolidated subsidiaries as of such dates and
for such periods. Except as disclosed in the Information Memorandum, none of
Holdings, the Borrower and the Subsidiaries has or shall have as of the Closing
Date any material Guarantee, contingent liability or liability for taxes, or any
long-term lease or unusual forward or long-term commitment that is not reflected
in the foregoing statements or the notes thereto. Such financial statements were
prepared in accordance with GAAP applied on a consistent basis. On and as of the
Closing Date, the financial projections of Holdings, the Borrower and the
Subsidiaries for the period from January 1, 1998 through the last day of Fiscal
Year 2006 (giving effect to the Transactions) previously delivered to Lenders
(the "Projections") are based on good faith estimates and assumptions made by
the management of the Borrower, it being recognized, however, that projections
as to future events are not to be viewed as facts and that the actual results
during the period or periods covered by the Projections may differ from the
projected results and that the differences may be material. Notwithstanding the
foregoing, as of the Effective Date, management of the Borrower believed that
the Projections were reasonable and attainable.
54
SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the assets, business, properties, financial condition or
results of operations of Holdings, the Borrower and the Subsidiaries, taken as a
whole, since December 31, 1997
SECTION 3.07. Title to Properties; Possession Under Leases. Each of
Holdings, the Borrower and the Subsidiaries has good and marketable title to, or
valid leasehold interests in, or easements or other limited property interests
in, all its material properties and assets, except for minor defects in title
that do not interfere with its ability to conduct its business as currently
conducted or to utilize such properties and assets for their intended purposes.
All such material properties and assets are free and clear of Liens, other than
Liens expressly permitted by Section 6.02.
(b) Each of Holdings, the Borrower and the Subsidiaries has complied
with all obligations under all material leases to which it is a party, except
where the failure to comply would not have a Material Adverse Effect, and all
such leases are in full force and effect, except leases in respect of which the
failure to be in full force and effect could not reasonably be expected to have
a Material Adverse Effect. Each of Holdings, the Borrower and the Subsidiaries
enjoys peaceful and undisturbed possession under all such material leases, other
than leases which, individually or in the aggregate, are not material to the
Borrower and the Subsidiaries, taken as a whole, and in respect of which the
failure to enjoy peaceful and undisturbed possession could not reasonably be
expected to, individually or in the aggregate, result in a Material Adverse
Effect.
(c) After giving effect to the Share Exchange, each of Holdings, the
Borrower and the Subsidiaries owns or possesses, or could obtain ownership or
possession of, on terms not materially adverse to it, all patents, trademarks,
service marks, trade names, copyrights, licenses and rights with respect thereto
necessary for the present conduct of its business, without any known conflict
with the rights of others, and free from any burdensome restrictions, except
where such conflicts and restrictions could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 3.08 Subsidiaries. Schedule 3.08 sets forth as of the Closing
Date the name and jurisdiction of organization of each Subsidiary and, as to
each such Subsidiary, the percentage of each class of Capital Stock owned by the
Borrower or by any Subsidiary.
SECTION 3.09. Litigation; Compliance with Laws. Except as set forth in
Schedule 3.09, there are not any material actions, suits or proceedings at law
or in equity or by or before any Governmental Authority now pending or, to the
knowledge of the Borrower, threatened against or affecting Holdings, the
Borrower or any Subsidiary or any business, property or rights of any such
person (i) that involve any Loan Document or, as of the Closing Date, the
Transactions or (ii) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.
55
(b) None of Holdings, the Borrower, the Subsidiaries and their
respective material properties or assets is in violation of (nor will the
continued operation of their material properties and assets as currently
conducted violate) any law, rule or regulation (including any Environmental
Law), or is in default with respect to any judgment, writ, injunction or decree
of any Governmental Authority, where such violation or default could reasonably
be expected to result in a Material Adverse Effect.
SECTION 3.10. Agreements. None of Holdings, the Borrower and the
Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(b) None of Holdings, the Borrower and the Subsidiaries is in default
in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, in either case where such default could reasonably
be expected to result in a Material Adverse Effect. Immediately after giving
effect to the Transactions, no Default or Event of Default shall have occurred
and be continuing.
SECTION 3.11. Federal Reserve Regulations. None of Holdings, the
Borrower and the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, (i) to
purchase or carry Margin Stock or to extend credit to others for the purpose of
purchasing or carrying Margin Stock or to refund indebtedness originally
incurred for such purpose, or (ii) for any purpose which entails a violation of,
or which is inconsistent with, the provisions of the Regulations of the Board,
including Regulation U or X.
SECTION 3.12. Investment Company; Public Utility Holding Company. None
of Holdings, the Borrower and the Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of
the Loans and will request the issuance of Letters of Credit only to refinance
certain existing indebtedness of VSI and SAC, to finance capital expenditures
and for working capital and other general corporate purposes of Holdings, the
Borrower and the Subsidiaries.
SECTION 3.14. Tax Returns. Each of Holdings, the Borrower and the
Subsidiaries has timely filed or caused to be timely filed all Federal, and all
material state and local tax returns required to have been filed by it and has
paid or caused to be paid all taxes shown thereon to be due and payable by it
and all assessments received by it, except taxes or assessments that are being
contested in good faith by appropriate proceedings in accordance with Section
5.03 and for which Holdings, the Borrower or such Subsidiary has set aside on
its books
56
adequate reserves in accordance with GAAP. Each of Holdings, the Borrower and
the Subsidiaries has paid in full or made adequate provision (in accordance with
GAAP) for the payment of all taxes due with respect to all periods ending on or
before the Closing Date, which taxes, if not paid or adequately provided for,
could reasonably be expected to have a Material Adverse Effect. Except as set
forth on Schedule 3.14, as of the Closing Date, with respect to each of
Holdings, the Borrower, and the Subsidiaries, (a) no material claims are being
asserted in writing with respect to any taxes, (b) no presently effective
waivers or extensions of statutes of limitation with respect to taxes have been
given or requested, (c) no tax returns are being examined by, and no written
notification of intention to examine has been received from, the Internal
Revenue Service or, with respect to any material potential tax liability, any
other taxing authority and (d) no currently pending issues have been raised in
writing by the Internal Revenue Service or, with respect to any material
potential tax liability, any other taxing authority. For purposes hereof,
"taxes" shall mean any present or future tax, levy, impost, duty, charge,
assessment or fee of any nature (including interest, penalties and additions
thereto) that is imposed by any Governmental Authority.
SECTION 3.15. No Material Misstatements. The written information,
reports, financial statements, exhibits and schedules furnished by or on behalf
of Holdings, the Borrower or any of the Subsidiaries to the Syndication Agent,
the Administrative Agent or any Lender in connection with the negotiation of any
Loan Document or included therein or delivered pursuant thereto (including the
Confidential Information Memorandum (the "Information Memorandum") dated October
1998 relating to the Borrower), when taken as a whole, did not contain, and as
they may be amended, supplemented or modified from time to time, will not
contain, as of the Closing Date any material misstatement of fact and did not
omit, and as they may be amended, supplemented or modified from time to time,
will not omit, to state as of the Closing Date any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were, are or will be made, not materially misleading in their presentation of
the Transactions or of Holdings, the Borrower, and the Subsidiaries taken as a
whole.
(b) All financial projections delivered after the Closing Date
concerning Holdings, the Borrower and the Subsidiaries that are or have been
made available to the Syndication Agent, the Administrative Agent or any Lender
by Holdings, the Borrower or any Subsidiary, including those contained in the
Information Memorandum, have been or will be prepared in good faith based upon
assumptions believed by Holdings and the Borrower to be reasonable.
SECTION 3.16. Employee Benefit Plans. Each of Holdings, the Borrower
and its ERISA Affiliates is in compliance with the applicable provisions of
ERISA and the provisions of the Code relating to ERISA and the regulations and
published interpretations thereunder except for such noncompliance which could
not reasonably be expected to result in a Material Adverse Effect. No Reportable
Event has occurred as to which Holdings, the Borrower or any ERISA Affiliate was
required to file a report with the PBGC, other than reports for which the 30 day
notice requirement is waived, reports that have been filed and reports the
failure of which to file could not reasonably be expected to result in a
Material Adverse Effect. As of the Closing Date,
57
the present value of all benefit liabilities under each Plan (on a termination
basis and based on those assumptions used to fund such Plan) did not, as of the
last annual valuation date applicable thereto for which a valuation is
available, exceed by more than $2,000,000 the value of the assets of such Plan,
and the present value of all benefit liabilities of all underfunded Plans (based
on those assumptions used to fund each such Plan) did not, as of the last annual
valuation dates applicable thereto for which valuations are available, exceed by
more than $4,000,000 the value of the assets of all such underfunded Plans. None
of Holdings, the Borrower and the ERISA Affiliates has incurred or could
reasonably be expected to incur any Withdrawal Liability that could reasonably
be expected to result in a Material Adverse Effect. None of Holdings, the
Borrower and the ERISA Affiliates have received any written notification that
any Multiemployer Plan is in reorganization or has been terminated, within the
meaning of Title IV of ERISA, and no Multiemployer Plan is reasonably expected
to be in reorganization or to be terminated, where such reorganization or
termination has resulted or could reasonably be expected to result, through
increases in the contributions required to be made to such Plan or otherwise, in
a Material Adverse Effect.
SECTION 3.17. Environmental Matters. Except as set forth in Schedule
3.17:
(a) There has not been a Release or threatened Release of Hazardous
Materials at, on, under or around the properties currently owned or currently or
formerly operated by Holdings, the Borrower and the Subsidiaries (the
"Properties") in amounts or concentrations which (i) constitute or constituted a
violation of Environmental Laws, except as could not reasonably be expected to
have a Material Adverse Effect; (ii) would reasonably be expected to give rise
to an Environmental Claim which, in any such case or in the aggregate, is
reasonably likely to result in a Material Adverse Effect; or (iii) could
reasonably be expected to impair materially the fair saleable value of any
material currently owned Property;
(b) The Properties and all operations of Holdings, the Borrower and the
Subsidiaries are in compliance, and in the last five years have been in
compliance, with all Environmental Laws, and all necessary Environmental Permits
required to be obtained by Holdings and its Subsidiaries have been obtained and
are in effect, except to the extent that such non-compliance or failure to
obtain any necessary permits, in the aggregate, are not reasonably likely to
result in a Material Adverse Effect;
(c) None of Holdings, the Borrower and the Subsidiaries has received
any written notice of an Environmental Claim in connection with the Properties
or the operations of the Borrower or the Subsidiaries or with regard to any
person whose liabilities for environmental matters Holdings, the Borrower or the
Subsidiaries has retained or assumed, in whole or in part, contractually, by
operation of law or otherwise, which, in either such case or in the aggregate,
is reasonably likely to result in a Material Adverse Effect;
(d) Hazardous Materials have not been transported from the Properties,
nor have Hazardous Materials been generated, treated, stored or disposed of at,
on, under or around any of the Properties in a manner that could reasonably give
rise to liability to Holdings, the Borrower or any Subsidiary under any
Environmental Law, nor have any of Holdings, the
58
Borrower and the Subsidiaries retained or assumed any liability, contractually,
by operation of law or otherwise, with respect to the generation, treatment,
storage or disposal of Hazardous Materials, which, in each case, individually or
in the aggregate, is reasonably likely to result in a Material Adverse Effect;
(e) No Lien in favor of any Governmental Authority for (i) any
liability under any Environmental Law or (ii) damages arising from or costs
incurred by such Governmental Authority in response to a Release or threatened
Release of Hazardous Materials into the environment has been recorded with
respect to currently owned or leased properties except for Liens permitted by
Section 6.02; and
(f) The representations and warranties in this Section 3.17 with
respect to those portions of the Properties not actually controlled by the
Borrower and its Subsidiaries are made to the knowledge of Holdings and the
Borrower.
SECTION 3.18. Capitalization of Holdings and the Borrower. The
authorized Capital Stock, the par value thereof and the amount of such
authorized Capital Stock issued and outstanding for each of Holdings and the
Borrower is set forth on Schedule 3.18(a) as of the Closing Date. All
outstanding shares of Capital Stock of the Borrower are fully paid and
nonassessable, are owned beneficially and of record by Holdings, and are free
and clear of all Liens and encumbrances whatsoever other than the Liens created
by the Loan Documents.
(b) As of the Closing Date, except as set forth on Schedule 3.18(b),
there are no outstanding subscriptions, options, warrants, calls, rights
(including preemptive rights) or other agreements or commitments (including
pursuant to management or employee stock plans or similar plans) of any nature
relating to any Capital Stock of Holdings, the Borrower or any Subsidiary.
SECTION 3.19. Security Documents. The Pledge Agreement is effective to
create in favor of the Collateral Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable security interest in the Collateral (as
defined in the Pledge Agreement) and, when the Pledged Stock, together with duly
executed stock transfer powers, is delivered to the Collateral Agent (or, as
applicable in the case of Capital Stock of foreign Subsidiaries, the requisite
filings or registrations are made), the Pledge Agreement will constitute a fully
perfected first priority Lien on, and security interest in, all right, title and
interest of the pledgors thereunder in such Pledged Stock, in each case prior
and superior in right to any other person.
(b) Each of the Security Agreement and the Collateral Account Agreement
is effective to create in favor of the Collateral Agent, for the ratable benefit
of the Secured Parties, a legal, valid and enforceable security interest in the
Collateral subject thereto (as defined, respectively, in the Security Agreement
and the Collateral Account Agreement) and, when financing statements in
appropriate form are filed in the offices specified on the schedules to the
Security Agreement and, in the case of cash included in the Collateral under the
Collateral Account Agreement, when such cash is deposited in the Collateral
Account, each of the Security Agreement and the Collateral Account Agreement
will constitute a fully perfected Lien on, and
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security interest in, all right, title and interest of the grantors thereunder
in such Collateral, to the extent contemplated therein and subject to Section
9-306 of the Uniform Commercial Code, and the proceeds thereof, in each case
prior and superior in right to any other person, other than with respect to
Liens expressly permitted by Section 6.02, it being understood that (i) no
financing statement will be required to be filed hereunder in the State of
Tennessee unless the Borrower or any Subsidiary shall acquire or have assets in
Tennessee having a value in an aggregate amount in excess of $1,000,000, in
which case the Borrower shall promptly notify the Collateral Agent of such
amount, and shall file such financing statements as the Collateral Agent shall
reasonably request and (ii) the Borrower and its Subsidiaries shall not be
required to grant a Lien under the Loan Documents on any property to the extent
that the grant of such Lien is prohibited by a Service Contract which was not
created in anticipation of this Agreement; provided, however, that the aggregate
amount of Capital Expenditures made pursuant to Service Contracts entered into
after the Closing Date (excluding renewals of Service Contracts existing on the
Closing Date) prohibiting the grant of such a Lien (other than with respect to
tangible assets located on the property that is the subject of such Service
Contract) shall not exceed $15,000,000 in the aggregate.
(c) The Intellectual Property Security Agreement is effective to create
in favor of the Collateral Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable security interest in the Collateral (as
defined in the Intellectual Property Security Agreement), and when financing
statements in appropriate form are filed in the offices specified on the
schedules to the Security Agreement and the Intellectual Property Security
Agreement is filed in the United States Patent and Trademark Office and the
United States Copyright Office, the Intellectual Property Security Agreement
will constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties in such Collateral and, to the extent
contemplated therein and subject to Section 9-306 of the Uniform Commercial
Code, the proceeds thereof, in each case prior and superior in right to any
other person (it being understood that subsequent recordings in the United
States Patent and Trademark Office and the United States Copyright Office may be
necessary to perfect a lien on registered trademarks, trademark applications and
copyrights acquired by the Loan Parties after the date hereof), other than with
respect to the rights of persons pursuant to Liens expressly permitted by
Section 6.02.
SECTION 3.20. Labor Matters. Except as set forth in Schedule 3.20,
there are no strikes, lockouts or slowdowns pending or threatened against
Holdings, the Borrower or any Subsidiary which, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect.
The hours worked by and payments made to employees of Holdings, the Borrower and
the Subsidiaries have not been in violation in any material respect of the Fair
Labor Standards Act or any other applicable law dealing with such matters,
except as could not reasonably be expected to result in a Material Adverse
Effect. All material payments due from Holdings, the Borrower or any Subsidiary
or for which any claim may be made against Holdings, the Borrower or any
Subsidiary, on account of wages and employee health and welfare insurance and
other benefits have been paid or accrued as a liability on the books of
Holdings, the Borrower or such Subsidiary to the extent required by GAAP, except
as could not reasonably be expected to result in a Material Adverse Effect. The
consummation of the Transactions will not give rise to a right of termination or
right of renegotiation on the part of any union under any
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collective bargaining agreement to which Holdings, the Borrower or any
Subsidiary (or any predecessor) is a party or by which Holdings, the Borrower or
any Subsidiary (or any predecessor) is bound, other than collective bargaining
agreements which, individually or in the aggregate, are not material to
Holdings, the Borrower and the Subsidiaries taken as a whole.
SECTION 3.21. Insurance. Schedule 3.21 sets forth a true, complete and
correct description of all insurance maintained by Holdings or the Borrower or
by Holdings or the Borrower for its Subsidiaries as of the Closing Date. As of
such date, such insurance is in full force and effect and all premiums have been
duly paid. Holdings or the Borrower and its Subsidiaries have insurance in such
amounts and covering such risks and liabilities (and with such deductibles and
exclusions) as are in accordance with normal industry practice.
SECTION 3.22. Solvency. Immediately after the consummation of the
transactions to occur on the Closing Date and immediately following the making
of each Loan made on the Closing Date and after giving effect to the application
of the proceeds of such Loans, (i) the fair value of the assets of Holdings, the
Borrower and the Subsidiaries on a consolidated basis, at a fair valuation, will
exceed the debts and liabilities, subordinated, contingent or otherwise, of
Holdings, the Borrower and the Subsidiaries on a consolidated basis; (ii) the
present fair saleable value of the property of Holdings, the Borrower and the
Subsidiaries on a consolidated basis will be greater than the amount that will
be required to pay the probable liability of Holdings, the Borrower and the
Subsidiaries on a consolidated basis on their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (iii) Holdings, the Borrower and the Subsidiaries
on a consolidated basis will be able to pay their debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (iv) Holdings, the Borrower and the Subsidiaries on a
consolidated basis will not have unreasonably small capital with which to
conduct the businesses in which they are engaged as such businesses are
conducted and are proposed to be conducted following the Closing Date.
(b) None of Holdings and the Borrower intends to, none will permit any
Subsidiary to, and none believes that it or any Subsidiary will, incur debts
beyond its ability to pay such debts as they mature, taking into account the
timing of and amounts of cash to be received by it or any such Subsidiary and
the timing of the amounts of cash to be payable on or in respect of its
Indebtedness or the Indebtedness of any such Subsidiary.
SECTION 3.23. Year 2000 Issues. Any reprogramming required to permit
the proper functioning (but only to the extent that such proper functioning
would otherwise be impaired by the occurrence of the year 2000) in and following
the year 2000 of computer systems and other equipment containing embedded
microchips, in either case owned or operated by Holdings, the Borrower or any of
its Subsidiaries or used or relied upon in the conduct of their business
(including any such systems and other equipment supplied by others or with which
the computer systems of Holdings, the Borrower or any of its Subsidiaries
interface), and the testing of all such systems and other equipment as so
reprogrammed, will be completed by September 30, 1999 except where failure to
reprogram or test would not reasonably be expected to have a Material Adverse
Effect. The costs to Holdings, the Borrower and its Subsidiaries that have not
61
been incurred as of the date hereof for such reprogramming and testing and for
other reasonably foreseeable consequences to them of any improper functioning of
other computer systems and equipment containing embedded microchips due to the
occurrence of the year 2000 could not reasonably be expected to have a Material
Adverse Effect. At the request of the Administrative Agent, Borrower shall
provide to the Administrative Agent true and correct copies of its written plans
relating to Year 2000 Issues as Borrower may have available and related
implementation budgets.
ARTICLE IV.
CONDITIONS OF LENDING
The obligations of the Lenders to make Loans and of the
Fronting Bank to issue Letters of Credit hereunder (each, a "Credit Event") are
subject to the satisfaction of the following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing and on
the date of each issuance or renewal of a Letter of Credit (other than a
Borrowing in which Revolving Loans are refinanced with new Revolving Loans as
contemplated by Section 2.02(f) without any increase in the aggregate principal
amount of Revolving Loans outstanding and any extension or renewal of any Letter
of Credit without any increase in the stated amount of such Letter of Credit):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 (or such notice shall have been deemed
given in accordance with the last paragraph of Section 2.03) or, in the case of
the issuance of a Letter of Credit, the Fronting Bank and the Administrative
Agent shall have received a notice requesting the issuance of such Letter of
Credit as required by Section 2.20(b).
(b) The representations and warranties set forth in each Loan Document
shall be true and correct in all material respects on and as of the date of such
Borrowing with the same effect as though made on and as of such date, except to
the extent such representations and warranties expressly relate to an earlier
date.
(c) At the time of and immediately after such Borrowing or issuance of
such Letter of Credit, as the case may be, no Event of Default or Default shall
have occurred and be continuing.
Each Borrowing and each issuance of a Letter of Credit (except those specified
in the parenthetical contained in the introductory paragraph of this Section
4.01) shall be deemed to constitute a representation and warranty by the
Borrower on the date of such Borrowing or issuance, as the case may be, as to
the matters specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. First Credit Event. On the Closing Date:
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(a) The Syndication Agent and the Administrative Agent shall have
received, on behalf of itself, the Lenders and the Fronting Bank, a favorable
written opinion of (i) Simpson Thacher & Bartlett and (ii) counsel for Holdings
and the Borrower in South Carolina, California and Connecticut, in each case
substantially to the effect set forth in Exhibit K-2, in each case (A) dated the
Closing Date, (B) addressed to the Syndication Agent, the Fronting Bank, the
Administrative Agent and the Lenders, and (C) covering such other matters
relating to the Loan Documents and the Transactions as the Syndication Agent or
the Administrative Agent may reasonably request. Each of Holdings and the
Borrower hereby instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and
extensions of credit hereunder and the other Loan Documents shall be reasonably
satisfactory to the Lenders, to the Fronting Bank and to Skadden, Arps, Slate,
Meagher & Flom LLP, counsel for the Syndication Agent and the Administrative
Agent.
(c) The Syndication Agent and the Administrative Agent shall have
received (i) a copy of the certificate or articles of incorporation, including
all amendments thereto, of each Loan Party, certified as of a recent date by the
Secretary of State of the state of its organization, and a certificate as to the
good standing of each Loan Party as of a recent date from such Secretary of
State; (ii) a certificate of the Secretary or Assistant Secretary of each Loan
Party dated the Closing Date and certifying (A) that attached thereto is a true
and complete copy of the by-laws of such Loan Party as in effect on the Closing
Date and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and complete
copy of resolutions or other authorizing action duly adopted by the Board of
Directors of such Loan Party authorizing the execution, delivery and performance
of the Loan Documents to which such person is a party and, in the case of the
Borrower, the borrowings hereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect, (C) that the
certificate or articles of incorporation of such Loan Party have not been
amended since the date of the last amendment thereto shown on the certificate of
good standing furnished pursuant to clause (i) above, and (D) as to the
incumbency and specimen signature of each officer executing any Loan Document or
any other document delivered in connection herewith on behalf of such Loan
Party; (iii) a certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the certificate
pursuant to (ii) above; and (iv) such other documents as the Syndication Agent,
the Administrative Agent, the Lenders, the Fronting Bank or Skadden, Arps,
Slate, Meagher & Flom LLP, counsel for Syndication Agent and the Administrative
Agent, may reasonably request.
(d) The Syndication Agent and the Administrative Agent shall have
received a certificate of the Borrower, dated the Closing Date and signed by a
Financial Officer of and on behalf of the Borrower, confirming compliance with
the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01.
(e) The Syndication Agent and the Administrative Agent shall have
received all Fees and other amounts due and payable on or prior to the Closing
Date, including, to the
63
extent invoiced, reimbursement or other payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder or under any other
Loan Document.
(f) Each of the Guarantee Agreements and the Indemnity, Subrogation and
Contribution Agreement shall have been duly executed by the parties thereto and
delivered to the Collateral Agent and shall be in full force and effect.
(g) The Pledge Agreement shall have been duly executed by the parties
thereto and delivered to the Collateral Agent and shall be in full force and
effect, and all the outstanding Capital Stock of the Borrower and each domestic
Subsidiary owned by Holdings or a Wholly-Owned Subsidiary and 65% of each
foreign Subsidiary shall have been duly and validly pledged thereunder to the
Collateral Agent for the ratable benefit of the Secured Parties and certificates
representing such shares, accompanied by instruments of transfer and stock
powers endorsed in blank, shall be in the actual possession of the Collateral
Agent.
(h) The Security Agreement, the Intellectual Property Security
Agreement and the Collateral Account Agreement shall have been duly executed by
the Loan Parties thereto and shall have been delivered to the Collateral Agent
and shall be in full force and effect on such date and each document (including
each Uniform Commercial Code financing statement) required by law or reasonably
requested by the Administrative Agent to be filed, registered or recorded in
order to create in favor of the Collateral Agent for the benefit of the Secured
Parties a valid, legal and perfected first-priority security interest in and
lien on the Collateral described in each such agreement (subject to any Lien
expressly permitted by Section 6.02 and other than goods located in the State of
Tennessee) shall have been delivered to the Collateral Agent.
(i) The Collateral Agent shall have received the results of a search of
the Uniform Commercial Code filings made with respect to Holdings, the Borrower
and each other Loan Party in the states in which the chief executive office of
each such person is located together with copies of the financing statements
disclosed by such search, accompanied by evidence satisfactory to the
Administrative Agent that the Liens indicated in any such financing statement
would be permitted under Section 6.02 or have been released. The Administrative
Agent shall have received duly executed documentation evidencing the termination
of all the security interests granted in the Pledged Stock and in any other
Collateral in connection with existing Indebtedness of the Borrower or any of
the Subsidiaries or any other Person (other than security interests permitted by
Section 6.02).
(j) The Administrative Agent shall have received copies of, or an
insurance broker's or agent's certificate as to coverage under, the insurance
policies required by Section 5.02 and the applicable provisions of the Security
Documents, each of which shall be endorsed or otherwise amended to include a
"standard" or "New York" lender's loss payable endorsement and to name the
Collateral Agent as additional insured, in form and substance reasonably
satisfactory to the Administrative Agent.
(k) The Transactions shall have been consummated prior to or
simultaneously with the initial Credit Event hereunder in accordance with
applicable law and the Share
64
Exchange Agreement and all related documentation and otherwise on terms
reasonably satisfactory to the Lenders; and the conditions to Holdings'
obligations set forth in the Share Exchange Agreement shall have been satisfied
without giving effect to any waiver or amendment in any manner materially
adverse to the Lenders that was not approved by the Lenders.
(l) After giving effect to the Transactions, (i) the Borrower, VSI and
SAC and the Subsidiaries shall have outstanding no preferred stock (other than
with respect to SAC preferred stock which will be redeemed or repaid in
accordance with Section 5.01(c) and preferred stock owned by Wholly-Owned
Subsidiaries) and no Indebtedness other than the Loans hereunder and
Indebtedness otherwise permitted under Section 6.01, (ii) Holdings shall have
outstanding no equity interest or Indebtedness other than its common equity, all
of which shall be owned, directly or indirectly by the Investors and former
management and (iii) the Funds and Fund Affiliates shall own directly or
indirectly not less than 66% of the outstanding common stock of Holdings.
(m) There shall have been no material adverse change in the assets,
business, properties, financial condition or results of operations of the
Borrower and the Subsidiaries on a consolidated basis since December 31, 1997.
(n) The Lenders shall have received (x) a reasonably satisfactory pro
forma consolidated balance sheet of Holdings as of September 29, 1998, together
with a certificate of Holdings, dated the Closing Date and signed by a Financial
Officer of the Borrower, to the effect that such statement fairly presents the
pro forma financial position of Holdings, the Borrower and the Subsidiaries in
accordance with GAAP (except to the extent otherwise noted) after giving effect
to the initial Credit Events and the Transactions, and the Lenders shall be
reasonably satisfied that such balance sheet and the transactions in connection
with the Share Exchange and the financing arrangements contemplated hereby are
not materially inconsistent with the Information Memorandum and the information,
the projections and the model contained therein. The Borrower shall also have
provided such other financial information as the Lenders shall reasonably have
requested in connection with the Share Exchange, (y) the Projections and (z) a
certificate of the Chief Financial Officer of the Borrower confirming that
EBITDA (giving effect to adjustments permitted to be made after the Closing Date
in accordance with the definition of such term), determined on a pro forma
consolidated basis for the Borrower and its subsidiaries for the twelve-month
period most recently ended prior to the Closing Date (adjusted to give effect to
the Share Exchange and other transactions contemplated on or about the Closing
Date as if such transactions occurred on the first day of such twelve-month
period), shall not be less than $42,000,000, such certificate to be in form and
substance reasonably satisfactory to Agents..
(o) All requisite material Governmental Authorities and all material
third parties shall have approved or consented to the Transactions to the extent
required, all applicable appeal periods shall have expired and there shall be no
governmental or judicial action, actual or threatened, that has or could have a
reasonable likelihood of restraining, preventing or imposing burdensome
conditions on the Share Exchange or the consummation of the other Transactions.
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(p) The Lenders shall have received a solvency letter in form and
substance satisfactory to the Lenders from Murray, Devine & Co. as to the
solvency of Holdings, the Borrower and the Subsidiaries on a consolidated basis,
after giving effect to the consummation of the other Transactions.
ARTICLE V.
AFFIRMATIVE COVENANTS
Each of Holdings and the Borrower covenants and agrees with
each Lender that so long as this Agreement shall remain in effect and until the
Commitments have been terminated and the principal of and interest on each Loan,
all Fees and all other expenses or amounts payable under any Loan Document shall
have been paid in full and all Letters of Credit have been cancelled or have
expired and all amounts drawn thereunder have been reimbursed in full, unless
the Required Lenders shall otherwise consent in writing, each of Holdings and
the Borrower will, and will cause each of the Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. Do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence, except as otherwise expressly permitted under Section 6.05,
and except for the liquidation or dissolution of Subsidiaries if the assets of
such corporations to the extent they exceed estimated liabilities are acquired
by the Borrower or a Subsidiary in such liquidation or dissolution, provided
that Subsidiaries that are Guarantors may not be liquidated into Subsidiaries
that are not Guarantors.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; comply in all material respects with
all material applicable laws, rules, regulations (including any Environmental
Law) and orders of any Governmental Authority, whether now in effect or
hereafter enacted; and at all times maintain and preserve all property material
to the conduct of such business and keep such property in good repair, working
order and condition and from time to time make, or cause to be made, all needful
and proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith, if any,
may be properly conducted at all times (in each case except as expressly
permitted by this Agreement).
(c) Within 90 days of the Closing Date, Borrower shall take, and/or
cause the Subsidiaries to take, all such actions as may be necessary in order
for SAC to become a Wholly-Owned Subsidiary of the Borrower.
SECTION 5.02. Insurance. Keep its insurable properties insured at all
times by financially sound and reputable insurers in such amounts as shall be
customary for similar businesses; maintain such other insurance (including, to
the extent consistent with past practices, self-insurance), of such types, to
such extent and against such risks, as is customary with
66
companies in the same or similar businesses, including general liability
insurance against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any properties owned,
occupied or controlled by it; and maintain such other insurance as may be
required by law or any other Loan Document.
SECTION 5.03. Taxes. Pay and discharge promptly when due all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or in respect of its property, before the same shall become
delinquent or in default, as well as all lawful claims for labor, materials and
supplies or otherwise which, if unpaid, might give rise to a Lien upon such
properties or any part thereof; provided, however, that such payment and
discharge shall not be required with respect to any such tax, assessment,
charge, levy or claim so long as (a) the validity or amount thereof shall be
contested in good faith by appropriate proceedings and Holdings, the Borrower or
the affected Subsidiary, as applicable, shall have set aside on its books
adequate reserves with respect thereto, (b) such tax, assessment, charge, levy
or claim is in respect of property taxes for property that Holdings, the
Borrower or one of the Subsidiaries has determined to abandon and the sole
recourse for such tax, assessment, charge, levy or claim is to such property or
(c) the amount of such taxes, assessments, charges, levies and claims and
interest and penalties thereon does not exceed $500,000 in the aggregate.
SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year, a consolidated
balance sheet and related statements of operations, cash flows and stockholders'
equity showing the financial condition of Holdings, the Borrower and the
Subsidiaries as of the close of such fiscal year and the consolidated results of
their operations during such year, all audited by Deloitte & Touche L.L.P. or
other independent public accountants of recognized national standing reasonably
acceptable to the Administrative Agent and accompanied by an opinion of such
accountants (which shall not be qualified in any material respect, provided that
disclosures by such accountants of changes in accounting principles shall not be
deemed such a qualification) to the effect that such consolidated financial
statements fairly present the financial condition and results of operations of
Holdings, the Borrower and the Subsidiaries on a consolidated basis in
accordance with GAAP, together with a written discussion by management of annual
results compared to prior year results;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, a consolidated balance sheet and related
statements of operations, cash flows and stockholders' equity showing the
financial condition of Holdings, the Borrower and the Subsidiaries as of the
close of such fiscal quarter and the consolidated results of their operations
during such fiscal quarter and the then-elapsed portion of the fiscal year, all
certified by one of its Financial Officers on behalf of the Borrower as fairly
presenting the financial condition and results of operations of Holdings, the
Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP
(except for the absence of footnotes), subject to normal year-end audit
adjustments, together with a written discussion by management of quarterly
results and year-to-date results compared to prior year results;
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(c) concurrently with any delivery of financial statements under (a) or
(b) above, a certificate of the accounting firm or Financial Officer on behalf
of the Borrower opining on or certifying such statements (which certificate,
when furnished by an accounting firm, may be limited to accounting matters and
disclaim responsibility for legal interpretations) (i) certifying that no Event
of Default or Default has occurred or, if such an Event of Default or Default
has occurred, specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto and (ii) setting forth
computations in reasonable detail satisfactory to the Administrative Agent
demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and
6.12 (it being understood that the information required by this clause (ii) may
be provided in a certificate of a Financial Officer on behalf of the Borrower
instead of from such accounting firm);
(d) promptly after the same become publicly available, copies of all
periodic and other publicly available reports, proxy statements and, to the
extent reasonably requested by the Administrative Agent, other materials filed
by Holdings, the Borrower or any Subsidiary with the Securities and Exchange
Commission, or any governmental authority succeeding to any of or all the
functions of said Commission, or with any national securities exchange;
(e) if, as a result of any change in accounting principles and policies
from those as in effect on the date of this Agreement, the consolidated
financial statements of Holdings, the Borrower and the Subsidiaries delivered
pursuant to paragraph (a) or (b) above will differ in any material respect from
the consolidated financial statements that would have been delivered pursuant to
such clauses had no such change in accounting principles and policies been made,
then, together with the first delivery of financial statements pursuant to
paragraph (a) and (b) above following such change, a schedule prepared by a
Financial Officer on behalf of the Borrower reconciling such changes to what the
financial statements would have been without such changes;
(f) within 90 days after the beginning of each fiscal year, a copy of
an operating and capital expenditure budget for such fiscal year;
(g) promptly following the creation or acquisition of any Subsidiary, a
certificate from a Responsible Officer identifying such new Subsidiary and the
ownership interest of the Borrower and the Subsidiaries therein;
(h) promptly following entry into any Service Contract or Permitted
Business Acquisition involving Capital Expenditures in excess of $5,000,000, a
certificate from a Responsible Officer identifying such Service Contract or
Permitted Business Acquisition and confirming that it is a Permitted Service
Contract or Permitted Business Acquisition, as the case may be;
(i) simultaneously with the delivery of any financial statements
pursuant to paragraph (a) or (b) above, a balance sheet and related statements
of operations, cash flows and stockholder's equity for each unconsolidated
Subsidiary for the applicable period;
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(j) promptly, a copy of all reports submitted in connection with any
material interim or special audit made by independent accountants of the books
of Holdings, the Borrower or any Subsidiary; and
(k) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of Holdings, the Borrower
or any Subsidiary, or compliance with the terms of any Loan Document, or such
consolidating financial statements, as in each case the Administrative Agent or
any Lender, acting through the Administrative Agent, may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent and each Lender written notice of the following promptly
after any Responsible Officer of the Borrower obtains actual knowledge thereof:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) proposed to be taken with respect
thereto;
(b) the filing or commencement of, or any written threat or notice of
intention of any person to file or commence, any action, suit or proceeding,
whether at law or in equity or by or before any Governmental Authority, against
Holdings, the Borrower or any Subsidiary thereof in respect of which there is a
reasonable possibility of an adverse determination and which, if adversely
determined, could reasonably be expected to result in a Material Adverse Effect
and a notice of any material adverse development in such action, suit or
proceeding; and
(c) any other development specific to Holdings, the Borrower or any
Subsidiary that is not a matter of general public knowledge and that has
resulted in, or could reasonably be expected to result in, a Material Adverse
Effect.
SECTION 5.06. Employee Benefits. Comply in all material respects with
the applicable provisions of ERISA and the provisions of the Code relating to
ERISA and any applicable similar non-U.S. law, except to the extent that the
failure to comply with this subsection could not reasonably be expected to have
a Material Adverse Effect and (b) furnish to the Administrative Agent (i) as
soon as possible after, and in any event within 30 days after any Responsible
Officer of Holdings, the Borrower or any ERISA Affiliate knows or has reason to
know that, any Reportable Event has occurred, a statement of a Financial Officer
setting forth details as to such Reportable Event and the action proposed to be
taken with respect thereto, together with a copy of the notice, if any, of such
Reportable Event given to the PBGC, (ii) promptly after any Responsible Officer
learns of receipt thereof, a copy of any notice that the Borrower or any ERISA
Affiliate may receive from the PBGC relating to the intention of the PBGC to
terminate any Plan or Plans (other than a Plan maintained by an ERISA Affiliate
that is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Code Section 414) or to appoint a trustee to administer any such Plan, (iii)
within 30 days after the due date for filing with the PBGC pursuant to Section
412(n) of the Code a notice of failure to make a required installment or other
payment with respect to a Plan, a statement of a Financial Officer setting forth
details as to such failure and the action proposed to be taken with respect
thereto, together
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with a copy of any such notice given to the PBGC and (iv) promptly after any
Responsible Officer learns thereof and in any event within 30 days after receipt
thereof by Holdings, the Borrower or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, a copy of each notice received by Holdings, the Borrower or
any ERISA Affiliate concerning (A) the imposition of Withdrawal Liability or (B)
a determination that a Multiemployer Plan is, or is expected to be, terminated
or in reorganization, in each case within the meaning of Title IV of ERISA;
provided that in the case of each of clauses (i) through (iv) above, notice to
the Administrative Agent shall only be required if such event or condition,
together with all other events or conditions referred to in clauses (i) through
(iv) above, could reasonably be expected to result in liability of Holdings, the
Borrower or any Subsidiary in an aggregate amount exceeding $4,000,000.
SECTION 5.07. Maintaining Records; Access; Inspections. Maintain all
financial records in accordance with GAAP and permit any persons designated by
the Administrative Agent or any Lender to visit and inspect the financial
records and the properties of Holdings, the Borrower or any Subsidiary at
reasonable times, upon reasonable prior notice to Holdings or the Borrower, and
as often as reasonably requested and to make extracts from and copies of such
financial records, and permit any persons designated by the Administrative Agent
or any Lender upon reasonable prior notice to Holdings or the Borrower to
discuss the affairs, finances and condition of, Holdings, the Borrower or any
Subsidiary with the officers thereof and independent accountants therefor
(subject to reasonable requirements of confidentiality, including requirements
imposed by law or by contract).
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and
request the issuance of Letters of Credit only for the purposes set forth in the
recitals to this Agreement.
SECTION 5.09. Compliance with Environmental Laws. Comply, and make
reasonable best efforts to cause all lessees and other persons occupying its
currently owned or leased properties to comply, with all Environmental Laws and
Environmental Permits applicable to its operations and Properties, except in the
case of such noncompliance as could not reasonably be expected to result in a
Material Adverse Effect; obtain and renew all material Environmental Permits
necessary for its operations and currently owned or leased properties, and
conduct, to the extent required under Environmental Laws, any material Remedial
Action in accordance with Environmental Laws except, in each of the foregoing,
as could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.10. Preparation of Environmental Reports. If a default caused
by reason of a breach of Section 3.17 or 5.09 shall have occurred and be
continuing, at the request of the Required Lenders through the Administrative
Agent, provide to Lenders within 90 days after such request, at the expense of
the Borrower, an environmental site assessment report for the properties that
are the subject of such default prepared by an environmental consulting firm
reasonably acceptable to the Administrative Agent, indicating the presence or
absence of Hazardous Materials and the estimated cost of any Remedial Action
required under any applicable Environmental Law in connection with such
properties.
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SECTION 5.11. Further Assurances. Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements) that may be required under applicable law, or that the Collateral
Agent may reasonably request, in order to effectuate the transactions
contemplated by the Loan Documents and in order to grant, preserve, protect and
perfect the validity and first priority (subject to Liens permitted by Section
6.02) of the security interests created or intended to be created by the
Security Documents. In addition, from time to time, Holdings, the Borrower and
the Subsidiaries will, at their cost and expense, on or promptly (but in any
event within 10 Business Days) following the date of acquisition by the Borrower
or any Subsidiary of any new Wholly-Owned Subsidiary (subject to the receipt of
required consents from Governmental Authorities), promptly secure the
Obligations by causing the following to occur: (i) promptly upon creating or
acquiring any additional subsidiary, the Capital Stock of such subsidiary
(unless such subsidiary is a subsidiary of a foreign Subsidiary) will be pledged
pursuant to the Pledge Agreement; provided that no more than 65% of the Capital
Stock of any foreign subsidiary shall be required to be pledged pursuant to this
Section 5.11, and (ii) such subsidiary (unless such subsidiary is a foreign
Subsidiary) will become a party to the Security Agreement, the Intellectual
Property Security Agreement, the Pledge Agreement (if such subsidiary owns
Capital Stock of any subsidiary), the Subsidiary Guarantee Agreement and the
Indemnity, Subrogation and Contribution Agreement as contemplated under each
such agreement and will, if such subsidiary owns any material real property
located in the United States, enter into and deliver to the Collateral Agent a
mortgage or deed of trust, as applicable, in respect of such property in such
form as may reasonably be specified by the Collateral Agent. All such security
interests and Liens will be created under the Security Documents and other
instruments and documents in form and substance reasonably satisfactory to the
Collateral Agent, and Holdings, the Borrower and the Subsidiaries shall deliver
or cause to be delivered to the Administrative Agent all such instruments and
documents (including legal opinions and lien searches) as the Required Lenders
shall reasonably request to evidence compliance with this Section 5.11. Holdings
and the Borrower agree to provide, and to cause each Subsidiary to provide, such
evidence as the Collateral Agent shall reasonably request as to the perfection
and priority status of each such security interest and Lien. Notwithstanding the
foregoing, the Borrower and its Subsidiaries shall not be required to grant a
Lien on any property to the extent that the granting of such Lien would violate
any Permitted Service Contract to which the Borrower or a Subsidiary is party
and which was not created in anticipation of this Agreement; provided that any
such prohibition shall apply only to (i) tangible assets located on the property
that is the subject of such Permitted Service Contract and (ii) Permitted
Service Contracts entered into after the Closing Date (excluding renewals of
Permitted Service Contracts in effect on the Closing Date) involving Capital
Expenditures by Borrower or a Subsidiary not in excess of $15,000,000 in the
aggregate.
SECTION 5.12. Fiscal Year; Accounting. In the case of each of Holdings,
the Borrower and the Subsidiaries, cause its respective fiscal year to end on
the Tuesday closest to December 31 of such fiscal year and its respective first,
second and third fiscal quarters to end on the Tuesday closest to March 31, June
30 and September 30, respectively, of such fiscal year.
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SECTION 5.13. Dividends. In the case of the Borrower, permit its
Subsidiaries to pay dividends and cause such dividends to be paid to the extent
required to pay the monetary Obligations, subject to prohibitions imposed by
applicable requirements of law.
SECTION 5.14. Interest Rate Protection Agreements. As promptly as
practicable and in any event within 90 days after the Closing Date, enter into,
and thereafter maintain in effect, one or more Interest Rate Protection
Agreements with any of the Lenders or other financial institutions reasonably
satisfactory to the Administrative Agent, the effect of which shall be to limit
at all times the interest payable in connection with Indebtedness having an
aggregate outstanding principal amount not less than an amount equal to 50% of
the aggregate principal amount of Term Borrowings projected to be outstanding at
such time to a maximum rate and on terms and conditions otherwise reasonably
acceptable, taking into account current market conditions, to the Administrative
Agent, and deliver evidence of the execution and delivery thereof to the
Administrative Agent.
ARTICLE VI.
NEGATIVE COVENANTS
Each of Holdings and the Borrower covenants and agrees with each Lender
that, so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document have been paid
in full and all Letters of Credit have been cancelled or have expired and all
amounts drawn thereunder have been reimbursed in full, unless the Required
Lenders shall otherwise consent in writing, none of Holdings and the Borrower
will, and none of them will cause or permit any of the Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness of the Borrower and its Subsidiaries existing on the
date hereof and set forth in Schedule 6.01, but not any extensions, renewals or
replacements of such Indebtedness except (i) renewals and extensions expressly
provided for in the agreements evidencing any such Indebtedness as the same are
in effect on the date of this Agreement and (ii) refinancings and extensions of
any such Indebtedness if the average life to maturity thereof is greater than or
equal to that of the Indebtedness being refinanced or extended, provided that
such Indebtedness permitted under clause (i) or clause (ii) above shall not be
(A) Indebtedness of an obligor that was not an obligor with respect to the
Indebtedness being extended, renewed or refinanced, (B) in a principal amount
which exceeds the Indebtedness (plus accrued interest and premiums thereon)
being renewed, extended or refinanced or (C) incurred, created or assumed if any
Default or Event of Default has occurred and is continuing or would result
therefrom;
(b) Indebtedness created hereunder and under the other Loan Documents;
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(c) in the case of the Guarantors, the Guarantees under the Guarantee
Agreements;
(d) Indebtedness of the Borrower pursuant to Interest Rate Protection
Agreements entered into in order to fix the effective rate of interest on the
Loans and other Indebtedness (provided that such transactions shall be entered
into for business purposes and not for the purpose of speculation);
(e) Indebtedness of the Borrower and the Subsidiaries owed to
(including obligations in respect of letters of credit for the benefit of) any
person providing worker's compensation, health, disability or other employee
benefits or property, casualty or liability insurance to the Borrower or any
Subsidiary, pursuant to reimbursement or indemnification obligations to such
person and Indebtedness in respect of insurance premiums;
(f) in the case of the Borrower, Indebtedness in respect of Letters of
Credit issued hereunder;
(g) (i) Indebtedness of Holdings, Borrower or any Subsidiary that is a
Guarantor to any Subsidiary, (ii) Indebtedness of any Wholly-Owned Subsidiary
that is a Subsidiary Guarantor to the Borrower or Holdings, (iii) Indebtedness
of any Non-Wholly-Owned Subsidiary to the Borrower and the other Subsidiaries in
an aggregate principal amount, together with all other Non-Wholly-Owned
Subsidiary Expenditures, not to exceed $5,000,000 in any fiscal year or
$10,000,000 in the aggregate at any time (net of any return of principal of (but
not return on) any such amount) and (iv) Indebtedness arising out of Investments
permitted by Section 6.04(a) and (i);
(h) Indebtedness of the Borrower or a Subsidiary that represents the
assumption by the Borrower or such Subsidiary of Indebtedness of a Subsidiary or
existing Indebtedness of an acquired Subsidiary in connection with the permitted
merger of such Subsidiary with or into the assuming person or the permitted
purchase of all or substantially all the assets of such Subsidiary by the
Borrower or a Subsidiary so long as such Indebtedness is not incurred in
contemplation of such merger or purchase and is not in excess of $5,000,000 in
the aggregate and refinancings and renewals thereof as long as (i) the
refinancing or renewal Indebtedness has an average life to maturity greater than
or equal to that of the Indebtedness being refinanced, (ii) the obligor on such
refinancing Indebtedness is the same obligor as on the Indebtedness being
refinanced, (iii) the amount of the refinancing Indebtedness does not exceed the
principal amount of the refinanced Indebtedness (plus unpaid accrued interest
and premium thereon);
(i) Indebtedness of the Borrower in respect of performance bonds, bid
bonds, appeal bonds, completion guaranties, surety bonds and similar obligations
and trade related letters of credit, in each case provided in the ordinary
course of business, including those incurred to secure health, safety and
environmental obligations in the ordinary course of business, and any extension,
renewal or refinancing thereof to the extent not provided to secure the
73
repayment of other Indebtedness and to the extent that the amount of refinancing
Indebtedness is not greater than the amount of Indebtedness being refinanced;
(j) Indebtedness of Borrower or its Subsidiaries arising from the
honoring by a bank or other financial institution of a check, draft or similar
instrument drawn against insufficient funds in the ordinary course of business,
provided that such Indebtedness is extinguished within two Business Days of its
incurrence;
(k) Capital Lease Obligations, mortgage financings and purchase money
Indebtedness in an aggregate principal amount outstanding at any time not in
excess of $2,500,000 incurred by the Borrower or any Subsidiary prior to or
within 270 days after a Capital Expenditure in order to finance such Capital
Expenditure, and extensions, renewals and refinancings thereof if the interest
rate with respect thereto and other terms thereof are no less favorable to the
Borrower or such Subsidiary than the Indebtedness being refinanced and the
average life to maturity thereof is greater than or equal to that of the
Indebtedness being refinanced, provided that such refinancing Indebtedness shall
not be (i) Indebtedness of an obligor that was not an obligor with respect to
the Indebtedness (plus unpaid accrued interest and premiums thereon) being
extended, renewed or refinanced, (ii) in a principal amount that exceeds the
Indebtedness being renewed, extended or refinanced or (iii) incurred, created or
assumed if any Default or Event of Default has occurred and is continuing or
would result therefrom;
(l) Indebtedness of the Borrower or any Subsidiary supported by a
Letter of Credit, in a principal amount not in excess of the stated amount of
such Letter of Credit;
(m) Capital Lease Obligations (i) arising out of leases of automobiles
to be used by employees and directors of the Borrower and the Subsidiaries
entered into in the ordinary course of business or (ii) incurred by the Borrower
or any Subsidiary in respect of any Sale and Lease-Back Transaction that is
permitted under Section 6.14;
(n) other Indebtedness of the Borrower and its Subsidiaries in an
aggregate principal amount at any time outstanding that is not in excess of
$5,000,000;
(o) Indebtedness under the GECC Promissory Note;
(p) Indebtedness arising from agreements of the Borrower or a
Subsidiary providing for reasonable and customary indemnification, adjustment of
purchase price or similar obligations, in each case incurred or assumed in
connection with the disposition of any business, assets or a Subsidiary;
(q) Indebtedness incurred by the Borrower constituting reimbursement
obligations with respect to letters of credit issued in the ordinary course of
business, including, without limitation, letters of credit in respect of
workers' compensation claims or self insurance and other similar statutory
requirements, or other Indebtedness with respect to reimbursement type
obligations regarding workers' compensation in an aggregate principal amount not
to exceed $1,000,000 at any time;
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(r) Indebtedness of Holdings to Borrower, provided that such
Indebtedness shall (i) not exceed $65,000,000 in the aggregate at any time, (ii)
be subordinated to Lenders on terms and conditions satisfactory to
Administrative Agent in its sole discretion and (iii) in the case of such
Indebtedness incurred after the Closing Date, any cash proceeds thereof shall be
immediately contributed by Holdings to Borrower or used to repay or service
existing Indebtedness of Holdings to Borrower;
(s) Indebtedness representing the issuance of a promissory note of up
to $750,000 principal amount pursuant to Section 2.3(f) of the Share Exchange
Agreement; and
(t) all premium (if any), interest (including post-petition interest),
fees, expenses, indemnities, charges and additional or contingent interest on
obligations described in clauses (a) through (s) above.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien
on any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, or sell or transfer any account
receivable or any right in respect thereof, except:
(a) Liens on property or assets of the Borrower and its Subsidiaries
existing on the date hereof and set forth in Schedule 6.02, provided that such
Liens shall secure only those obligations that they secure on the date hereof
(and extensions, renewals and refinancings of such obligations permitted by
Section 6.01(a)) and shall not subsequently apply to any other property or
assets of Holdings, the Borrower or any Subsidiary;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset of the Borrower or any
Subsidiary prior to the acquisition thereof by the Borrower or any Subsidiary,
provided that (i) such Lien is not created in contemplation of or in connection
with such acquisition and (ii) such Lien does not apply to any other property or
asset of the Borrower or any Subsidiary (other than pursuant to then existing
after-acquired property clauses);
(d) any Lien on any property or asset of a Subsidiary securing
Indebtedness permitted by Section 6.01(h), provided that such Lien does not
apply to any other property or assets of Holdings, the Borrower or any
Subsidiary not securing such Indebtedness (or permitted refinancings thereof) at
the date of acquisition of such property or asset (other than after acquired
property subjected to a Lien securing Indebtedness incurred prior to such date
and permitted hereunder which contains a requirement for the pledging of after
acquired property);
(e) Liens for taxes, assessments or other governmental charges or
levies not yet delinquent, or that are for less than $500,000 in the aggregate,
or that are being contested in compliance with Section 5.03 or for property
taxes on property that Holdings, the Borrower or one of the Subsidiaries has
determined to abandon if the sole recourse for such tax, assessment, charge,
levy or claim is to such property;
75
(f) carriers', warehousemen's, mechanic's, materialmen's, repairmen's
or other like Liens arising in the ordinary course of business and securing
obligations that are not due and payable or that are being contested in good
faith by appropriate proceedings and in respect of which, if applicable,
Holdings, the Borrower or the relevant Subsidiary shall have set aside on its
books reserves in accordance with GAAP;
(g) pledges and deposits made in the ordinary course of business in
compliance with the Federal Employers Liability Act or any other workmen's
compensation, unemployment insurance and other social security laws or
regulations and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements in respect of such obligations;
(h) deposits to secure the performance of bids, trade contracts (other
than for Indebtedness), leases (other than Capital Lease Obligations), statutory
obligations, surety and appeal bonds, performance bonds, completion guarantees
and other obligations of a like nature incurred in the ordinary course of
business, including those incurred to secure health, safety and environmental
obligations in the ordinary course of business;
(i) zoning restrictions, easements, trackage rights, leases (other than
Capital Lease Obligations), licenses, special assessments, rights-of-way,
restrictions on use of real property and other similar encumbrances incurred in
the ordinary course of business which, in the aggregate, are not substantial in
amount and do not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of Holdings, the
Borrower or any of the Subsidiaries;
(j) purchase money security interests in real property, improvements
thereto or equipment hereafter acquired (or, in the case of improvements,
constructed) by the Borrower or any Subsidiary (including the interests of
vendors and lessors under conditional sale and title retention agreements),
provided that (i) such security interests secure Indebtedness or Sale and
Lease-Back Transactions permitted by Section 6.01 or 6.14, (ii) such security
interests are incurred, and the Indebtedness secured thereby is created, within
270 days after such acquisition (or construction), (iii) the Indebtedness
secured thereby does not exceed 100% of the cost of such real property,
improvements or equipment at the time of such acquisition (or construction),
(iv) such expenditures are permitted by this Agreement and (v) such security
interests do not apply to any other property or assets of the Borrower or any
Subsidiary (other than to accessions to such real property, improvements or
equipment and provided that individual financings of equipment provided by a
single lender may be cross-collateralized to other financings of equipment
provided solely by such lender);
(k) (i) the sale of accounts receivable in connection with collection
in the ordinary course of business and (ii) Liens securing reimbursement
obligations in respect of trade related letters of credit permitted under
Section 6.01 and covering the goods (or the documents of title in respect of
such goods) financed by such letters of credit;
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(l) Liens arising out of capitalized or operating lease transactions
permitted under Section 6.01 or 6.14, so long as such Liens (i) attach only to
the property sold in such transaction and any accessions thereto and (ii) do not
interfere with the business of Holdings, the Borrower or any Subsidiary in any
material respect;
(m) Liens consisting of interests of lessors under capital leases
permitted by Section 6.01;
(n) Liens securing judgments for the payment of money in an aggregate
amount not in excess of $5,000,000 (except to the extent covered by insurance as
to which the insurer has acknowledged in writing its obligation to cover),
unless such judgments shall remain undischarged for a period of more than 30
consecutive days during which execution shall not be effectively stayed;
(o) any Lien arising by operation of law pursuant to Section 107(1) of
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. ss. 9607(1), or pursuant to analogous state law, for costs or damages
which are not yet due (by virtue of a written demand for payment by a
Governmental Authority) or which are being contested in compliance with the
standard set forth in Section 5.03(a) of such Act, or on property that the
Borrower or a Subsidiary has determined to abandon if the sole recourse for such
costs or damages is to such property, provided that the liability of the
Borrower and the Subsidiaries with respect to the matters giving rise to all
such Liens shall not, in the reasonable estimate of the Borrower (in light of
all attendant circumstances, including the likelihood of contribution by third
parties), exceed $2,000,000;
(p) any leases or subleases to other persons of properties or assets
owned or leased by the Borrower or a Subsidiary;
(q) Liens that are contractual rights of set-off (i) relating to the
establishment of depository relations with banks not given in connection with
the issuance of Indebtedness or (ii) pertaining to pooled deposit and/or sweep
accounts of the Borrower and/or any Subsidiary to permit satisfaction of
overdraft or similar obligations incurred in the ordinary course of business of
the Borrower and its Subsidiaries;
(r) Liens on assets consisting of the Borrower's or a Subsidiary's
obligation to return or resell such assets at the termination of, or to perform
under the terms of, a Service Contract;
(s) other Liens securing up to $2,000,000 of obligations at any time;
(t) the replacement, extension or renewal of any Lien permitted by
clause (c), (d), (j) or (l) above, provided that such replacement, extension or
renewal Lien shall not cover any property other than the property that was
subject to such Lien prior to such replacement,
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extension or renewal; and provided further that the Indebtedness and other
obligations secured by such replacement, extension or renewal Lien are permitted
by this Agreement;
(u) Liens required to be created pursuant to the terms of any
Permitted Service Contract; provided, that such Liens shall (i) apply only to
tangible property located at the property subject to such Permitted Service
Contract and (ii) be limited to $2,000,000 in the aggregate at any time; and
(v) any Lien arising as a result of a transaction permitted under
Section 6.05(i) or 6.13.
SECTION 6.03. Foreign Revenues. Permit revenues of foreign Subsidiaries or
attributable to foreign operations in any fiscal year to be greater than 50% of
the consolidated revenues of the Borrower and the Subsidiaries in such fiscal
year.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or
acquire any capital stock, evidences of indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) investments (i) existing on the date hereof in the capital stock of
the Subsidiaries; (ii) by Holdings in the capital stock of the Borrower; (iii)
by the Borrower or any Subsidiary in any Subsidiary that is a Subsidiary
Guarantor (so long as such Guarantor shall remain a Wholly-Owned Subsidiary
after giving effect to such investment); (iv) by any Subsidiary in any
Subsidiary that is a Guarantor; (v) by any Subsidiary that is not a Guarantor in
any Wholly-Owned Subsidiary that is not a Guarantor (so long as such Subsidiary
shall remain a Wholly-Owned Subsidiary after giving effect to such investment);
and (vi) investments in foreign Subsidiaries, provided that the sum of the
aggregate amount of the consideration (whether cash or property, as valued at
the time each such investment is made) for all investments made pursuant to this
clause (vi) plus the aggregate amount of Capital Expenditures incurred or
projected to be incurred as permitted under clause (d) of the definition of
"Permitted Service Contract" shall not exceed (net of any return of capital of
(but not return on) any such investment) $20,000,000 at any time and (vii) by
the Borrower and its Subsidiaries in Non-Wholly-Owned Subsidiaries in an
aggregate principal amount that, together with all other Non-Wholly-Owned
Subsidiary Expenditures does not exceed $5,000,000 in any fiscal year or
$10,000,000 in the aggregate at any time (in each case net of any return of
capital of (but not return on) any such amount);
(b) Permitted Investments and investments that were Permitted
Investments when made;
(c) investments arising out of the receipt by the Borrower or any
Subsidiary of noncash consideration for the sale of assets permitted under
Section 6.05 provided that such consideration (if the stated amount or value
thereof is in excess of $500,000) is pledged upon receipt pursuant to the Pledge
Agreement to the extent required thereby;
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(d) intercompany loans permitted to be incurred as Indebtedness under
Section 6.01;
(e) (i) loans and advances to employees of Holdings, the Borrower or
the Subsidiaries to be used to pay taxes and (ii) other advances and loans to
employees and (ii) advances to employees of payroll and expenses in the ordinary
course of business; provided, however, that the aggregate amount of such loans
and advances under clause (i) at any time outstanding shall not exceed
$2,000,000
(f) (i) loans by the Borrower to VSI Management Direct LP and/or
Recreational Services, LLC and other former or current members of management not
to exceed $3,000,000 in aggregate principal amount at any time the proceeds of
which will be used to purchase or redeem shares of Capital Stock of Holdings
pursuant to their anti-dilution rights and will immediately be contributed by
Holdings in cash to the Borrower as common equity and (ii) loans by the Borrower
to VSI Management Direct LP and/or Recreational Services, LLC and other former
or current members of management the proceeds of which will be used to purchase
limited partnership interests in VSI Management Direct LP and/or Recreational
Services, LLC and Holdings held by present or former officers or employees of
the Borrower or any of its Subsidiaries in an aggregate amount not in excess of
$3,000,000 (plus the aggregate amount paid by VSI Management Direct LP,
Recreational Services, LLC and other former or current members of management
(using funds other than funds borrowed from the Borrower under clause (i)) after
the Closing Date to Holdings to purchase shares of Capital Stock of Holdings and
contributed by Holdings and contributed to the Borrower as common equity less
the aggregate amount of dividends paid pursuant to Section 6.06(d)) at any time;
(g) (i) accounts receivable arising and trade credit granted in the
ordinary course of business and any securities received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss and (ii)
prepayments and other credits to suppliers made in the ordinary course of
business consistent with the past practices of Holdings, the Borrower and the
Subsidiaries;
(h) Interest Rate Protection Agreements permitted pursuant to Section
6.01(d);
(i) investments, other than investments listed in paragraphs (a)
through (h) of this Section 6.04, existing on the Closing Date and set forth on
Schedule 6.04;
(j) investments resulting from pledges and deposits referred to in
Section 6.02(g) or (h);
(k) investments constituting Permitted Business Acquisitions and
subsequent investments in previously acquired Permitted Business Acquisitions;
provided that, the aggregate amount expended pursuant to a Permitted Business
Acquisition to acquire any person or an interest in any person other than a
Wholly-Owned Subsidiary, together with all other Non Wholly-Owned Subsidiary
Expenditures shall not exceed $5,000,000 in any fiscal year or $10,000,000 in
the aggregate at any time (and in each case net of any return of capital of (but
not
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return on) any such amount); provided further, that any investment made pursuant
to this subparagraph (k) in a Non Wholly-Owned Subsidiary that provides a
guaranty pursuant to the Subsidiary Guaranty Agreement shall not be subject to
the foregoing proviso;
(l) investments constituting the purchase or redemption of minority
shareholders or equity holders of Subsidiaries in an aggregate amount not to
exceed $1,000,000 in the aggregate (exclusive of any Capital Stock of Holdings,
VSI Management Direct LP or Recreational Services, LLC);
(m) investments permitted by Section 6.05;
(n) loans by the Borrower or any of its Wholly-Owned Subsidiaries to
customers made in connection with entering into a Permitted Service Contract;
provided, however, that such loans may not exceed $10,000,000 in any fiscal year
or $20,000,000 in aggregate amount outstanding at any time; and
(o) investments made from time to time with Capital Stock (or the
proceeds thereof) of Holdings.
SECTION 6.05. Mergers; Consolidations; Sales of Assets; Acquisitions.
Merge into or consolidate with any other person, or permit any other person to
merge into or consolidate with it, or sell, transfer, lease or otherwise dispose
of (in one transaction or in a series of transactions) all or any substantial
part of its assets (whether now owned or hereafter acquired), or purchase, lease
or otherwise acquire (in one transaction or a series of transactions) all or any
substantial part of the assets of any other person, except that this Section
6.05 shall not prohibit:
(a) the purchase and sale of inventory in the ordinary course of
business by the Borrower or any Subsidiary or the acquisition of any asset of
any person in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto
no Event of Default or Default shall have occurred and be continuing (i) the
merger of any Subsidiary into the Borrower in a transaction in which the
Borrower is the surviving corporation, (ii) the merger or consolidation of any
Subsidiary into or with any other Subsidiary and, in the case of each clauses
(i) and (ii), no person other than the Borrower or a Subsidiary or minority
shareholders referenced in Section 6.04(l) receives any consideration and (iii)
the merger or consolidation of any joint venture in which the Borrower or a
Subsidiary owns 50% of the Capital Stock so long as the surviving entity is a
Wholly-Owned Subsidiary of the Borrower;
(c) investments permitted by Section 6.04;
(d) (i) subject to Section 6.07, sales, leases or transfers from the
Borrower or any Subsidiary to the Borrower or any domestic Wholly-Owned
Subsidiary and (ii) sales, leases or transfers from the Borrower or any
Subsidiary to any Non-Wholly-Owned Subsidiary provided that the aggregate net
value (after giving effect to any consideration received) of the property to
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be sold, leased or transferred pursuant to this clause (ii) together with all
other Non-Wholly-Owned Subsidiary Expenditures does not exceed $5,000,000 in any
fiscal year or $10,000,000 in the aggregate at any time (net of any return of
capital (but not return on any such amount));
(e) sales, leases or other dispositions of equipment, leasehold
improvements or real property of the Borrower or the Subsidiaries determined by
the Board of Directors or senior management of the Borrower to be no longer
useful or necessary in the operation of the business of the Borrower or the
Subsidiaries, provided that the Net Proceeds thereof shall be applied in
accordance with Section 2.12(c);
(f) sales, leases or other dispositions of property of the Borrower and
the Subsidiaries determined by the Board of Directors or senior management of
the Borrower to be no longer useful or necessary in the operation of the
business of the Borrower and the Subsidiaries, provided that the Net Proceeds
thereof shall be applied in accordance with Section 2.12(c);
(g) sales, leases or other dispositions of property having a net book
value not in excess of $2,000,000 in any fiscal year, provided that the Net
Proceeds thereof are applied in accordance with Section 2.12(c) or are used
within one year of the date of receipt thereof to purchase assets useful in the
business of the Borrower and the Subsidiaries, and provided further that no sale
may be made of the Capital Stock of any Subsidiary except in connection with the
sale of all its outstanding Capital Stock that is held by the Borrower and any
other Subsidiary;
(h) the sale of any Capital Stock of any Non-Wholly-Owned Subsidiary or
joint venture provided that the Net Proceeds thereof are applied in accordance
with Section 2.12(c);
(i) transactions permitted by Section 6.14; and
(j) sales and transfers of property at the termination of a Service
Contract as required by the terms of such Service Contract.
SECTION 6.06. Dividends and Distributions. Declare or pay, directly or
indirectly, any dividend or make any other distribution (by reduction of capital
or otherwise), whether in cash, property, securities or a combination thereof,
with respect to any shares of its Capital Stock (other than dividends and
distributions on the common stock of Holdings payable solely by the issuance of
additional shares of common stock of Holdings) or directly or indirectly redeem,
purchase, retire or otherwise acquire for value (or permit any Subsidiary to
purchase or acquire) any shares of any class of its Capital Stock or set aside
any amount for any such purpose; provided, however, that: (a) any Subsidiary may
declare and pay dividends to, repurchase its Capital Stock from or make other
distributions to the Borrower or to any Wholly-Owned Subsidiary (or, in the case
of Non-Wholly-Owned Subsidiaries, to the Borrower or any Subsidiary and to each
other owner of Capital Stock of such Subsidiary on a pro rata basis (or more
favorable basis from the perspective of the Borrower or such Subsidiary) based
on their relative ownership interests); (b) the Borrower may declare and pay
dividends or make other
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distributions to Holdings, in respect of overhead, tax liabilities and tax
planning programs, legal, accounting and other professional fees and expenses
and any fees and expenses associated with registration statements filed with the
Securities and Exchange Commission and subsequent ongoing public reporting
requirements, in each case to the extent actually incurred by Holdings, in
connection with the business of its ownership of the Capital Stock of the
Borrower and the Subsidiaries, as applicable; provided, that all such dividends
and distributions, other than those made with respect to tax liabilities and tax
planning programs, shall not exceed $500,000 in any fiscal year; (c) the
Borrower may declare and pay dividends to or make other distributions to
Holdings, and Holdings may declare and pay dividends or make other distributions
to Recreational Services, LLC, VSI Management Direct LP, BCP Volume L.P., GECC
and BCP Offshore Volume L.P., in respect of tax liabilities and legal,
accounting and other professional fees and expenses, in each case to the extent
actually incurred by Recreational Services, LLC, VSI Management Direct LP, BCP
Volume L.P., GECC and BCP Offshore Volume L.P., as applicable, solely in
connection with the business of its ownership of the Capital Stock of Holdings ;
(d) the Borrower may declare and pay dividends or make distributions to
Holdings, in order to permit Holdings to purchase or redeem shares of its
Capital Stock held by VSI Management Direct LP or Recreational Services, LLC and
other current or former members of management in an aggregate amount not in
excess of $3,000,000 (plus the aggregate amount paid by VSI Management Direct LP
or Recreational Services, LLC and other current or former members of management
(using funds other than the funds borrowed pursuant to Section 6.04(f)(ii))
after the Closing Date to Holdings to purchase shares of Capital Stock of
Holdings and contributed by Holdings to the Borrower as common equity less the
aggregate amount of outstanding loans pursuant to Section 6.04(f)(ii)); (e) the
Borrower may declare and pay dividends to or make other distributions to and
issue Capital Stock to Holdings, the proceeds of which will be used to purchase
or redeem the Capital Stock of SAC not owned by the Borrower on the Closing
Date; (f) the Borrower or any Subsidiary may purchase or redeem the Capital
Stock of any minority shareholder of a Subsidiary whose purpose is to hold
liquor licenses provided that the aggregate amount of purchases and redemptions
pursuant to this clause shall not exceed $250,000; (g) the Borrower and its
Subsidiaries may transfer to Holdings trademarks and servicemarks and may make
license payments to Holdings in respect of such trademarks and servicemarks;
provided, however, that all such license payments are immediately contributed by
Holdings to Borrower or used to repay or service existing Indebtedness of
Holdings to Borrower; (h) in addition to transactions permitted by clause (f)
above, the Borrower or any Subsidiary may purchase or redeem the Capital Stock
of any equity holder of Capital Stock in any joint venture in which the Borrower
or any Subsidiary owns Capital Stock, provided that the aggregate amount of
purchases and redemptions pursuant to this clause shall not exceed $1,000,000;
provided further that such purchase or redemption results in such joint venture
entity becoming a Wholly-Owned Subsidiary; (i) Borrower and its Subsidiaries may
make distributions pursuant to Section 6.04(l); and (j) Holdings may repurchase
or redeem its shares to the extent required by Section 2.3(f) of the Share
Exchange Agreement.
SECTION 6.07. Transactions with Affiliates. Sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transaction with, any of its Affiliates or any
known direct or indirect holder of 10% or more of any class of capital stock of
Holdings, unless such transaction is (i) otherwise permitted under
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this Agreement and (ii) upon terms no less favorable to Holdings, the Borrower
or such Subsidiary, as the case may be, than it would obtain in a comparable
arm's-length transaction with a person that was not an Affiliate, provided that
the foregoing restriction shall not apply to (A) the payment to the Funds and/or
any Fund Affiliates and/or GECC of the monitoring and management fees referred
to in paragraph (b) below or fees payable on the Closing Date or (B) the
indemnification of directors of Holdings, the Borrower and the Subsidiaries in
accordance with customary practice; provided, however, that none of the
foregoing shall prohibit, to the extent otherwise permitted under this
Agreement, (i) loans or advances to employees of Holdings, the Borrower or any
Subsidiary in accordance with Section 6.04(e), (ii) transactions among Holdings,
the Borrower and Subsidiaries otherwise permitted by this Agreement, (iii) the
payment of fees and indemnities to directors, officers and employees of
Holdings, the Borrower and the Subsidiaries in the ordinary course of business,
(iv) transactions pursuant to permitted agreements in existence on the Closing
Date and set forth on Schedule 6.07 and transactions pursuant to the Share
Exchange Agreement, (v) any employment agreements entered into by the Borrower
or any of the Subsidiaries in the ordinary course of business, (vi) dividends
and repurchases permitted under Section 6.06, (vii) any purchase by Holdings of
Capital Stock of the Borrower, or any contribution by Holdings to the equity
capital of the Borrower, (viii) any of the transactions contemplated by Section
6.04 or (ix) the payment of investment banking fees to The Blackstone Group and
its affiliates and GECC and its affiliates to the extent such fees are no
greater than the investment banking fees that a third party could have obtained
for the same services after negotiation at arm's-length.
(b) Make any payment of or on account of monitoring or management fees
payable to the Funds and/or any Fund Affiliates and/or GECC if a Default or
Event of Default shall have occurred and be continuing or would result
therefrom, provided that the aggregate amount of monitoring and management fees
paid or payable to the Funds, Fund Affiliates and GECC or its Affiliates in any
fiscal year shall not exceed $417,000 for 1998 and for any subsequent year an
amount equal to 105% of the maximum allowable aggregate monitoring and
management fee for the immediately preceding year, provided that in the event
that the maximum amount allowable for such monitoring and management fee is not
paid in any such year (the "Fee Shortfall") the maximum amount allowable for
such monitoring and management fee shall be an amount equal to 105% of the
maximum allowable aggregate monitoring and management fee for the immediately
preceding year plus the Fee Shortfall.
SECTION 6.08. Business of Holdings and its Subsidiaries. (a) In the
case of each of the Borrower and the Subsidiaries, engage at any time in any
business or business activity other than the business currently conducted by it
and business activities reasonably incidental or related thereto and any other
business or business activity acquired as part of a Permitted Business
Acquisition if such other business or business activity constitutes less than
25% of the business acquired in such Permitted Business Acquisition at the time
of acquisition and (b) in the case of Holdings, engage at any time in any
business or business activity other than (i) the ownership of all the
outstanding capital stock of Borrower, together with activities directly related
thereto, (ii) performance of its obligations under the Loan Documents and under
inter company Indebtedness, (iii) actions required by law to maintain its status
as a corporation, (iv) actions incidental to the consummation of the Share
Exchange.
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SECTION 6.09. Material Agreements. (i) Enter into any Service Contract
other than a Permitted Service Contract, (ii) sell, assign, transfer or
otherwise dispose of any right under or interest in any Service Contract (other
than under the Security Documents or to an Affiliate) except in connection with
a transaction permitted by Section 6.04 or 6.05 or (iii) amend or modify any
Service Contract in any way if such Service Contract as amended would not
constitute a Permitted Service Contract if it were entered into on the date of
such amendment or modification.
(b) (i) Directly or indirectly, make any payment, retirement,
repurchase or redemption on account of the principal of or directly or
indirectly prepay or defease any Indebtedness having a principal amount in
excess of $1,000,000 in the aggregate prior to the stated maturity date of such
Indebtedness (other than Indebtedness under the Loan Documents), (ii) make any
payment or prepayment of any such Indebtedness that would violate the terms of
this Agreement or of such Indebtedness, any agreement or document evidencing,
related to or securing the payment or performance of such Indebtedness or any
subordination agreement or provision applicable to such Indebtedness or (iii)
pay in cash any amount in respect of such Indebtedness that may at the
Borrower's option be paid in kind thereunder.
(c) Amend or modify in any manner adverse to the Lenders, or grant any
waiver or release under or terminate in any manner (if such action shall be
adverse to the Lenders), the certificate of incorporation or bylaws in any
material respect of Holdings, the Borrower or any Subsidiary or the Share
Exchange Agreement.
(d) Permit any Subsidiary to enter into any agreement or instrument
that by its terms restricts the payment of dividends or the making of cash
advances by such Subsidiary to the Borrower or any Subsidiary that is a direct
or indirect parent of such Subsidiary other than those set forth in the Loan
Documents and those in effect on the Closing Date and set forth on Schedule 6.09
(or replacements of such agreements on terms no less favorable to the Lenders)
and other than customary restrictions entered into by Non-Wholly-Owned
Subsidiaries (other than SAC for the period of time during which it is a
Non-Wholly-Owned Subsidiary) with respect to revenues and other property
generated by or related to a Service Contract.
SECTION 6.10. Minimum Consolidated Cash Net Worth. Permit Consolidated
Cash Net Worth as of the last day of each fiscal quarter set forth below to be
less than the amount set forth below for such period:
Fiscal Quarter:
Amount:
Fourth fiscal quarter 1998 $ 66,800,000
First fiscal quarter 1999 $ 66,800,000
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Second fiscal quarter 1999 $ 66,800,000
Third fiscal quarter 1999 $ 66,800,000
Fourth fiscal quarter 1999 $ 105,300,000
First fiscal quarter 2000 $ 105,300,000
Second fiscal quarter 2000 $ 105,300,000
Third fiscal quarter 2000 $ 105,300,000
Fourth fiscal quarter 2000 $ 141,800,000
First fiscal quarter 2001 $ 141,800,000
Second fiscal quarter 2001 $ 141,800,000
Third fiscal quarter 2001 $ 141,800,000
Fourth fiscal quarter 2001 $ 181,800,000
First fiscal quarter 2002 $ 181,800,000
Second fiscal quarter 2002 $ 181,800,000
Third fiscal quarter 2002 $ 181,800,000
Fourth fiscal quarter 2002 $ 221,800,000
First fiscal quarter 2003 $ 221,800,000
Second fiscal quarter 2003 $ 221,800,000
Third fiscal quarter 2003 $ 221,800,000
Fourth fiscal quarter 2003 $ 256,800,000
First fiscal quarter 2004 $ 256,800,000
Second fiscal quarter 2004 $ 256,800,000
Third fiscal quarter 2004 $ 256,800,000
Fourth fiscal quarter 2004 $ 291,800,000
First fiscal quarter 2005 $ 291,800,000
Second fiscal quarter 2005 $ 291,800,000
Third fiscal quarter 2005 $ 291,800,000
Fourth fiscal quarter 2005 $ 325,800,000
First fiscal quarter 2006 $ 325,800,000
Second fiscal quarter 2006 $ 325,800,000
Third fiscal quarter 2006 $ 325,800,000
Fourth fiscal quarter 2006 $ 361,800,000
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SECTION 6.11. Interest Coverage Ratio. Permit the ratio (the "Interest
Coverage Ratio") as of the last day of any fiscal quarter set forth below for
the four quarter period ended as of such day of (a) EBITDA plus for each Service
Contract having Pro Forma Contract EBITDA as at such day, such Pro Forma
Contract EBITDA multiplied by a fraction the numerator of which shall be equal
to the number of full fiscal quarters since the quarter during which the first
payment was made by Holdings, the Borrower or any Subsidiary under such Service
Contract funded in whole or in part by the proceeds of Indebtedness included in
Total Debt (which number of full fiscal quarters shall include such quarter if
payment is made on or prior to the 30th day thereof) and the denominator of
which shall be the number four to (b) Cash Interest Expense to be less than the
ratio set forth below for such period; provided that for purposes of calculating
Cash Interest Expense as of the last day of each of the first, second and third
fiscal quarters occurring after the Closing Date, the amount determined pursuant
to clause (b) above shall be determined by multiplying Cash Interest Expense for
the period commencing on the first day of the first full fiscal quarter
following the Closing Date, and ending as of the end of such fiscal period by
(i) 4, in the case of the first fiscal quarter, (ii) 2, in the case of the
second fiscal quarter, and (iii) 4/3, in the case of the third fiscal quarter;
provided that for purposes of making the foregoing calculation for any period
the aggregate amount of Pro Forma Contract EBITDA shall not exceed 20% of the
sum of EBITDA plus Pro Forma Contract EBITDA for such period:
Fiscal Quarter: Amount:
First fiscal quarter 1999 2.25:100
Second fiscal quarter 1999 2.25:100
Third fiscal quarter 1999 2.35:100
Fourth fiscal quarter 1999 2.35:100
First fiscal quarter 2000 2.35:100
Second fiscal quarter 2000 2.35:100
Third fiscal quarter 2000 2.75:100
Fourth fiscal quarter 2000 2.75:100
First fiscal quarter 2001 2.75:100
Second fiscal quarter 2001 3.00:100
Third fiscal quarter 2001 3.00:100
Fourth fiscal quarter 2001 3.00:100
First fiscal quarter 2002 3.00:100
Second fiscal quarter 2002 3.00:100
Third fiscal quarter 2002 3.00:100
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Fourth fiscal quarter 2002 3.00:100
First fiscal quarter 2003 3.00:100
Second fiscal quarter 2003 3.00:100
Third fiscal quarter 2003 3.00:100
Fourth fiscal quarter 2003 3.00:100
First fiscal quarter 2004 3.00:100
Second fiscal quarter 2004 3.00:100
Third fiscal quarter 2004 3.00:100
Fourth fiscal quarter 2004 3.00:100
First fiscal quarter 2005 3.00:100
Second fiscal quarter 2005 3.00:100
Third fiscal quarter 2005 3.00:100
Fourth fiscal quarter 2005 3.00:100
First fiscal quarter 2006 3.00:100
Second fiscal quarter 2006 3.00:100
Third fiscal quarter 2006 3.00:100
Fourth fiscal quarter 2006 3.00:100
SECTION 6.12. Leverage Ratio. Permit the ratio (the "Leverage Ratio")
of (a) Total Debt as of the last day of each fiscal quarter ending on or about
the dates set forth below to (b) (i) EBITDA for the four quarter period ended as
of such day plus (ii) the aggregate amount of Pro Forma Contract EBITDA for all
Service Contracts having Pro Forma Contract EBITDA as of such day to be in
excess of the ratio set forth below for such period; provided that for purposes
of making the foregoing calculation for any period the aggregate amount of Pro
Forma Contract EBITDA shall not exceed 20% of the sum of EBITDA plus Pro Forma
Contract EBITDA for such period:
Fiscal Quarter: Amount:
First fiscal quarter 1999 4.25:100
Second fiscal quarter 1999 4.25:100
Third fiscal quarter 1999 4.00:100
Fourth fiscal quarter 1999 4.00:100
First fiscal quarter 2000 4.00:100
Second fiscal quarter 2000 4.00:100
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Third fiscal quarter 2000 3.75:100
Fourth fiscal quarter 2000 3.75:100
First fiscal quarter 2001 3.75:100
Second fiscal quarter 2001 3.50:100
Third fiscal quarter 2001 3.50:100
Fourth fiscal quarter 2001 3.50:100
First fiscal quarter 2002 3.50:100
Second fiscal quarter 2002 3.25:100
Third fiscal quarter 2002 3.25:100
Fourth fiscal quarter 2002 3.25:100
First fiscal quarter 2003 3.25:100
Second fiscal quarter 2003 3.25:100
Third fiscal quarter 2003 3.25:100
Fourth fiscal quarter 2003 3.25:100
First fiscal quarter 2004 3.25:100
Second fiscal quarter 2004 3.25:100
Third fiscal quarter 2004 3.25:100
Fourth fiscal quarter 2004 3.25:100
First fiscal quarter 2005 3.25:100
Second fiscal quarter 2005 3.25:100
Third fiscal quarter 2005 3.25:100
Fourth fiscal quarter 2005 3.25:100
First fiscal quarter 2006 3.25:100
Second fiscal quarter 2006 3.25:100
Third fiscal quarter 2006 3.25:100
Fourth fiscal quarter 2006 3.25:100
SECTION 6.13 Capital Stock of the Subsidiaries. Sell, transfer, lease
or otherwise dispose of, or make subject to any subscription, option, warrant,
call, right or other agreement or commitment of any nature, the Capital Stock of
any Subsidiary, other than (a) pursuant to the Loan Documents or pursuant to a
transaction permitted pursuant to Section 6.04 or 6.05 and (b) directors'
qualifying shares.
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SECTION 6.14. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred (a "Sale and Lease-Back
Transaction"), other than any Sale and Lease-Back Transaction that involves a
sale by the Borrower or a Subsidiary on terms not less favorable than would
prevail in an arm's-length transaction; provided that, the aggregate amount of
lease payments made pursuant to all such Sale and Lease-Back Transactions shall
not exceed $5,000,000 or the resulting Indebtedness is permitted under Section
6.01.
ARTICLE VII.
EVENTS OF DEFAULT
In case of the happening of any of the following events
("Events of Default"):
(a) any representation or warranty made or deemed made by Holdings, the
Borrower or any Loan Party in any Loan Document, or any representation,
warranty, statement or information contained in any report, certificate,
financial statement or other instrument furnished in connection with or pursuant
to any Loan Document, shall prove to have been false or misleading in any
material respect when so made, deemed made or furnished by Holdings, the
Borrower or any other Loan Party;
(b) default shall be made in the payment of any principal of any Loan
or the reimbursement with respect to any Letter of Credit Disbursement when and
as the same shall become due and payable, whether at the due date thereof or at
a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan or
on any Letter of Credit Disbursement or in the payment of any Fee or any other
amount (other than an amount referred to in (b) above) due under any Loan
Document, when and as the same shall become due and payable, and such default
shall continue unremedied for a period of five Business Days;
(d) default shall be made in the due observance or performance by
Holdings, the Borrower or any Subsidiary of any covenant, condition or agreement
contained in Section 5.01(a) (with respect to the Borrower), 5.05(a) or 5.08 or
in Article VI;
(e) default shall be made in the due observance or performance by
Holdings, the Borrower or any Subsidiary of any covenant, condition or agreement
contained in any Loan Document (other than those specified in (b), (c) or (d)
above) and such default shall continue unremedied for a period of 30 days after
notice thereof from the Administrative Agent or the Required Lenders to the
Borrower;
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(f) Holdings, the Borrower or any Subsidiary shall fail to observe or
perform any term, covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any Indebtedness (other than any Indebtedness
under any Loan Document) having an aggregate principal or notional amount in
excess of $5,000,000, if the effect of any such failure is to cause, or to
permit the holder or holders of such Indebtedness or a trustee on its or their
behalf (with or without the giving of notice, the lapse of time or both) to
cause, such Indebtedness to become due prior to its stated maturity, or
Holdings, the Borrower or any Subsidiary shall fail to pay any principal in
respect of any such Indebtedness at the stated maturity thereof;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of Holdings, the Borrower or any Subsidiary, or of a substantial part
of the property or assets of Holdings, the Borrower or a Subsidiary, under Title
11 of the United States Code, as now constituted or hereafter amended, or any
other Federal, state or foreign bankruptcy, insolvency, receivership or similar
law, (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, the Borrower or any Subsidiary or
for a substantial part of the property or assets of Holdings, the Borrower or a
Subsidiary or (iii) the winding-up or liquidation of Holdings, the Borrower or
any Subsidiary; and such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of the foregoing shall
be entered;
(h) Holdings, the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11 of
the United States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described in
(g) above, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings, the
Borrower or any Subsidiary or for a substantial part of the property or assets
of the Borrower or any Subsidiary, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 (except to the extent covered by insurance as to
which the insurer has acknowledged in writing its obligation to cover) shall be
rendered against Holdings, the Borrower, any Subsidiary or any combination
thereof and the same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed, or any action shall
be legally taken by a judgment creditor to levy upon assets or properties of
Holdings, the Borrower or any Subsidiary to enforce any such judgment;
(j) (i) a Reportable Event or Reportable Events, or a failure to make a
required installment or other payment (within the meaning of Section 412(n)(1)
of the Code),
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shall have occurred with respect to any Plan or Plans, (ii) a trustee shall be
appointed by a United States district court to administer any Plan or Plans,
(iii) the PBGC shall institute proceedings (including giving notice of intent
thereof) to terminate any Plan or Plans, (iv) the Borrower or any ERISA
Affiliate shall have been notified by the sponsor of a Multiemployer Plan that
it has incurred Withdrawal Liability to such Multiemployer Plan and the Borrower
or such ERISA Affiliate does not have reasonable grounds for contesting such
Withdrawal Liability or is not contesting such Withdrawal Liability in a timely
and appropriate manner, (v) the Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or is being terminated, within the meaning of Title IV of
ERISA, (vi) the Borrower or any ERISA Affiliate shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (vii) any other similar event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through (vii)
above, such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to have a Material Adverse
Effect;
(k) (i) any Loan Document shall for any reason be asserted by Holdings,
the Borrower or any Subsidiary not to be a legal, valid and binding obligation
of any party thereto, or (ii) any security interest purported to be created by
any Security Document and to extend to assets that are not immaterial to
Holdings, the Borrower and the Subsidiaries on a consolidated basis shall cease
to be, or shall be asserted by the Borrower or any other Loan Party not to be, a
valid, perfected, first priority (except as otherwise expressly provided in this
Agreement or such Security Document) security interest in the securities, assets
or properties covered thereby, except to the extent that any such loss of
perfection or priority results from the failure of the Collateral Agent to
maintain possession of certificates representing securities pledged under the
Pledge Agreement or to file UCC continuation statements; or
(l) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Borrower, take any or all of the
following actions, at the same or different times: (i) terminate forthwith the
Commitments, (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part and (iii) demand cash collateral pursuant to Section
2.20(k), whereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Loan Document,
shall become forthwith due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding; and in any event with respect to the Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate, the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable and the Administrative Agent shall be
deemed to have made a demand for cash collateral to the full extent permitted
under Section 2.20(k), without
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presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrower, anything contained herein or in any
other Loan Document to the contrary notwithstanding.
ARTICLE VIII.
THE AGENTS
In order to expedite the transactions contemplated by this
Agreement, (i) GSCP is hereby appointed to act as the Syndication Agent, and
(ii) Chase is hereby appointed to act as the Administrative Agent and the
Collateral Agent on behalf of the Lenders and the Fronting Bank (for purposes of
this Article VIII, the Syndication Agent, the Administrative Agent and the
Collateral Agent are referred to collectively as the "Agents"). Each of the
Lenders and each assignee of any such Lender hereby irrevocably authorizes the
Agents to take such actions on behalf of such Lender or assignee or the Fronting
Bank and to exercise such powers as are specifically delegated to the Agents by
the terms and provisions hereof and of the other Loan Documents, together with
such actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Lenders and the Fronting Bank,
without hereby limiting any implied authority, (a) to receive on behalf of the
Lenders and the Fronting Bank all payments of principal of and interest on the
Loans, all payments in respect of Letter of Credit Disbursements and all other
amounts due to the Lenders and the Fronting Bank hereunder, and promptly to
distribute to each Lender or the Fronting Bank its proper share of each payment
so received; (b) to give notice on behalf of each of the Lenders to the Borrower
of any Event of Default specified in this Agreement of which the Administrative
Agent has actual knowledge acquired in connection with its agency hereunder; and
(c) to distribute to each Lender copies of all notices, financial statements and
other materials delivered by the Borrower pursuant to this Agreement as received
by the Administrative Agent. Without limiting the generality of the foregoing,
the Agents are hereby expressly authorized to execute any and all documents
(including releases) with respect to the Collateral and the rights of the
Secured Parties with respect thereto, as contemplated by and in accordance with
the provisions of this Agreement and the Security Documents. In the event that
any party other than the Lenders and the Agents shall participate in all or any
portion of the Collateral pursuant to the Security Documents, all rights and
remedies in respect of such Collateral shall be controlled by the Collateral
Agent. The Syndication Agent, without consent of or notice to any party hereto,
may assign any and all of its rights or obligations hereunder to any of its
Affiliates. As of the Closing Date, all the obligations of the Syndication
Agent, shall terminate. Chase Securities Inc. shall have no obligations under
this Agreement.
None of the Agents nor any of their respective directors,
officers, employees or agents shall be liable as such for any action taken or
omitted by any of them except for its or his own gross negligence or wilful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Borrower or any other Loan Party of any of the terms,
conditions, covenants or agreements contained in any Loan Document. The Agents
shall not be responsible to the Lenders for the due
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execution, genuineness, validity, enforceability or effectiveness of this
Agreement or any other Loan Documents or other instruments or agreements. The
Agents shall in all cases be fully protected in acting, or refraining from
acting, in accordance with written instructions signed by the Required Lenders
and, except as otherwise specifically provided herein, such instructions and any
action or inaction pursuant thereto shall be binding on all the Lenders. Each
Agent shall, in the absence of knowledge to the contrary, be entitled to rely on
any instrument or document believed by it in good faith to be genuine and
correct and to have been signed or sent by the proper person or persons. Neither
the Agents nor any of their respective directors, officers, employees or agents
shall have any responsibility to the Borrower or any other Loan Party on account
of the failure of or delay in performance or breach by any Lender or the
Fronting Bank of any of its obligations hereunder or to any Lender or the
Fronting Bank on account of the failure of or delay in performance or breach by
any other Lender or the Fronting Bank or the Borrower or any other Loan Party of
any of their respective obligations hereunder or under any other Loan Document
or in connection herewith or therewith. Each of the Agents may execute any and
all duties hereunder by or through agents or employees and shall be entitled to
rely upon the advice of legal counsel selected by it with respect to all matters
arising hereunder and shall not be liable for any action taken or suffered in
good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that none of the Agents shall
be under any duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement unless it shall be requested in
writing to do so by the Required Lenders. The Lenders further acknowledge and
agree that so long as an Agent shall make any determination to be made by it
hereunder or under any other Loan Document in good faith, such Agent shall have
no liability in respect of such determination to any person.
Subject to the appointment and acceptance of a successor
Administrative Agent and Collateral Agent as provided below, either
Administrative Agent or Collateral Agent may resign at any time by notifying the
Lenders and the Borrower. Upon any such resignation, the Required Lenders shall
have the right to appoint a successor with the consent of the Borrower (not to
be unreasonably withheld). If no successor shall have been so appointed by the
Required Lenders and approved by the Borrower and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the Lenders with the
consent of the Borrower (not to be unreasonably withheld), appoint a successor
Agent which shall be a bank with an office in New York, New York, having a
combined capital and surplus of at least $500,000,000 or an Affiliate of any
such bank. Upon the acceptance of any appointment as Agent hereunder by a
successor bank, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
such Agent's resignation hereunder, the provisions of this Article and Section
9.05 shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Agent.
With respect to the Loans made by it hereunder, each Agent in
its individual capacity and not as Agent shall have the same rights and powers
as any other Lender and may exercise the same as though it were not an Agent,
and the Agents and their Affiliates may accept
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deposits from, lend money to and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if it were not an
Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in
the amount of its pro rata share (based on its Commitments hereunder (or if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of its applicable outstanding Loans or
participations in Letter of Credit Disbursements, as applicable)) of any
reasonable expenses incurred for the benefit of the Lenders by the Agents,
including counsel fees and compensation of agents and employees paid for
services rendered on behalf of the Lenders, which shall not have been reimbursed
by the Borrower and (b) to indemnify and hold harmless each Agent and any of its
directors, officers, employees or agents, on demand, in the amount of such pro
rata share, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against it in its capacity as Agent or any of them in any way
relating to or arising out of this Agreement or any other Loan Document or any
action taken or omitted by it or any of them under this Agreement or any other
Loan Document, to the extent the same shall not have been reimbursed by the
Borrower, provided that no Lender shall be liable to an Agent for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross negligence or
wilful misconduct of such Agent or any of its directors, officers, employees or
agents.
Each Lender acknowledges that it has, independently and
without reliance upon the Agents or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
As soon as practicable after it becomes aware of an Event of
Default that has occurred and is continuing, the Administrative Agent shall
notify each Lender thereof.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.01 Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, (a) in the
case of Holdings, the Borrower, the Subsidiaries or any Agent, to their
respective addresses set forth on their respective signature pages hereto, and
(b) if to a Lender, to it at its address (or telecopy number) set forth in the
Administrative Questionnaire delivered to the Administrative Agent by such
Lender in connection with the execution of this Agreement or in the Assignment
and Acceptance pursuant to which such
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Lender shall have become a party hereto. All notices and other communications
given to any party hereto in accordance with the provisions of this Agreement
shall be deemed to have been given on the date of receipt if delivered by hand
or overnight courier service or sent by telecopy or on the date five Business
Days after dispatch by certified or registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided in this
Section 9.01 or in accordance with the latest unrevoked direction from such
party given in accordance with this Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by Holdings, the Borrower and the Guarantors
herein, in the other Loan Documents and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement or any
other Loan Document shall be considered to have been relied upon by the Lenders
and the Fronting Bank and shall survive the making by the Lenders of the Loans,
the execution and delivery to the Lenders of the Loan Documents and the issuance
of the Letters of Credit, regardless of any investigation made by the Lenders or
on their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or Letter of Credit
Disbursement or any Fee or any other amount payable under this Agreement or any
other Loan Document is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not been terminated. Without
prejudice to the survival of any other agreements contained herein,
indemnification and reimbursement obligations contained herein (including
pursuant to Sections 2.13, 2.15, 2.19 and 9.05) shall survive the payment in
full of the principal and interest hereunder, the expiration of the Letters of
Credit and the termination of the Commitments or this Agreement.
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by Holdings, the Borrower, the Fronting Bank
and the Agents and when the Administrative Agent shall have received copies
hereof which, when taken together, bear the signatures of each of the other
parties hereto, and thereafter shall be binding upon and inure to the benefit of
Holdings, the Borrower, the Fronting Bank, the Agents and each Lender and their
respective permitted successors and assigns.
SECTION 9.04. Successors and Assigns. Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
permitted successors and assigns of such party; and all covenants, promises and
agreements by or on behalf of Holdings, the Borrower, the Administrative Agent,
the Fronting Bank or the Lenders that are contained in this Agreement shall bind
and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations as a Lender under this Agreement
(including all or a portion of its Commitments, the Loans at the time owing to
it and participations in Letters of Credit held by it (it being understood that
Revolving Credit Commitments, Revolving Loans, Letter of Credit Disbursements
and participations in Letters of Credit may only be assigned in pro rata
amounts)); provided, however, that (i) except in the case of an assignment to
another Lender or an Affiliate of such Lender and with respect to any assignment
by GSCP or Chase made prior to the
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termination of the primary syndication of the Commitments (as determined by the
Syndication Agent and the Administrative Agent), in each case, (A) the Borrower
and the Administrative Agent must each give its prior written consent to such
assignment (which consent shall not in either case be unreasonably withheld or
delayed) and (B) in the case of participations in Letters of Credit, Letter of
Credit Disbursements or Revolving Credit Commitments, the Fronting Bank must
give its prior written consent to such assignment (which consent shall not be
unreasonably withheld or delayed), (ii) except in the case of an assignment to
another Lender or an Affiliate of such Lender, the amount of the Loans or
Commitments of the assigning Lender subject to such assignment (determined as of
the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall be an amount not less than
$2,500,000 and integral multiples of $500,000 in excess thereof or shall be the
entire remaining amount of such Loans or Commitments of such assigning Lender,
(iii) the parties to each such assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500 (or with respect to any assignment by or to GSCP
or between the Lenders or Affiliates thereof, a fee of $500) and (iv) the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire. Upon acceptance and recording pursuant to
paragraph (e) of this Section 9.04, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
Business Days after the execution thereof unless agreed otherwise by the
Administrative Agent, (i) the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement and (ii) the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.13, 2.15, 2.19 and 9.05, as well as to
any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Term Commitments and Revolving Credit Commitment, and the outstanding
balances of its Loans and Letter of Credit Disbursements and its participations
in Letters of Credit, in each case without giving effect to assignments thereof
that have not become effective, are as set forth in such Assignment and
Acceptance; (ii) except as set forth in clause (i) above, 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 the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, any other Loan Document or
any other instrument or document furnished pursuant hereto or thereto, or the
financial condition of the Borrower or any Guarantor or the performance or
observance by the Borrower or any Guarantor of any of its obligations under this
Agreement, any other Loan Document or any other instrument or document furnished
pursuant hereto or thereto; (iii) such assignee represents and warrants that it
is legally authorized to enter into such Assignment and Acceptance; (iv) such
assignee confirms that it has received copies of
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this Agreement and the other Loan Documents, together with copies of the most
recent financial statements delivered pursuant to this Agreement and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Administrative Agent,
the Fronting Bank, 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; (vi) such assignee appoints and authorizes the Administrative Agent
and the Collateral 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 or thereof, together
with such powers as are reasonably incidental thereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all the obligations
which by the terms of this Agreement are required to be performed by it as a
Lender.
(d) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at its address referred to in subsection 9.01 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 amount of the Loans and Letter of Credit
Disbursements (whether or not evidenced by a Note) owing to, each Lender from
time to time. The Administrative Agent shall also record the Letter of Credit
Exposure of each Lender in the Register. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent, the Fronting Bank and the Lenders shall treat each person
whose name is recorded in the Register as the owner of Commitments and the Loans
and Letter of Credit Exposures recorded therein for all purposes of this
Agreement. An assignment of any Loan whether or not evidenced by a Note 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 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, the Fronting Bank, any Lender and their representatives (including
counsel and accountants), at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrower, the Fronting
Bank and the Administrative Agent to such assignment, the Administrative Agent
shall (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Lenders. Notwithstanding anything to the contrary contained herein, no
assignment under Section 9.04(b) of any rights or obligations shall be effective
unless and until the Administrative Agent shall have recorded such assignment in
the Register. The Administrative Agent shall record the name
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of the transferor, the name of the transferee, and the amount of the transfer in
the Register after receipt of all documents required pursuant to this Section
9.04 and such other documents as the Administrative Agent may reasonably
request.
(f) Each Lender may without the consent of the Borrower, the Fronting
Bank or the Administrative Agent sell participations to one or more banks or
other entities in all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitments, the Loans owing to it,
its Letter of Credit Exposure and the participations in Letters of Credit held
by it); provided, however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participating banks or other entities shall be entitled to the benefit
of the cost protection provisions contained in Sections 2.13, 2.15, 2.19 and
9.06 to the same extent as if they were Lenders, provided that no such
participating bank or entity shall be entitled to receive any greater amount
pursuant to such Sections than a Lender would have been entitled to receive in
respect of the amount of the participation sold by such Lender to such
participating bank or entity had no sale occurred, and (iv) the Borrower, the
Administrative Agent, the Fronting Bank 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 such Lender shall retain the
sole right to enforce the obligations of the Borrower or any other Loan Party,
as the case may be, relating to its Loans, Letter of Credit Exposure and
participations in Letters of Credit and Fees and to approve any amendment,
modification or waiver of any provision of this Agreement or any other Loan
Document (other than amendments, modifications or waivers decreasing any Fee
payable hereunder or the amount of principal of or the rate at which interest is
payable on the Loans or Letter of Credit Disbursements, extending any final
maturity date or increasing any Commitment, in each case in respect of an
Obligation in which the relevant participating bank or entity is participating,
or releasing all or substantially all of the Collateral or any Guarantor from
its Guarantee Agreement unless all or substantially all the Capital Stock of
such Guarantor is sold in a transaction permitted by this Agreement or as
provided in Section 9.17). Each Lender will disclose the identity of its
participants to the Borrower and Administrative Agent if requested by the
Borrower or the Administrative Agent.
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower or any Guarantor furnished
to such Lender by or on behalf of the Borrower or any Guarantor, provided that,
prior to any such disclosure, each such assignee or participant or proposed
assignee or participant shall execute an agreement whereby such assignee or
participant shall agree to be bound by Section 9.16.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank and, any Lender which is an
investment fund may pledge all or any portion of its Notes or Loans to its
trustee in support of its obligations to such trustee; provided, (i) no Lender
shall, as between Borrower and such Lender, be relieved of any of its
obligations hereunder as a result of any such assignment and pledge and (ii) in
no event
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shall such Federal Reserve Bank or trustee be considered to be a "Lender" or be
entitled to require the assigning Lender to take or omit to take any action
hereunder. In order to facilitate such an assignment to a Federal Reserve Bank,
the Borrower shall, at the request of the assigning Lender, duly execute and
deliver to the assigning Lender a promissory note or notes evidencing the Loans
made to the Borrower by the assigning Lender hereunder.
(i) In the event that S&P or Moody's shall, after the date that any
Lender becomes a Lender, downgrade the long-term certificate deposit ratings or
long-term senior unsecured debt ratings of such Lender (or the parent company
thereof), and the resulting ratings shall be BBB+ or Baa1 or lower, then the
Fronting Bank shall have the right, but not the obligation, at its own expense,
upon notice to such Lender and the Administrative Agent, to replace (or to
request the Borrower, at the sole expense of the Fronting Bank, to use its
reasonable efforts to replace) such Lender with respect to such Lender's
Revolving Credit Commitment with an assignee (in accordance with and subject to
the restrictions contained in paragraph (b) above), and such Lender hereby
agrees to transfer and assign without recourse (in accordance with and subject
to the restrictions contained in paragraph (b) above) all its interests, rights
and obligations in respect of its Revolving Credit Commitment to such assignee;
provided, however, that (i) no such assignment shall conflict with any law, rule
and regulation or order of any Governmental Authority and (ii) such assignee
shall pay to such Lender in immediately available funds on the date of such
assignment the principal of and interest accrued to the date of payment on the
Loans and Letter of Credit Disbursements of such Lender hereunder and all other
amounts accrued for such Lender's account or owed to it hereunder.
(j) Neither Holdings nor the Borrower shall assign or delegate any of
its rights or duties hereunder and any attempted assignment shall be null and
void.
(k) Except as provided in Section 2.13(d), the Fronting Bank shall not
assign or delegate any of its interests, rights or obligations as a Fronting
Bank under this Agreement without the prior written consent of the Borrower and
the Administrative Agent.
SECTION 9.05. Expenses; Indemnity. The Borrower agrees to pay all
reasonable out-of-pocket expenses incurred by the Agents in connection with the
preparation of this Agreement and the other Loan Documents, or by any Agent in
connection with the syndication of the Commitments or the administration of this
Agreement (including expenses incurred in connection with ongoing Collateral
examination to the extent incurred with the reasonable prior approval of the
Borrower) or in connection with any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions hereby
contemplated shall be consummated) or incurred by the Administrative Agent, the
Collateral Agent or any Lender in connection with the enforcement or protection
of their rights in connection with this Agreement and the other Loan Documents
or in connection with the Loans made or the Letters of Credit issued hereunder,
including the reasonable fees, charges and disbursements of Skadden, Arps,
Slate, Meagher & Flom LLP, counsel for the Agents, and, in connection with any
such enforcement or protection, the reasonable fees, charges and disbursements
of any other counsel (including the reasonable allocated costs of internal
counsel
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if a Lender elects to use internal counsel in lieu of outside counsel) for the
Administrative Agent, the Fronting Bank or any Lender (but no more than one such
counsel for any Lender).
(b) The Borrower agrees to indemnify each Agent, the Fronting Bank,
each Lender and each of their respective directors, trustees, officers,
employees, investment advisors and agents (each such person being called an
"Indemnitee") against, and to hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including reasonable
counsel fees, charges and disbursements, incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of (i) the
execution or delivery of this Agreement or any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto and thereto of their respective obligations thereunder or the
consummation of the Transactions and the other transactions contemplated hereby
and thereby, (ii) the use of the proceeds of the Loans or the use of any Letter
of Credit or (iii) any claim, litigation, investigation or proceeding relating
to any of the foregoing, whether or not any Indemnitee is a party thereto,
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee (treating, for this purpose only, the Administrative Agent, the
Fronting Bank or any Lender that is such Indemnitee and its directors, trustees,
officers and employees as a single Indemnitee). Subject to and without limiting
the generality of the foregoing sentence, the Borrower agrees to indemnify each
Indemnitee against, and hold each Indemnitee harmless from, any Environmental
Claim, and any and all losses, claims, damages, liabilities and related
expenses, including reasonable counsel or consultant fees, charges and
disbursements, incurred by or asserted against any Indemnitee (and arising out
of, or in any way connected with or as a result of, any of the events described
in clause (i), (ii) or (iii) of the preceding sentence) arising out of, in any
way connected with, or as a result of any actual or alleged presence or Release
of Hazardous Materials on any of the Properties, or any Environmental Claim
related in any way to Holdings, the Borrower or any Subsidiary, provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that
such Environmental Claim is, or such losses, claims, damages, liabilities or
related expenses are, determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or wilful
misconduct of such Indemnitee or any of its directors, trustees, officers or
employees. The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Obligations, the invalidity or unenforceability of any
term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of any Agent, the Fronting Bank or any
Lender. All amounts due under this Section 9.05 shall be payable on written
demand therefor.
(c) Unless an Event of Default shall have occurred and be continuing,
the Borrower shall be entitled to assume the defense of any action for which
indemnification is sought hereunder with counsel of its choice at its expense
(in which case the Borrower shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by an Indemnitee except as set forth
below); provided, however, that such counsel shall be reasonably
100
satisfactory to each such Indemnitee. Notwithstanding the Borrower's election to
assume the defense of such action, each Indemnitee shall have the right to
employ separate counsel and to participate in the defense of such action, and
the Borrower shall bear the reasonable fees, costs and expenses of such separate
counsel, if (i) the use of counsel chosen by the Borrower to represent such
Indemnitee would present such counsel with a conflict of interest; (ii) the
actual or potential defendants in, or targets of, any such action include both
the Borrower and such Indemnitee and such Indemnitee shall have reasonably
concluded that there may be legal defenses available to it that are different
from or additional to those available to the Borrower (in which case the
Borrower shall not have the right to assume the defense or such action on behalf
of such Indemnitee); (iii) the Borrower shall not have employed counsel
reasonably satisfactory to such Indemnitee to represent it within a reasonable
time after notice of the institution of such action; or (iv) the Borrower shall
authorize such Indemnitee to employ separate counsel at the Borrower's expense.
The Borrower will not be liable under this Agreement for any amount paid by an
Indemnitee to settle any claims or actions if the settlement is entered into
without the Borrower's consent, which consent may not be withheld or delayed
unless such settlement is unreasonable in light of such claims or actions
against, and defenses available to, such Indemnitee.
(d) Notwithstanding anything to the contrary in this Section 9.05, this
Section 9.05 shall not apply to taxes, it being understood that the Borrower's
only obligations with respect to taxes shall arise under Sections 2.13 and 2.19.
SECTION 9.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and the Fronting Bank is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender or the Fronting Bank to or for the credit or the
account of the Borrower against any of and all the obligations of the Borrower
now or hereafter existing under this Agreement or any other Loan Document held
by such Lender or Fronting Bank, irrespective of whether or not such Lender or
the Fronting Bank shall have made any demand under this Agreement or such other
Loan Document and although such obligations may be unmatured. The rights of each
Lender and Fronting Bank under this Section 9.06 are in addition to other rights
and remedies (including other rights of setoff) which such Lender or the
Fronting Bank may have.
SECTION 9.07. APPLICABLE LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF
COMMERCE, PUBLICATION NO. 500 (THE
101
"UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE
LAWS OF THE STATE OF NEW YORK.
(a) SECTION 9.08. Waivers; Amendment . No failure or delay of any
Agent, the Fronting Bank or any Lender in exercising any right or power
hereunder or under any Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of each Agent, the Fronting Bank and
the Lenders hereunder and under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or any other Loan Document or
consent to any departure by Holdings, the Borrower or any Guarantor therefrom
shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. No notice or
demand on Holdings, the Borrower or any Guarantor in any case shall entitle
the Borrower to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Holdings, the Borrower and the Required Lenders or, in the case
of any other Loan Document, pursuant to an agreement or agreements in writing
entered into by each party thereto and the Collateral Agent and consented to by
the Required Lenders; provided, however, that no such agreement shall (i)
decrease the principal amount of, or extend the final maturity of, or decrease
the rate of interest on, any Loan or any Letter of Credit Disbursement, without
the prior written consent of each Lender directly affected thereby, or extend ,
waive or forgive any other payment (other than a mandatory or optional
prepayment) required hereunder without the consent of each Lender directly
affected thereby, (ii) extend any Installment Date or extend any date on which
payment of interest on any Loan or any Letter of Credit Disbursement is due
without the prior written consent of each Lender directly affected thereby,
(iii) advance any Installment Date without the prior written consent of each
Lender directly affected thereby, (iv) increase or extend the Commitment of any
Lender or decrease the Commitment Fees or L/C Participation Fees or other fees
of any Lender without the prior written consent of such Lender, (v) effect any
waiver, amendment or modification that by its terms adversely affects the rights
in respect of mandatory or optional prepayments or Collateral of Lenders
participating in any Tranche differently from those of Lenders participating in
the other Tranche, without the consent of a majority in interest of the Lenders
participating in the adversely affected Tranche, or change the relative rights
in respect of payments or Collateral of the Lenders participating in different
Tranches without the consent of a majority in interest of Lenders participating
in each affected Tranche, or (vi) amend or modify the provisions of Section
2.09(d), Section 2.11(b) or Section 2.16, the provisions of this Section or the
definition of "Required Lenders" (it being understood that, with the consent of
Required Lenders, additional extensions of credit pursuant hereto may be
included in the determination of "Required Lenders" on substantially the same
basis as the other extensions of credit under this Agreement are included on the
Closing Date), or release all or substantially all the Collateral or release any
Guarantor from its Guarantee Agreement unless all or substantially all the
Capital
102
Stock of such Guarantor is sold in a transaction permitted by this Agreement or
as provided in Section 9.17, without the prior written consent of each Lender
adversely affected thereby; provided further that no such agreement shall amend,
modify or otherwise affect the rights or duties of the any Agent or the Fronting
Bank hereunder without the prior written consent of such Agent or the Fronting
Bank acting as such at the effective date of such agreement, as the case may be.
Each Lender shall be bound by any waiver, amendment or modification authorized
by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08
shall bind any assignee of such Lender.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the applicable interest rate, together with all
fees and charges which are treated as interest under applicable law
(collectively the "Charges"), as provided for herein or in any other document
executed in connection herewith, or otherwise contracted for, charged, received,
taken or reserved by any Lender or Fronting Bank, shall exceed the maximum
lawful rate (the "Maximum Rate") that may be contracted for, charged, taken,
received or reserved by such Lender in accordance with applicable law, the rate
of interest payable hereunder, together with all Charges payable to such Lender
or the Fronting Bank, shall be limited to the Maximum Rate, provided that such
excess amount shall be paid to such Lender or the Fronting Bank on subsequent
payment dates to the extent not exceeding the legal limitation.
SECTION 9.10. Entire Agreement. This Agreement, the other Loan
Documents and the agreements regarding certain Fees referred to herein
constitute the entire contract between the parties relative to the subject
matter hereof. Any previous agreement among or representations from the parties
with respect to the subject matter hereof is superseded by this Agreement and
the other Loan Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any party other than
the parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or
103
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become
effective as provided in Section 9.03.
SECTION 9.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. Each of
Holdings and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any Lender or the Fronting Bank may otherwise have to bring any
action or proceeding relating to this Agreement or the other Loan Documents
against Holdings, the Borrower or any Guarantor or their properties in the
courts of any jurisdiction.
(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.16. Confidentiality. Each of the Lenders, the Fronting Bank
and each Agent agrees that it shall maintain in confidence any information
relating to Holdings, the Borrower and the other Loan Parties furnished to it by
or on behalf of Holdings, the Borrower or
104
the other Loan Parties (other than information that (a) has become generally
available to the public other than as a result of a disclosure by such party,
(b) has been independently developed by such Lender, the Fronting Bank or an
Agent without violating this Section 9.16 or (c) was available to such Lender,
the Fronting Bank or an Agent from a third party having, to such person's
knowledge, no obligations of confidentiality to Holdings, the Borrower or any
other Loan Party) and shall not reveal the same other than (i) to its directors,
trustees, officers, employees and advisors with a need to know (so long as each
such person shall have been instructed to keep the same confidential in
accordance with this Section 9.16) and (ii) as contemplated by Section 9.04(g),
except: (A) to the extent necessary to comply with law or any legal process or
the requirements of any Governmental Authority or of any securities exchange on
which securities of the disclosing party or any Affiliate of the disclosing
party are listed or traded, (B) as part of normal reporting or review procedures
to Governmental Authorities, (C) to its parent companies, Affiliates or auditors
(so long as each such person shall have been instructed to keep the same
confidential in accordance with this Section 9.16) and (D) in order to enforce
its rights under any Loan Document in a legal proceeding.
SECTION 9.17. Release of Liens and Guarantees. In the event that
Holdings, the Borrower or any Subsidiary conveys, sells, leases, assigns,
transfers or otherwise disposes of all or any portion of any of the Capital
Stock, assets or property of Holdings, the Borrower or any of the Subsidiaries
in a transaction not prohibited by Section 6.05 or Section 6.13, the
Administrative Agent and the Collateral Agent shall promptly (and the Lenders
hereby authorize the Administrative Agent and the Collateral Agent to) take such
action and execute any such documents as may be reasonably requested by the
Borrower and at the Borrower's expense to release any Liens created by any Loan
Document in respect of such Capital Stock, assets or property, and, in the case
of a disposition of all or substantially all the Capital Stock or assets of any
Subsidiary Guarantor, terminate such Subsidiary Guarantor's obligations under
the Subsidiary Guarantee Agreement. In addition, the Administrative Agent and
the Collateral Agent agree to take such actions as are reasonably requested by
the Borrower and at the Borrower's expense to terminate the Liens and security
interests created by the Loan Documents when all the Obligations are paid in
full and all Letters of Credit and Commitments are terminated. Any
representation, warranty or covenant contained in any Loan Document relating to
any such Capital Stock, assets, property or Subsidiary shall no longer be deemed
to be made once such Capital Stock, assets or property is conveyed, sold,
leased, assigned, transferred or disposed of.
105
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
VOLUME SERVICES AMERICA
HOLDINGS, INC.
By /s/ John T. Dee
--------------------------------
Name: John T. Dee
Title:
VOLUME SERVICES AMERICA, INC.
By /s/ John T. Dee
--------------------------------
Name: John T. Dee
Title:
Address for Notices:
Volume Services America, Inc.
201 East Broad Street
Spartanburg, SC 29306-0001
Attention: President
Telecopier: (864) 598-8695
with a copy to:
The Blackstone Group
345 Park Avenue, 31st Floor
New York, NY 10154
Attention: Howard A. Lipson
Telecopier: (212) 754-8703
106
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as a Lender and as a Joint Lead
Arranger and the Syndication Agent
By /s/ Goldman Sachs Credit Partners L.P.
------------------------------------------
Authorized Signatory
Revolving Credit Commitment: $9,057,971.02
Tranche A Term Loan Commitment: $4,830,917.87
Tranche B Term Loan Commitment: $3,111,111.11
Address for Notices:
Goldman Sachs Credit Partners L.P.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Elizabeth Fischer
Telecopier: (212) 357-3000
with a copy to:
Goldman Sachs Credit Partners L.P.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: John Makrinos
Telecopier: (212) 357-4597
107
CHASE MANHATTAN BANK
DELAWARE,
as the Fronting Bank
By /s/ Michael P. Handago
-----------------------------
Name: Michael P. Handago
Title: Vice President
Address for Notices:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: Michael Handago
Telecopier: (302) 428-3390
with a copy to:
The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Attention: Kathryn Duncan
Telecopier: (212) 972-0009
108
THE CHASE MANHATTAN BANK,
as a Lender, the Swing Line Lender
and the Administrative Agent
By /s/ Kathryn A. Duncan
-----------------------------
Name: Kathryn A. Duncan
Title: Vice President
Revolving Credit Commitment: $ 9,057,971.02
Tranche A Term Loan Commitment: $ 4,830,917.87
Tranche B Term Loan Commitment: $100,111,111.11
Address for Notices:
The Chase Manhattan Bank Agency Services Corporation
One Chase Manhattan Plaza, 8th Fl.
New York, New York 10081
Attention: Janet Belden
Telecopier: (212)552-5658
with a copy to:
The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Attention: Kathryn Duncan
Telecopier: (212) 972-0009
109
FIRST UNION NATIONAL BANK,
As a Lender
By /s/ Jorge Gonzalez
-------------------------------
Name: Jorge Gonzalez
Title: Senior Vice President
Revolving Credit Commitment: $8,333,333.34
Tranche A Term Loan Commitment: $4,444,444.44
Tranche B Term Loan Commitment: $2,222,222.22
Address for Notices:
First Union National Bank
301 South College Street, DC-5,
Charlotte, N.C. 28288-0737
Attention: David Sharp/Lisa White
Telecopier: (704) 374-3300/2802
110
UNION BANK OF CALIFORNIA, N.A.
By /s/ Michael A. Ross
--------------------------------
Name: Michael A. Ross
Title: Vice President
Revolving Credit Commitment: $9,130,434.78
Tranche A Term Loan Commitment: $4,869,565.22
Tranche B Term Loan Commitment: $1,000,000.00
Address for Notices:
Union Bank of California, N.A.
445 S. Figueroa Street, 15th Floor
Los Angeles, CA 90071
111
BANKBOSTON N.A.
By /s/ C. Andrew Tieulelo
------------------------------
Name: C. Andrew Tieulelo
Title: Vice President
Revolving Credit Commitment: $6,521,739.13
Tranche A Term Loan Commitment: $3,478,260.87
Tranche B Term Loan Commitment: $2,000,000.00
Address for Notices:
BankBoston N.A.
100 Federal Street
Boston, MA 02110
112
BHF-BANK Aktiengesellschaft
By /s/ Hans J. Schultz
----------------------------
Name: Hans J. Schultz
Title: Assistant Vice President
Revolving Loan Commitment: $6,666,666.66
Tranche A Term Loan Commitment: $3,555,555.56
Tranche B Term Loan Commitment: $1,777,777.78
Address for Notices:
BHF-BANK Aktiengesellschaft
590 Madison Avenue, 30th Floor
NY, NY 10022
113
CREDIT LYONNAIS,
NEW YORK BRANCH
By /s/ Attila Koc
--------------------------------
Name: Attila Koc
Title: First Vice President
Revolving Loan Commitment: $6,666,666.66
Tranche A Term Loan Commitment: $3,555,555.56
Tranche B Term Loan Commitment: $1,777,777.78
Address for Notices:
Credit Lyonnais, New York Branch
1301 Avenue of the Americas
New York, New York 10019
Attention: Attila Koc
Leveraged Finance Group
Telecopier: (212) 459-3176
114
THE BANK OF NOVA SCOTIA
By /s/ Robert Ganiylio
------------------------------
Name: Robert Ganiylio
Title: Senior Relationship Manager
Revolving Credit Commitment: $6,521,739.13
Tranche A Term Loan Commitment: $3,478,260.87
Tranche B Term Loan Commitment: $------------
Address for Notices:
The Bank of Nova Scotia
1 Liberty Plaza, 26th Floor
NY NY 10006
Attention: Mr. Robert Gavigilo
115
THE FUJI BANK, LIMITED,
NEW YORK BRANCH
By /s/ Teiji Teramoto
--------------------------------
Name: Teiji Teramoto
Title: Vice President & Manager
Revolving Loan Commitment: $6,521,739.13
Tranche A Term Loan Commitment: $3,478,260.87
Tranche B Term Loan Commitment: $------------
Address for Notices:
The Fuji Bank, Limited, New York Branch
Leveraged Finance Group
Two World Trade Center, 79th Floor
NY, NY 10048
116
NATIONSBANK, N.A.
By /s/ Mark S. Trembly
---------------------------------
Name: Mark S. Trembly
Title: Senior Vice President
Revolving Loan Commitment: $6,521,739.13
Tranche A Term Loan Commitment: $3,478,260.87
Tranche B Term Loan Commitment: $------------
Address for Notices:
NationsBank, N.A.
7 North Laurens Street
4th Floor
Greenville, S.C. 29601
Attention: Mark S. Trembly