Exhibit 10.1
[CONFORMED COPY WITH
EXHIBITS G, H AND I
CONFORMED AS EXECUTED]
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CREDIT AGREEMENT
among
INFORMATION HOLDINGS, INC.,
WARBURG, PINCUS INFORMATION VENTURES, INC.,
INFORMATION VENTURES L.L.C.,
VARIOUS LENDERS
BANK OF AMERICA, N.A.,
as DOCUMENTATION AGENT,
and
BANKERS TRUST COMPANY,
as ADMINISTRATIVE AGENT
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BANC OF AMERICA SECURITIES LLC,
as JOINT-LEAD ARRANGER and CO-BOOK MANAGER
DEUTSCHE BANK SECURITIES INC.,
as JOINT-LEAD ARRANGER and CO-BOOK MANAGER
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Dated as of September 24, 1999
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TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit.................................................1
1.01 The Commitments.........................................................1
1.02 Minimum Amount of Each Borrowing........................................3
1.03 Notice of Borrowing.....................................................3
1.04 Disbursement of Funds...................................................4
1.05 Notes...................................................................4
1.06 Conversions.............................................................5
1.07 Pro Rata Borrowings.....................................................6
1.08 Interest................................................................6
1.09 Interest Periods........................................................7
1.10 Increased Costs, Illegality, etc........................................7
1.11 Compensation...........................................................10
1.12 Change of Lending Office...............................................10
1.13 Replacement of Lenders.................................................10
SECTION 2. Letters of Credit.........................................................11
2.01 Letters of Credit......................................................11
2.02 Maximum Letter of Credit Outstandings; Final Maturities................12
2.03 Letter of Credit Requests; Minimum Stated Amount.......................13
2.04 Letter of Credit Participations........................................13
2.05 Agreement to Repay Letter of Credit Drawings...........................15
2.06 Increased Costs........................................................16
SECTION 3. Commitment Commission; Fees; Reductions of Commitment.....................16
3.01 Fees...................................................................16
3.02 Voluntary Termination of Unutilized Commitments........................17
3.03 Mandatory Reduction of Commitments.....................................18
SECTION 4. Prepayments; Payments; Taxes..............................................19
4.01 Voluntary Prepayments..................................................19
4.02 Mandatory Repayments...................................................20
4.03 Method and Place of Payment............................................21
4.04 Net Payments...........................................................21
SECTION 5. Conditions Precedent to the Effective Date................................23
5.01 Execution of Agreement; Notes..........................................24
5.02 Officer's Certificate..................................................24
(i)
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5.03 Opinions of Counsel....................................................24
5.04 Corporate Documents; Proceedings; etc..................................24
5.05 Plans; Shareholders' Agreements; Management Agreements; Employment
Agreements; Non-Compete Agreements; Collective Bargaining
Agreements; Tax Sharing Agreements; Existing Indebtedness
Agreements..........................................................24
5.06 Existing Indebtedness; Preferred Stock.................................26
5.07 Margin Regulations.....................................................26
5.08 Adverse Change, etc....................................................26
5.09 Litigation.............................................................26
5.10 Pledge Agreement.......................................................27
5.11 Security Agreement.....................................................27
5.12 Subsidiaries Guaranty..................................................27
5.13 Financial Statements; Pro Forma Financial Statements, Projections......27
5.14 Solvency Certificate; Insurance Certificates...........................27
5.15 Fees, etc..............................................................28
SECTION 6. Conditions Precedent to All Credit Events.................................28
6.01 Effective Date.........................................................28
6.02 No Default; Representations and Warranties.............................28
6.03 Notice of Borrowing; Letter of Credit Request..........................28
SECTION 7. Representations, Warranties and Agreements................................29
7.01 Company Status.........................................................29
7.02 Company and Other Power and Authority..................................29
7.03 No Violation...........................................................30
7.04 Approvals..............................................................30
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc.......................................30
7.06 Litigation.............................................................31
7.07 True and Complete Disclosure...........................................31
7.08 Use of Proceeds; Margin Regulations....................................32
7.09 Tax Returns and Payments...............................................32
7.10 Compliance with ERISA..................................................32
7.11 The Security Documents.................................................33
7.12 Properties.............................................................34
7.13 Capitalization.........................................................34
7.14 Subsidiaries...........................................................34
7.15 Compliance with Statutes, etc..........................................35
7.16 Investment Company Act.................................................35
7.17 Public Utility Holding Company Act.....................................35
7.18 Environmental Matters..................................................35
7.19 Labor Relations........................................................36
7.20 Patents, Licenses, Franchises and Formulas.............................36
7.21 Indebtedness...........................................................36
(ii)
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7.22 Special Purpose Corporation............................................37
7.23 Insurance..............................................................37
SECTION 8. Affirmative Covenants.....................................................37
8.01 Information Covenants..................................................37
8.02 Books, Records, Inspections, Audits and Annual Meetings................39
8.03 Maintenance of Property; Insurance.....................................40
8.04 Corporate Franchises...................................................41
8.05 Compliance with Statutes, etc..........................................41
8.06 Compliance with Environmental Laws.....................................41
8.07 ERISA..................................................................42
8.08 End of Fiscal Years; Fiscal Quarters...................................43
8.09 Performance of Obligations.............................................43
8.10 Payment of Taxes.......................................................43
8.11 Additional Security; Further Assurances................................43
8.12 Year 2000 Compliance...................................................44
SECTION 9. Negative Covenants........................................................45
9.01 Liens..................................................................45
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc.................47
9.03 Dividends..............................................................50
9.04 Indebtedness...........................................................51
9.05 Advances, Investments and Loans........................................53
9.06 Transactions with Affiliates...........................................54
9.07 Consolidated Fixed Charge Coverage Ratio...............................55
9.08 Maximum Leverage Ratio.................................................55
9.09 Consolidated Interest Coverage Ratio...................................55
9.10 Modifications of Certificate of Incorporation, By-Laws and
Certain Other Agreements; etc.......................................56
9.11 Limitation on Certain Restrictions on Subsidiaries.....................56
9.12 Limitation on Issuance of Capital Stock................................57
9.13 Business...............................................................57
9.14 Limitation on Creation of Subsidiaries.................................57
SECTION 10. Events of Default........................................................58
10.01 Payments..............................................................58
10.02 Representations, etc..................................................58
10.03 Covenants.............................................................58
10.04 Default Under Other Agreements........................................58
10.05 Bankruptcy, etc.......................................................59
10.06 ERISA.................................................................59
10.07 Security Documents....................................................60
10.08 Guaranties............................................................60
10.09 Judgments.............................................................60
(iii)
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10.10 Change of Control.....................................................60
SECTION 11. Definitions and Accounting Terms.........................................61
11.01 Defined Terms.........................................................61
SECTION 12. The Administrative Agent.................................................79
12.01 Appointment...........................................................79
12.02 Nature of Duties......................................................80
12.03 Lack of Reliance on the Administrative Agent..........................80
12.04 Certain Rights of the Administrative Agent............................81
12.05 Reliance..............................................................81
12.06 Indemnification.......................................................81
12.07 The Administrative Agent in its Individual Capacity...................81
12.08 Holders...............................................................82
12.09 Resignation by the Administrative Agent................................82
SECTION 13. Miscellaneous............................................................82
13.01 Payment of Expenses, etc..............................................82
13.02 Right of Setoff.......................................................83
13.03 Notices...............................................................84
13.04 Benefit of Agreement; Assignments; Participations.....................85
13.05 No Waiver; Remedies Cumulative........................................86
13.06 Payments Pro Rata.....................................................87
13.07 Calculations; Computations; Accounting Terms..........................87
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL................................................88
13.09 Counterparts..........................................................89
13.10 Effectiveness.........................................................89
13.11 Headings Descriptive..................................................89
13.12 Amendment or Waiver; etc..............................................89
13.13 Survival..............................................................91
13.14 Domicile of Loans.....................................................91
13.15 Register..............................................................91
13.16 Confidentiality.......................................................91
13.17 Limitation on Additional Amounts, etc.................................92
SECTION 14. Parent Guaranty..........................................................93
14.01 Guaranty..............................................................93
14.02 Bankruptcy............................................................93
14.03 Nature of Liability...................................................93
14.04 Independent Obligation................................................94
14.05 Authorization.........................................................94
14.06 Reliance..............................................................95
(iv)
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14.07 Subordination.........................................................95
14.08 Waiver................................................................95
14.09 Nature of Liability....................................................97
SCHEDULE I Revolving Loan Commitments
SCHEDULE II Lender Addresses
SCHEDULE III Real Properties
SCHEDULE IV Plans
SCHEDULE V Subsidiaries
SCHEDULE VI Existing Indebtedness
SCHEDULE VII Insurance
SCHEDULE VIII Existing Liens
SCHEDULE IX Existing Investments
SCHEDULE X Certain Tax Matters
SCHEDULE XI Certain Affiliate Transactions
SCHEDULE XII Initial Shareholders
SCHEDULE 5.09 Litigation
SCHEDULE 7.05(c) Liabilities
EXHIBIT A Form of Notice of Borrowing
EXHIBIT B-1 Form of Revolving Note
EXHIBIT B-2 Form of Swingline Note
EXHIBIT C Form of Letter of Credit Request
EXHIBIT D Form of Section 4.04(b)(ii) Certificate
EXHIBIT E Form of Opinion of Willkie Farr & Gallagher,
Special Counsel to the Credit Parties
EXHIBIT F Form of Officers' Certificate
EXHIBIT G Form of Pledge Agreement
EXHIBIT H Form of Security Agreement
EXHIBIT I Form of Subsidiaries Guaranty
EXHIBIT J Form of Solvency Certificate
EXHIBIT K Form of Assignment and Assumption Agreement
EXHIBIT L Form of Intercompany Note
(v)
CREDIT AGREEMENT, dated as of September 24, 1999, among
INFORMATION HOLDINGS, INC., a Delaware corporation ("Holdings"), WARBURG,
PINCUS INFORMATION VENTURES, INC., a Delaware corporation ("WPIV" and
together with Holdings, the "Parent Guarantors"), INFORMATION VENTURES
L.L.C., a Delaware limited liability company (the "Borrower"), the Lenders
party hereto from time to time, BANK OF AMERICA, N.A., as Documentation
Agent, and BANKERS TRUST COMPANY, as Administrative Agent (all capitalized
terms used herein and defined in Section 11 are used herein as therein
defined).
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions set
forth herein, the Lenders are willing to make available to the Borrower the
credit facility provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. AMOUNT AND TERMS OF CREDIT.
1.01 THE COMMITMENTS. (a) Subject to and upon the terms and
conditions set forth herein, each Lender severally agrees to make, at any
time and from time to time on and after the Effective Date and prior to the
Final Maturity Date, a revolving loan or revolving loans (each a "Revolving
Loan" and, collectively, the "Revolving Loans") to the Borrower, which
Revolving Loans (i) shall, at the option of the Borrower, be incurred and
maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans,
PROVIDED that except as otherwise specifically provided in Section 1.10(b),
all Revolving Loans comprising the same Borrowing shall at all times be of
the same Type, (ii) may be repaid and reborrowed in accordance with the
provisions hereof, (iii) shall not exceed for any Lender at any time
outstanding that aggregate principal amount which, when added to the product
of (x) such Lender's RL Percentage and (y) the sum of (I) the aggregate
amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings
which are repaid with the proceeds of, and simultaneously with the incurrence
of, the respective incurrence of Revolving Loans) at such time and (II) the
aggregate principal amount of all Swingline Loans (exclusive of Swingline
Loans which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) then
outstanding, equals the Revolving Loan Commitment of such Lender at such time
and (iv) shall not exceed for all Lenders at any time outstanding that
aggregate principal amount which, when added to the sum of (I) the aggregate
amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings
which are repaid with the proceeds of, and simultaneously with the incurrence
of, the respective incurrence of Revolving Loans) at such time and (II) the
aggregate principal amount of all Swingline Loans (exclusive of Swingline
Loans which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) then
outstanding, equals the Total Revolving Loan Commitment at such time.
(b) Subject to and upon the terms and conditions set forth
herein, the Swingline Lender agrees to make, at any time and from time to
time on and after the Effective
Date and prior to the Swingline Expiry Date, a revolving loan or revolving
loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to
the Borrower, which Swingline Loans (i) shall be made and maintained as Base
Rate Loans, (ii) may be repaid and reborrowed in accordance with the
provisions hereof, (iii) shall not exceed in aggregate principal amount at
any time outstanding, when combined with the aggregate principal amount of
all Revolving Loans then outstanding and the aggregate amount of all Letter
of Credit Outstandings at such time, an amount equal to the Total Revolving
Loan Commitment at such time, and (iv) shall not exceed in aggregate
principal amount at any time outstanding the Maximum Swingline Amount.
Notwithstanding anything to the contrary contained in this Section 1.01(b),
(x) the Swingline Lender shall not be obligated to make any Swingline Loans
at a time when a Lender Default exists unless the Swingline Lender has
entered into arrangements satisfactory to it and the Borrower to eliminate
the Swingline Lender's risk with respect to the Defaulting Lender's or
Lenders' participation in such Swingline Loans, including by cash
collateralizing such Defaulting Lender's or Lenders' RL Percentage of the
outstanding Swingline Loans and (y) the Swingline Lender shall not make any
Swingline Loan after it has received written notice from the Borrower, any
other Credit Party or the Required Lenders stating that a Default or an Event
of Default exists and is continuing until such time as the Swingline Lender
shall have received written notice (I) of rescission of all such notices from
the party or parties originally delivering such notice or (II) of the waiver
of such Default or Event of Default by the requisite Lenders.
(c) On any Business Day, the Swingline Lender may, in its
sole discretion, give notice to the Lenders that the Swingline Lender's
outstanding Swingline Loans shall be funded with one or more Borrowings of
Revolving Loans (PROVIDED that such notice shall be deemed to have been
automatically given upon the occurrence of a Default or an Event of Default
under Section 10.05 or upon the exercise of any of the remedies provided in
the last paragraph of Section 10), in which case one or more Borrowings of
Revolving Loans constituting Base Rate Loans (each such Borrowing, a
"Mandatory Borrowing") shall be made on the immediately succeeding Business
Day by all Lenders PRO RATA based on each Lender's RL Percentage (determined
before giving effect to any termination of the Revolving Loan Commitments
pursuant to the last paragraph of Section 10) and the proceeds thereof shall
be applied directly by the Swingline Lender to repay the Swingline Lender for
such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to
make Revolving Loans upon one Business Day's notice pursuant to each
Mandatory Borrowing in the amount and in the manner specified in the
preceding sentence and on the date specified in writing by the Swingline
Lender notwithstanding (i) the amount of the Mandatory Borrowing may not
comply with the Minimum Borrowing Amount otherwise required hereunder, (ii)
whether any conditions specified in Section 6 are then satisfied, (iii)
whether a Default or an Event of Default then exists, (iv) the date of such
Mandatory Borrowing and (v) the amount of the Total Revolving Loan Commitment
at such time. In the event that any Mandatory Borrowing cannot for any reason
be made on the date otherwise required above (including, without limitation,
as a result of the commencement of a proceeding under the Bankruptcy Code
with respect to the Borrower), then each Lender hereby agrees that it shall
forthwith purchase (as of the date the Mandatory Borrowing would otherwise
have occurred, but adjusted for any payments received from the Borrower on or
after such date and prior to such purchase) from the Swingline Lender such
participations in the outstanding Swingline Loans as shall be necessary to
cause the Lenders to
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share in such Swingline Loans ratably based upon their respective RL
Percentages (determined before giving effect to any termination of the
Revolving Loan Commitments pursuant to the last paragraph of Section 10),
PROVIDED that (x) all interest payable on the Swingline Loans shall be for
the account of the Swingline Lender until the date as of which the respective
participation is required to be purchased and, to the extent attributable to
the purchased participation, shall be payable to the participant from and
after such date and (y) at the time any purchase of participations pursuant
to this sentence is actually made, the purchasing Lender shall be required to
pay the Swingline Lender interest on the principal amount of participation
purchased for each day from and including the day upon which the Mandatory
Borrowing would otherwise have occurred to but excluding the date of payment
for such participation, at the overnight Federal Funds Rate.
1.02 MINIMUM AMOUNT OF EACH BORROWING. The aggregate
principal amount of each Borrowing of Revolving Loans or Swingline Loans
shall not be less than the Minimum Borrowing Amount applicable thereto. More
than one Borrowing may occur on the same date, but at no time shall there be
outstanding more than twelve Borrowings of Eurodollar Loans.
1.03 NOTICE OF BORROWING. (a) Whenever the Borrower desires
to incur (x) Eurodollar Loans hereunder, the Borrower shall give the
Administrative Agent at the Notice Office at least three Business Days' prior
notice of each Eurodollar Loan to be incurred hereunder and (y) Base Rate
Loans hereunder (excluding Swingline Loans and Revolving Loans made pursuant
to a Mandatory Borrowing), the Borrower shall give the Administrative Agent
at the Notice Office at least one Business Day's prior notice of each Base
Rate Loan to be incurred hereunder, PROVIDED that (in each case) any such
notice shall be deemed to have been given on a certain day only if given
before 12:00 Noon (New York time) on such day. Each such notice (each a
"Notice of Borrowing"), except as otherwise expressly provided in Section
1.10, shall be irrevocable and shall be given by the Borrower in writing, or
by telephone promptly confirmed in writing, in the form of Exhibit A,
appropriately completed to specify the aggregate principal amount of the
Revolving Loans to be incurred pursuant to such Borrowing, the date of such
Borrowing (which shall be a Business Day), whether the Revolving Loans being
incurred pursuant to such Borrowing are to be initially maintained as Base
Rate Loans or, to the extent permitted hereunder, Eurodollar Loans and, if
Eurodollar Loans, the initial Interest Period to be applicable thereto. The
Administrative Agent shall promptly give each Lender notice of such proposed
Borrowing, of such Lender's proportionate share thereof and of the other
matters required by the immediately preceding sentence to be specified in the
Notice of Borrowing.
(b) (i) Whenever the Borrower desires to incur Swingline
Loans hereunder, the Borrower shall give the Swingline Lender no later than
1:00 P.M. (New York time) on the date that a Swingline Loan is to be
incurred, written notice or telephonic notice promptly confirmed in writing
of each Swingline Loan to be incurred hereunder. Each such notice shall be
irrevocable and specify in each case (A) the date of Borrowing (which shall
be a Business Day) and (B) the aggregate principal amount of the Swingline
Loans to be incurred pursuant to such Borrowing.
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(ii) Mandatory Borrowings shall be made upon the notice
specified in Section 1.01(c), with the Borrower irrevocably agreeing, by its
incurrence of any Swingline Loan, to the making of the Mandatory Borrowings
as set forth in Section 1.01(c).
(c) Without in any way limiting the obligation of the
Borrower to confirm in writing any telephonic notice of any Borrowing or
prepayment of Loans, the Administrative Agent or the Swingline Lender, as the
case may be, may act without liability upon the basis of telephonic notice of
such Borrowing or prepayment, as the case may be, believed by the
Administrative Agent or the Swingline Lender, as the case may be, in good
faith to be from any Authorized Officer of the Borrower, prior to receipt of
written confirmation. In each such case, the Borrower hereby waives the right
to dispute the Administrative Agent's or Swingline Lender's record of the
terms of such telephonic notice of such Borrowing or prepayment of Loans, as
the case may be, absent manifest error.
1.04 DISBURSEMENT OF FUNDS. No later than 12:00 Noon (New
York time) on the date specified in each Notice of Borrowing (or (x) in the
case of Swingline Loans, no later than 3:00 P.M. (New York time) on the date
specified pursuant to Section 1.03(b)(i) or (y) in the case of Mandatory
Borrowings, no later than 1:00 P.M. (New York time) on the date specified in
Section 1.01(c)), each Lender will make available its PRO RATA portion
(determined in accordance with Section 1.07) of each such Borrowing requested
to be made on such date (or in the case of Swingline Loans, the Swingline
Lender will make available the full amount thereof). All such amounts will be
made available in Dollars and in immediately available funds at the Payment
Office, and, except for Revolving Loans made pursuant to a Mandatory
Borrowing, the Administrative Agent will make available to the Borrower at
the Payment Office the aggregate of the amounts so made available by the
Lenders. Unless the Administrative Agent shall have been notified by any
Lender prior to the date of Borrowing that such Lender does not intend to
make available to the Administrative Agent such Lender's portion of any
Borrowing to be made on such date, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative Agent on
such date of Borrowing and the Administrative Agent may (but shall not be
obligated to), in reliance upon such assumption, make available to the
Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Lender, the Administrative
Agent shall be entitled to recover such corresponding amount on demand from
such Lender. If such Lender does not pay such corresponding amount forthwith
upon the Administrative Agent's demand therefor, the Administrative Agent
shall promptly notify the Borrower and the Borrower shall immediately pay
such corresponding amount to the Administrative Agent. The Administrative
Agent also shall be entitled to recover on demand from such Lender or the
Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower until the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (i) if recovered from such Lender, at the overnight Federal
Funds Rate and (ii) if recovered from the Borrower, the rate of interest
applicable to the respective Borrowing, as determined pursuant to Section
1.08. Nothing in this Section 1.04 shall be deemed to relieve any Lender from
its obligation to make Loans hereunder or to prejudice any rights which the
Borrower may have against any Lender as a result of any failure by such
Lender to make Loans hereunder.
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1.05 NOTES. (a) The Borrower's obligation to pay the
principal of, and interest on, the Loans made by each Lender shall be
evidenced (i) if Revolving Loans, by a promissory note duly executed and
delivered by the Borrower substantially in the form of Exhibit B-1, with
blanks appropriately completed in conformity herewith (each a "Revolving
Note" and, collectively, the "Revolving Notes") and (ii) if Swingline Loans,
by a promissory note duly executed and delivered by the Borrower
substantially in the form Exhibit B-2, with blanks appropriately completed in
conformity herewith (the "Swingline Note").
(b) The Revolving Note issued to each Lender shall (i) be
executed by the Borrower, (ii) be payable to such Lender or its registered
assigns and be dated the Effective Date (or, if issued after the Effective
Date, be dated the date of the issuance thereof), (iii) be in a stated
principal amount equal to the Revolving Loan Commitment of such Lender (or,
if issued after the termination thereof, be in a stated principal amount
equal to the outstanding Revolving Loans of such Lender at such time) and be
payable in the outstanding principal amount of the Revolving Loans evidenced
thereby, (iv) mature on the Final Maturity Date, (v) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the Base
Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi)
be subject to voluntary prepayment as provided in Section 4.01, and mandatory
repayment as provided in Section 4.02, and (vii) be entitled to the benefits
of this Agreement and the other Credit Documents.
(c) The Swingline Note issued to the Swingline Lender shall
(i) be executed by the Borrower, (ii) be payable to the Swingline Lender or
its registered assigns and be dated the Effective Date, (iii) be in a stated
principal amount equal to the Maximum Swingline Amount and be payable in the
outstanding principal amount of the Swingline Loans evidenced thereby from
time to time, (iv) mature on the Swingline Expiry Date, (v) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the Base
Rate Loans evidenced thereby, (vi) be subject to voluntary prepayment as
provided in Section 4.01, and mandatory repayment as provided in Section
4.02, and (vii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(d) Each Lender will note on its internal records the
amount of each Loan made by it and each payment in respect thereof and will
prior to any transfer of any of its Notes endorse on the reverse side thereof
the outstanding principal amount of Loans evidenced thereby. Failure to make
any such notation or any error in such notation shall not affect the
Borrower's obligations in respect of such Loans.
1.06 CONVERSIONS. The Borrower shall have the option to
convert, on any Business Day occurring, all or a portion equal to at least the
Minimum Borrowing Amount of the outstanding principal amount of Revolving Loans
made pursuant to one or more Borrowings of one or more Types of Revolving Loans
into a Borrowing of another Type of Revolving Loan, PROVIDED that, (i) except as
otherwise provided in Section 1.10(b), Eurodollar Loans may be converted into
Base Rate Loans only on the last day of an Interest Period applicable to the
Loans being converted and no such partial conversion of Eurodollar Loans shall
reduce the outstanding principal amount of such Eurodollar Loans made pursuant
to a single Borrowing to less than the Minimum Borrowing Amount applicable
thereto, (ii) Base Rate Loans may only be converted into Eurodollar Loans if no
Event of Default is in existence on the date of the conversion, and if a Default
is in existence, Base Rate Loans may only be converted
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into Eurodollar Loans with a one month Interest Period and (iii) no
conversion pursuant to this Section 1.06 shall result in a greater number of
Borrowings of Eurodollar Loans than is permitted under Section 1.02. Each
such conversion shall be effected by the Borrower by giving the
Administrative Agent at the Notice Office prior to 12:00 Noon (New York time)
at least three Business Days' prior notice (each a "Notice of Conversion")
specifying the Revolving Loans to be so converted, the Borrowing or
Borrowings pursuant to which such Revolving Loans were made and, if to be
converted into Eurodollar Loans, the Interest Period to be initially
applicable thereto. The Administrative Agent shall give each Lender prompt
notice of any such proposed conversion affecting any of its Revolving Loans.
Upon any such conversion the proceeds thereof will be deemed to be applied
directly on the day of such conversion to prepay the outstanding principal
amount of the Revolving Loans being converted. Swingline Loans may not be
converted pursuant to this Section 1.06.
1.07 PRO RATA BORROWINGS. All Borrowings of Revolving Loans
under this Agreement shall be incurred from the Lenders PRO RATA on the basis
of their Revolving Loan Commitments. It is understood that no Lender shall be
responsible for any default by any other Lender of its obligation to make
Revolving Loans hereunder and that each Lender shall be obligated to make the
Revolving Loans provided to be made by it hereunder, regardless of the
failure of any other Lender to make its Revolving Loans hereunder.
1.08 INTEREST. (a) The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan from the date
of Borrowing thereof until the earlier of (i) the maturity thereof (whether
by acceleration or otherwise) and (ii) the conversion of such Base Rate Loan
to a Eurodollar Loan pursuant to Section 1.06, at a rate per annum which
shall be equal to the sum of the Applicable Margin for Base Rate Loans plus
the Base Rate in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan from the date of Borrowing
thereof until the earlier of (i) the maturity thereof (whether by
acceleration or otherwise) and (ii) the conversion of such Eurodollar Loan to
a Base Rate Loan pursuant to Section 1.06, 1.09 or 1.10, as applicable, at a
rate per annum which shall, during each Interest Period applicable thereto,
be equal to the sum of the Applicable Margin for Eurodollar Loans plus the
Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall, in each case, bear interest at a rate per annum equal to the
rate which is 2% in excess of the rate then borne by such Loans. Interest
which accrues under this Section 1.08(c) shall be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on each
Quarterly Payment Date, (ii) in respect of each Eurodollar Loan, on the last
day of each Interest Period applicable thereto and, in the case of an
Interest Period in excess of three months, on each date occurring at three
month intervals after
6
the first day of such Interest Period, and on any repayment or prepayment (on
the amount repaid or prepaid), and (iii) in respect of each Loan, at maturity
(whether by acceleration or otherwise) and, after such maturity, on demand.
(e) Upon each Interest Determination Date, the
Administrative Agent shall determine the Eurodollar Rate for each Interest
Period applicable to Eurodollar Loans and shall promptly notify the Borrower
and the Lenders thereof. Each such determination shall, absent manifest
error, be final and conclusive and binding on all parties hereto.
1.09 INTEREST PERIODS. At the time the Borrower gives any
Notice of Borrowing or Notice of Conversion in respect of the making of, or
conversion into, any Eurodollar Loan (in the case of the initial Interest
Period applicable thereto) or on the third Business Day prior to the
expiration of an Interest Period applicable to such Eurodollar Loan (in the
case of any subsequent Interest Period), the Borrower shall have the right to
elect, by giving the Administrative Agent notice thereof, the interest period
(each an "Interest Period") applicable to such Eurodollar Loan, which
Interest Period shall, at the option of the Borrower be a one, two, three or
six-month period (or, if available to all Lenders, nine or twelve-month
period), PROVIDED that:
(i) all Eurodollar Loans comprising a Borrowing shall at
all times have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan
shall commence on the date of Borrowing of such Eurodollar Loan
(including the date of any conversion thereto from a Base Rate Loan)
and each Interest Period occurring thereafter in respect of such
Eurodollar Loan shall commence on the day on which the next
preceding Interest Period applicable thereto expires;
(iii) if any Interest Period for a Eurodollar Loan begins
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar month;
(iv) if any Interest Period for a Eurodollar Loan would
otherwise expire on a day which is not a Business Day, such Interest
Period shall expire on the next succeeding Business Day; PROVIDED,
HOWEVER, that if any Interest Period for a Eurodollar Loan would
otherwise expire on a day which is not a Business Day but is a day
of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding
Business Day;
(v) no Interest Period may be selected at any time when an
Event of Default is then in existence, and only a one month Interest
Period may be selected at any time when a Default is then in
existence; and
(vi) no Interest Period in respect of any Borrowing of
Eurodollar Loans shall be selected which extends beyond the Final
Maturity Date.
7
If upon the expiration of any Interest Period applicable to
a Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the Borrower shall be deemed to have elected to
convert such Eurodollar Loans into Base Rate Loans effective as of the
expiration date of such current Interest Period.
1.10 INCREASED COSTS, ILLEGALITY, ETC. (a) In the event
that any Lender shall have determined (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto
but, with respect to clause (i) below, may be made only by the Administrative
Agent):
(i) on any Interest Determination Date that, by reason of
any changes arising after the date of this Agreement affecting the
interbank Eurodollar market, adequate and fair means do not exist
for ascertaining the applicable interest rate on the basis provided
for in the definition of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased
costs or reductions in the amounts received or receivable hereunder
with respect to any Eurodollar Loan because of (x) any change since
the date of this Agreement in any applicable law or governmental
rule, regulation, order, guideline or request (whether or not having
the force of law) or in the interpretation or administration thereof
and including the introduction of any new law or governmental rule,
regulation, order, guideline or request, such as, for example, but
not limited to: (A) a change in the basis of taxation of payment to
any Lender of the principal of or interest on the Notes or any other
amounts payable hereunder (except for changes in the rate of tax on,
or determined by reference to, the net income or profits of such
Lender pursuant to the laws of the jurisdiction in which such Lender
is organized or in which such Lender's principal office or
applicable lending office is located or any subdivision thereof or
therein), but, in any event, without duplication of any amounts
payable to such Lender under Section 4.04 (although no such Lender
shall be entitled to any amounts under this Section 1.10(a)(ii) in
respect of any Taxes to the extent that such Lender fails to provide
the forms or certification required to be provided by it under
Section 4.04(b)) or (B) a change in official reserve requirements,
but, in all events, excluding reserves required under Regulation D
to the extent included in the computation of the Eurodollar Rate
and/or (y) other circumstances occurring since the date of this
Agreement affecting such Lender, the interbank Eurodollar market or
the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any law or
governmental rule, regulation or order, (y) impossible by compliance
by any Lender in good faith with any governmental request (whether
or not having force of law) or (z) impracticable as a result of a
contingency occurring after the date of this Agreement which
materially and adversely affects the interbank Eurodollar market;
8
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (by telephone promptly
confirmed in writing) to the Borrower and, except in the case of clause (i)
above, to the Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each of the other Lenders).
Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no
longer be available until such time as the Administrative Agent notifies the
Borrower and the Lenders that the circumstances giving rise to such notice by
the Administrative Agent no longer exist, and any Notice of Borrowing or
Notice of Conversion given by the Borrower with respect to Eurodollar Loans
which have not yet been incurred (including by way of conversion) shall be
deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the
Borrower shall, subject to the provisions of Section 13.17 (to the extent
applicable), pay to such Lender, within 30 days after such Lender's written
request therefor, such additional amounts (in the form of an increased rate
of, or a different method of calculating, interest or otherwise as such
Lender in its reasonable discretion shall determine) as shall be required to
compensate such Lender for such increased costs or reductions in amounts
received or receivable hereunder (a written notice as to the additional
amounts owed to such Lender, showing in reasonable detail the basis for the
calculation thereof, submitted to the Borrower by such Lender shall, absent
manifest error, be final and conclusive and binding on all the parties
hereto) and (z) in the case of clause (iii) above, the Borrower shall take
one of the actions specified in Section 1.10(b) as promptly as possible and,
in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may
(and in the case of a Eurodollar Loan affected by the circumstances described
in Section 1.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is
then being made initially or pursuant to a conversion, cancel such Borrowing
by giving the Administrative Agent telephonic notice (confirmed in writing)
on the same date that the Borrower was notified by the affected Lender or the
Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the
affected Eurodollar Loan is then outstanding, upon at least three Business
Days' written notice to the Administrative Agent, require the affected Lender
to convert such Eurodollar Loan into a Base Rate Loan, PROVIDED that, if more
than one Lender is affected at any time, then all affected Lenders must be
treated the same pursuant to this Section 1.10(b).
(c) If any Lender determines that after the date of this
Agreement the introduction of or any change in any applicable law or
governmental rule, regulation, order, guideline, directive or request
(whether or not having the force of law) concerning capital adequacy, or any
change in interpretation or administration thereof by any governmental
authority, central bank or comparable agency, will have the effect of
increasing the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender based on the existence
of such Lender's Revolving Loan Commitment hereunder or its obligations
hereunder, then the Borrower shall, subject to the provisions of Section
13.17 (to the extent applicable), pay to such Lender, within 30 days after
its written demand therefor, such additional amounts as shall be required to
compensate such Lender or such other corporation for the increased cost to
such Lender or such other corporation or the reduction in the rate of return
to such Lender or such other corporation as a result of such increase of
capital. In determining such additional amounts,
9
each Lender will act reasonably and in good faith and will use averaging and
attribution methods which are reasonable, PROVIDED that such Lender's
determination of compensation owing under this Section 1.10(c) shall, absent
manifest error, be final and conclusive and binding on all the parties
hereto. Each Lender, upon determining that any additional amounts will be
payable pursuant to this Section 1.10(c), will give prompt written notice
thereof to the Borrower, which notice shall show in reasonable detail the
basis for calculation of such additional amounts.
(d) Notwithstanding anything to the contrary contained in
this Section 1.10, unless a Lender gives notice to the Borrower that the
Borrower is obligated to pay any amount under this Section 1.10 within 180
days after the later of (x) the date such Lender incurs the respective
increased costs or reduction in return the rate of return or (y) the date
such Lender has actual knowledge of its incurrence of the respective
increased costs or reduction in the rate of return, then such Lender shall
only be entitled to be compensated for such amount by the Borrower pursuant
to this Section 1.10 to the extent the respective increased costs or
reduction in the rate of return are incurred or suffered on or after the date
which occurs 180 days prior to such Lender giving notice to the Borrower that
the Borrower is obligated to pay the respective amounts pursuant to this
Section 1.10.
1.11 COMPENSATION. The Borrower shall, subject to the
provisions of Section 13.17 (to the extent applicable), compensate each
Lender, upon its written request (which request shall set forth in reasonable
detail the basis for requesting such compensation), for all reasonable
losses, expenses and liabilities (including, without limitation, any loss,
expense or liability incurred by reason of the liquidation or reemployment of
deposits or other funds required by such Lender to fund its Eurodollar Loans
but excluding loss of anticipated profits, including loss of Applicable
Margin) which such Lender may sustain: (i) if for any reason (other than a
default by such Lender or the Administrative Agent) a Borrowing of, or
conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion (whether or not
withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10(a));
(ii) if any repayment (including any repayment made pursuant to Section 4.01,
Section 4.02 or as a result of an acceleration of the Loans pursuant to
Section 10) or conversion of any of its Eurodollar Loans occurs on a date
which is not the last day of an Interest Period with respect thereto; (iii)
if any prepayment of any of its Eurodollar Loans is not made on any date
specified in a notice of prepayment given by the Borrower; or (iv) as a
consequence of (x) any other default by the Borrower to repay its Loans when
required by the terms of this Agreement or any Note held by such Lender or
(y) any election made pursuant to Section 1.10(b).
1.12 CHANGE OF LENDING OFFICE. Each Lender agrees that on
the occurrence of any event giving rise to the operation of Section
1.10(a)(ii) or (iii), Section 1.10(c), Section 2.06 or Section 4.04 with
respect to such Lender, it will, if requested by the Borrower, use reasonable
efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans or Letters of Credit affected
by such event, PROVIDED that such designation is made on such terms that such
Lender and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to
10
the operation of such Section. Nothing in this Section 1.12 shall affect or
postpone any of the obligations of the Borrower or the right of any Lender
provided in Sections 1.10, 2.06 and 4.04.
1.13 REPLACEMENT OF LENDERS. (x) If any Lender becomes a
Defaulting Lender or otherwise defaults in its obligations to make Revolving
Loans, (y) upon the occurrence of an event giving rise to the operation of
Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.06 or Section 4.04
with respect to any Lender which results in such Lender (or such Lender and
other Lenders) charging to the Borrower increased costs in excess of those
being generally charged by the other Lenders or (z) in the case of a refusal
by a Lender to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Lenders as (and to the extent) provided in Section 13.12(b), the
Borrower shall have the right, if no Default or Event of Default then exists
(or, in the case of preceding clause (z), no Default or Event of Default will
exist immediately after giving effect to such replacement), to replace such
Lender (the "Replaced Lender") with one or more other Eligible Transferees,
none of whom shall constitute a Defaulting Lender at the time of such
replacement (collectively, the "Replacement Lender") and each of whom shall
be required to be reasonably acceptable to the Administrative Agent, PROVIDED
that (i) at the time of any replacement pursuant to this Section 1.13, the
Replacement Lender shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 13.04(b) (and with all fees payable pursuant
to said Section 13.04(b) to be paid by the Replacement Lender) pursuant to
which the Replacement Lender shall acquire the entire Revolving Loan
Commitment and outstanding Revolving Loans of, and in each case
participations in Letters of Credit by, the Replaced Lender and, in
connection therewith, shall pay to (x) the Replaced Lender in respect thereof
an amount equal to the sum of (I) an amount equal to the principal of, and
all accrued interest on, all outstanding Revolving Loans of the Replaced
Lender, (II) an amount equal to all Unpaid Drawings that have been funded by
(and not reimbursed to) such Replaced Lender, together with all then unpaid
interest with respect thereto at such time and (III) an amount equal to all
accrued, but theretofore unpaid, Fees owing to the Replaced Lender pursuant
to Section 3.01, (y) the Issuing Lender an amount equal to such Replaced
Lender's RL Percentage of any Unpaid Drawing (which at such time remains an
Unpaid Drawing) to the extent such amount was not theretofore funded by such
Replaced Lender to such Issuing Lender and (z) the Swingline Lender an amount
equal to such Replaced Lender's RL Percentage of any Mandatory Borrowing to
the extent such amount was not theretofore funded by such Replaced Lender to
the Swingline Lender and (ii) all obligations of the Borrower due and owing
to the Replaced Lender at such time (other than those specifically described
in clause (i) above in respect of which the assignment purchase price has
been, or is concurrently being, paid) shall be paid in full to such Replaced
Lender concurrently with such replacement. Upon the execution of the
respective Assignment and Assumption Agreement, the payment of amounts
referred to in clauses (i) and (ii) above and, if so requested by the
Replacement Lender, delivery to the Replacement Lender of the appropriate
Revolving Note executed by the Borrower, the Replacement Lender shall become
a Lender hereunder and the Replaced Lender shall cease to constitute a Lender
hereunder, except with respect to indemnification provisions under this
Agreement (including, without limitation, Sections 1.10, 1.11, 2.06, 4.04,
12.06 and 13.01), which shall survive as to such Replaced Lender.
11
SECTION 2. LETTERS OF CREDIT.
2.01 LETTERS OF CREDIT. (a) Subject to and upon the terms
and conditions set forth herein, the Borrower may request that the Issuing
Lender issue, at any time and from time to time on and after the Effective
Date and prior to the 30th day prior to the Final Maturity Date, (x) for the
account of the Borrower and for the benefit of any holder (or any trustee,
agent or other similar representative for any such holders) of L/C
Supportable Obligations of the Borrower or any of its Subsidiaries, an
irrevocable standby letter of credit, in a form customarily used by the
Issuing Lender or in such other form as has been approved by the Issuing
Lender (each such standby letter of credit, a "Standby Letter of Credit"), in
support of such L/C Supportable Obligations and (y) for the account of the
Borrower, an irrevocable sight commercial letter of credit in a form
customarily used by the Issuing Lender or in such other form as has been
approved by the Issuing Lender (each such commercial letter of credit, a
"Trade Letter of Credit", and each such Trade Letter of Credit and each
Standby Letter of Credit, a "Letter of Credit"), in support of customary
commercial transactions of the Borrower and its Subsidiaries. All Letters of
Credit shall be denominated in Dollars and shall be issued on a sight basis
only.
(b) Subject to and upon the terms and conditions set forth
herein, the Issuing Lender agrees that it will, at any time and from time to
time on and after the Effective Date and prior to the 30th day prior to the
Final Maturity Date, following its receipt of the respective Letter of Credit
Request, issue for the account of the Borrower, one or more Letters of Credit
(x) in the case of Standby Letters of Credit, in support of such L/C
Supportable Obligations of the Borrower or any of its Subsidiaries as are
permitted to remain outstanding without giving rise to a Default or an Event
of Default, hereunder and (y) in the case of Trade Letters of Credit, in
support of customary commercial transactions of the Borrower or any of its
Subsidiaries, PROVIDED that the Issuing Lender shall be under no obligation
to issue any Letter of Credit of the types described above if at the time of
such issuance:
(i) any order, judgment or decree of any governmental
authority or arbitrator shall purport by its terms to enjoin or
restrain the Issuing Lender from issuing such Letter of Credit or
any requirement of law applicable to the Issuing Lender or any
request or directive (whether or not having the force of law) from
any governmental authority with jurisdiction over the Issuing Lender
shall prohibit, or request that the Issuing Lender refrain from, the
issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon the Issuing Lender with respect to
such Letter of Credit any restriction or reserve or capital
requirement (for which the Issuing Lender is not otherwise
compensated under Section 2.06 or otherwise) not in effect on the
date hereof, or any unreimbursed loss, cost or expense which was not
applicable or in effect with respect to the Issuing Lender as of the
date hereof and which the Issuing Lender reasonably and in good
faith deems material to it;
(ii) the Issuing Lender shall have received notice from the
Borrower, any other Credit Party or the Required Lenders prior to
the issuance of such Letter of Credit of the type described in the
second sentence of Section 2.03(b); or
12
(iii) a Lender Default exists, unless the Issuing Lender
has entered into arrangements satisfactory to it and the Borrower to
eliminate the Issuing Lender's risk with respect to the Defaulting
Lender's or Lenders' participations in Letters of Credit, including
cash collateralizing such Defaulting Lender's or Lenders' RL
Percentage of outstanding Swingline Loans.
2.02 MAXIMUM LETTER OF CREDIT OUTSTANDINGS; FINAL
MATURITIES. Notwithstanding anything to the contrary contained in this
Agreement, (i) no Letter of Credit shall be issued the Stated Amount of
which, when added to the Letter of Credit Outstandings (exclusive of Unpaid
Drawings which are repaid on the date of, and prior to the issuance of, the
respective Letter of Credit) at such time would exceed either (x) $10,000,000
or (y) when added to the aggregate principal amount of all Revolving Loans
then outstanding and the aggregate principal amount of all Swingline Loans
then outstanding, an amount equal to the Total Revolving Loan Commitment at
such time and (ii) each Letter of Credit shall by its terms terminate on or
before the earlier of (x) (A) in the case of Standby Letters of Credit, the
date which occurs 12 months after the date of the issuance thereof (although
any such Standby Letter of Credit may be extendable for successive periods of
up to 12 months, but not beyond the third Business Day prior to the Final
Maturity Date, on terms acceptable to the Issuing Lender) and (B) in the case
of Trade Letters of Credit, the date which occurs 180 days after the date of
issuance thereof and (y) three Business Days prior to the Final Maturity Date.
2.03 LETTER OF CREDIT REQUESTS; MINIMUM STATED AMOUNT. (a)
Whenever the Borrower desires that a Letter of Credit be issued for its
account, the Borrower shall give the Administrative Agent and the Issuing
Lender at least five Business Days' (or such shorter period as is acceptable
to the Issuing Lender) written notice thereof (including by way of facsimile
transmission). Each notice shall be in the form of Exhibit C appropriately
completed (each a "Letter of Credit Request").
(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the Borrower that such Letter
of Credit may be issued in accordance with, and will not violate the
requirements of, Section 2.02. Unless the Issuing Lender has received notice
from the Borrower, any other Credit Party or the Required Lenders before it
issues a Letter of Credit that one or more of the conditions specified in
Section 5 or 6 are not then satisfied, or that the issuance of such Letter of
Credit would violate Section 2.02, then the Issuing Lender may, subject to
the terms and conditions of this Agreement, issue the requested Letter of
Credit for the account of the Borrower in accordance with the Issuing
Lender's usual and customary practices. Upon its issuance of or amendment or
modification to any Standby Letter of Credit, the Issuing Lender shall
promptly notify in writing the Borrower and the Administrative Agent of such
issuance, amendment or modification and such notification shall be
accompanied by a copy of the issued Letter of Credit or amendment or
modification. Promptly after receipt of such notice, the Administrative Agent
shall notify the Lenders accordingly. In the event a Lender so requests, the
Administrative Agent shall provide such Lender with a copy of any issued
Letter of Credit or amendment or modification.
13
(c) The initial Stated Amount of each Letter of Credit
shall not be less than $100,000 or such lesser amount as is reasonably
acceptable to the Issuing Lender.
2.04 LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon
the issuance by the Issuing Lender of any Letter of Credit, the Issuing
Lender shall be deemed to have sold and transferred to each Lender, other
than the Issuing Lender (each such Lender, in its capacity under this Section
2.04, a "Participant"), and each such Participant shall be deemed irrevocably
and unconditionally to have purchased and received from the Issuing Lender,
without recourse or warranty, an undivided interest and participation, to the
extent of such Participant's RL Percentage, in such Letter of Credit, each
drawing or payment made thereunder and the obligations of the Borrower under
this Agreement with respect thereto, and any security therefor or guaranty
pertaining thereto. Upon any change in the Revolving Loan Commitments or RL
Percentages of the Lenders pursuant to Section 1.13 or 13.04, it is hereby
agreed that, with respect to all outstanding Letters of Credit and Unpaid
Drawings, there shall be an automatic adjustment to the participations
pursuant to this Section 2.04 to reflect the new RL Percentages of the
assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of
Credit, the Issuing Lender shall not have an obligation relative to the other
Lenders other than to confirm that any documents required to be delivered
under such Letter of Credit appear to have been delivered and that they
appear to substantially comply on their face with the requirements of such
Letter of Credit. Any action taken or omitted to be taken by the Issuing
Lender under or in connection with any Letter of Credit if taken or omitted
in the absence of gross negligence or willful misconduct (as finally
determined by a court of competent jurisdiction), shall not create for the
Issuing Lender any resulting liability to the Borrower, any other Credit
Party, any Lender or any other Person.
(c) In the event that the Issuing Lender makes any payment
under any Letter of Credit and the Borrower shall not have reimbursed such
amount in full to the Issuing Lender pursuant to Section 2.05(a), the Issuing
Lender shall promptly notify the Administrative Agent, which shall promptly
notify each Participant of such failure, and each Participant shall promptly
and unconditionally pay to the Issuing Lender the amount of such
Participant's RL Percentage of such unreimbursed payment in Dollars and in
same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M.
(New York time) on any Business Day, any Participant required to fund a
payment under a Letter of Credit, such Participant shall make available to
the Issuing Lender in Dollars such Participant's RL Percentage of the amount
of such payment on such Business Day in same day funds. If and to the extent
such Participant shall not have so made its RL Percentage of the amount of
such payment available to the Issuing Lender, such Participant agrees to pay
to the Issuing Lender, forthwith on demand such amount, together with
interest thereon, for each day from such date until the date such amount is
paid to the Issuing Lender at the overnight Federal Funds Rate for the first
three days and at the interest rate applicable to Revolving Loans maintained
as Base Rate Loans for each day thereafter. The failure of any Participant to
make available to the Issuing Lender its RL Percentage of any payment under
any Letter of Credit shall not relieve any other Participant of its
obligation hereunder to make available to the Issuing Lender its RL
Percentage of any Letter of Credit on the date required, as
14
specified above, but no Participant shall be responsible for the failure of
any other Participant to make available to the Issuing Lender such other
Participant's RL Percentage of any such payment.
(d) Whenever the Issuing Lender receives a payment of a
reimbursement obligation as to which it has received any payments from the
Participants pursuant to clause (c) above, the Issuing Lender shall pay to
each Participant which has paid its RL Percentage thereof, in Dollars and in
same day funds, an amount equal to such Participant's share (based upon the
proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of
the respective participations.
(e) Upon the request of any Participant, the Issuing Lender
shall furnish to such Participant copies of any Letter of Credit issued by it
and such other documentation as may reasonably be requested by such
Participant.
(f) The obligations of the Participants to make payments to
the Issuing Lender with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower or any of its Subsidiaries may have at any
time against a beneficiary named in a Letter of Credit, any
transferee of any Letter of Credit (or any Person for whom any such
transferee may be acting), the Administrative Agent, any
Participant, or any other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying
transaction between the Borrower or any Subsidiary of the Borrower
and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The
Borrower agrees to reimburse the Issuing Lender, by making payment to the
Administrative Agent in immediately available funds at the Payment Office,
for any payment or disbursement made by the Issuing
15
Lender under any Letter of Credit (each such amount, so paid until
reimbursed, an "Unpaid Drawing"), not later than one Business Day following
receipt by the Borrower of notice of such payment or disbursement (provided
that no such notice shall be required to be given if a Default or an Event of
Default under Section 10.05 shall have occurred and be continuing, in which
case the Unpaid Drawing shall be due and payable immediately without
presentment, demand, protest or notice of any kind (all of which are hereby
waived by the Borrower)), with interest on the amount so paid or disbursed by
the Issuing Lender, to the extent not reimbursed prior to 1:00 P.M. (New York
time) on the date of such payment or disbursement, from and including the
date paid or disbursed to but excluding the date the Issuing Lender was
reimbursed by the Borrower therefor at a rate per annum which shall be the
Base Rate in effect from time to time plus the Applicable Margin for Base
Rate Loans; PROVIDED, HOWEVER, to the extent such amounts are not reimbursed
prior to 1:00 P.M. (New York time) on the third Business Day following the
receipt by the Borrower of notice of such payment or disbursement or
following the occurrence of a Default or an Event of Default under Section
10.05, interest shall thereafter accrue on the amounts so paid or disbursed
by the Issuing Lender (and until reimbursed by the Borrower) at a rate per
annum which shall be the Base Rate in effect from time to time plus the
Applicable Margin for Base Rate Loans plus 2%, in each such case, with
interest to be payable on demand. The Issuing Lender shall give the Borrower
prompt written notice of each Drawing under any Letter of Credit, PROVIDED
that the failure to give any such notice shall in no way affect, impair or
diminish the Borrower's obligations hereunder.
(b) The obligations of the Borrower under this Section
2.05 to reimburse the Issuing Lender with respect to Unpaid Drawings
(including, in each case, interest thereon) shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Borrower may have or have had
against any Lender (including in its capacity as issuer of the Letter of
Credit or as Participant), including, without limitation, any defense based
upon the failure of any drawing under a Letter of Credit (each a "Drawing")
to conform to the terms of the Letter of Credit or any nonapplication or
misapplication by the beneficiary of the proceeds of such Drawing; PROVIDED,
HOWEVER, that the Borrower shall not be obligated to reimburse the Issuing
Lender for any wrongful payment made by the Issuing Lender under a Letter of
Credit as a result of acts or omissions constituting willful misconduct or
gross negligence on the part of the Issuing Lender (as finally determined by
a court of competent jurisdiction).
2.06 INCREASED COSTS. If at any time after the date of this
Agreement, the introduction of or any change in any applicable law, rule,
regulation, order, guideline or request or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by the Issuing Lender
or any Participant with any request or directive by any such authority
(whether or not having the force of law), shall either (i) impose, modify or
make applicable any reserve, deposit, capital adequacy or similar requirement
against letters of credit issued by the Issuing Lender or participated in by
any Participant, or (ii) impose on the Issuing Lender or any Participant any
other conditions relating, directly or indirectly, to this Agreement; and the
result of any of the foregoing is to increase the cost to the Issuing Lender
or any Participant of issuing, maintaining or participating in any Letter of
Credit, or reduce the amount of any sum received or receivable by the Issuing
Lender or any
16
Participant hereunder or reduce the rate of return on its capital with
respect to Letters of Credit (except for changes in the rate of tax on, or
determined by reference to, the net income or profits of the Issuing Lender
or such Participant pursuant to the laws of the jurisdiction in which it is
organized or in which its principal office or applicable lending office is
located or any subdivision thereof or therein), then, within 30 days after
the delivery of the certificate referred to below to the Borrower by the
Issuing Lender or any Participant (a copy of which certificate shall be sent
by the Issuing Lender or such Participant to the Administrative Agent), the
Borrower shall, subject to the provisions of Section 13.17 (to the extent
applicable), pay to the Issuing Lender or such Participant such additional
amount or amounts as will compensate such Lender for such increased cost or
reduction in the amount receivable or reduction on the rate of return on its
capital. The Issuing Lender or any Participant, upon determining that any
additional amounts will be payable pursuant to this Section 2.06, will give
prompt written notice thereof to the Borrower, which notice shall include a
certificate submitted to the Borrower by the Issuing Lender or such
Participant (a copy of which certificate shall be sent by the Issuing Lender
or such Participant to the Administrative Agent), setting forth in reasonable
detail the basis for the calculation of such additional amount or amounts
necessary to compensate the Issuing Lender or such Participant. The
certificate required to be delivered pursuant to this Section 2.06 shall,
absent manifest error, be final and conclusive and binding on the Borrower.
SECTION 3. COMMITMENT COMMISSION; FEES; REDUCTIONS OF
COMMITMENT.
3.01 FEES. (a) The Borrower agrees to pay to the
Administrative Agent for distribution to each Non-Defaulting Lender, a
commitment commission (the "Commitment Commission") for the period from and
including the Effective Date to but excluding the Final Maturity Date (or
such earlier date on which the Total Revolving Loan Commitment shall have
been terminated), computed at a rate for each day equal to the Applicable
Margin for Commitment Commission on the daily average Unutilized Revolving
Loan Commitment of such Non-Defaulting Lender. Accrued Commitment Commission
shall be due and payable quarterly in arrears on each Quarterly Payment Date
and on the Final Maturity Date (or such earlier date on which the Total
Revolving Loan Commitment shall have been terminated).
(b) The Borrower agrees to pay to the Administrative Agent
for distribution to each Non-Defaulting Lender (based on each such Lender's
respective RL Percentage) a fee in respect of each Letter of Credit issued
hereunder (the "Letter of Credit Fee") for the period from and including the
date of issuance of such Letter of Credit to and including the date of
termination or expiration of such Letter of Credit, computed at a rate per
annum equal to the Applicable Margin for Eurodollar Loans then in effect on
the daily Stated Amount of such Letter of Credit. Accrued Letter of Credit
Fees shall be due and payable quarterly in arrears on each Quarterly Payment
Date and on the first day after the termination of the Total Revolving Loan
Commitment upon which no Letters of Credit remain outstanding.
(c) The Borrower agrees to pay to the Issuing Lender, for
its own account, a facing fee in respect of each Letter of Credit issued
hereunder (the "Facing Fee") for the period from and including the date of
issuance of such Letter of Credit to and including the date of the
termination of such Letter of Credit, computed at a rate equal to 1/4 of 1%
per annum on the daily
17
Stated Amount of such Letter of Credit, provided that in any event the
minimum amount of the Facing Fee payable in any 12 month period for each
Letter of Credit shall be $500; it being agreed that, on the date of issuance
of any Letter of Credit and on each anniversary thereof prior to the
termination of such Letter of Credit, if $500 will exceed the amount of
Facing Fees that will accrue with respect to such Letter of Credit for the
immediately succeeding 12 month period, the full $500 shall be payable on the
date of issuance of such Letter of Credit and on each such anniversary
thereof. Except as otherwise provided in the proviso to the immediately
preceding sentence, accrued Facing Fees shall be due and payable quarterly in
arrears on each Quarterly Payment Date and upon the first day after the
termination of the Total Revolving Loan Commitment upon which no Letters of
Credit remain outstanding.
(d) The Borrower agrees to pay to the Issuing Lender, for
its own account, upon each payment under, issuance of, or amendment to, any
Letter of Credit, such amount as shall at the time of such event be the
administrative charge and the reasonable expenses which the Issuing Lender is
generally imposing in connection with such occurrence with respect to letters
of credit.
(e) The Borrower agrees to pay to the Administrative Agent
and the Documentation Agent, for their own respective accounts, such other
fees as have been agreed to in writing by the Borrower and the Administrative
Agent.
3.02 VOLUNTARY TERMINATION OF UNUTILIZED COMMITMENTS. (a)
Upon at least one Business Day's prior written notice to the Administrative
Agent at the Notice Office (which notice the Administrative Agent shall
promptly transmit to each of the Lenders), the Borrower shall have the right,
at any time or from time to time, without premium or penalty, to terminate
the Total Unutilized Revolving Loan Commitment, in whole or in part, pursuant
to this Section 3.02(a), in an integral multiple of $100,000, in the case of
partial reductions to the Total Unutilized Revolving Loan Commitment,
PROVIDED that each such reduction shall apply proportionately to permanently
reduce the Revolving Loan Commitment of each Lender.
(b) In the event of a refusal by a Lender to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Lenders as (and to
the extent) provided in Section 13.12(b), the Borrower may, subject to its
compliance with the requirements of Section 13.12(b), upon five Business
Days' prior written notice to the Administrative Agent at the Notice Office
(which notice the Administrative Agent shall promptly transmit to each of the
Lenders) terminate the entire Revolving Loan Commitment of such Lender, so
long as all Revolving Loans, together with accrued and unpaid interest, Fees
and all other amounts, owing to such Lender are repaid concurrently with the
effectiveness of such termination pursuant to Section 4.01(b) (at which time
Schedule I shall be deemed modified to reflect such changed amounts), and at
such time, such Lender shall no longer constitute a "Lender" for purposes of
this Agreement, except with respect to indemnifications under this Agreement
(including, without limitation, Sections 1.10, 1.11, 2.06, 4.04, 12.06 and
13.01), which shall survive as to such repaid Lender.
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3.03 MANDATORY REDUCTION OF COMMITMENTS. (a) The Total
Revolving Loan Commitment (and the Revolving Loan Commitment of each Lender)
shall terminate in its entirety on September 10, 1999 unless the Effective
Date has occurred on or before such date.
(b) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, on each date on or after the
Effective Date upon which Holdings or any of its Subsidiaries receives any
cash proceeds from any incurrence by Holdings or any of its Subsidiaries of
Indebtedness for borrowed money (other than Indebtedness for borrowed money
permitted to be incurred pursuant to Section 9.04 as such Section is in
effect on the Effective Date), the Total Revolving Loan Commitment shall be
permanently reduced on such date by an amount equal to 100% of the Net Debt
Proceeds of the respective incurrence of Indebtedness.
(c) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, within two Business Days after each
date on or after the Effective Date upon which Holdings or any of its
Subsidiaries receives any cash proceeds from any Asset Sale, the Total
Revolving Loan Commitment shall be permanently reduced on such date by an
amount equal to 100% of the Net Sale Proceeds from such Asset Sale; PROVIDED
that (x) with respect to no more than $5,000,000 in the aggregate of cash
proceeds from Asset Sales in any fiscal year of Holdings, such Net Sale
Proceeds therefrom shall not give rise to a reduction to the Total Revolving
Loan Commitment pursuant to this Section 3.03(c) on such date to the extent
that no Default or Event of Default then exists and Holdings has delivered a
certificate to the Administrative Agent on or prior to such date stating that
such Net Sale Proceeds shall be used to purchase assets that replace the
assets that were the subject of such Asset Sale or assets that will be used
in the business of the Borrower or its Subsidiaries (collectively,
"Replacement Assets") within 180 days following the date of such Asset Sale
(which certificate shall set forth the estimates of the proceeds to be so
expended), and (y) with respect to any one Asset Sale during the term of this
Agreement of greater than $5,000,000, but no more than $20,000,000, in the
aggregate of cash proceeds, such Net Sale Proceeds therefrom (and not only
the amount in excess of $5,000,000) shall not give rise to a reduction to the
Total Revolving Loan Commitment pursuant to this Section 3.03(c) on such date
to the extent that no Default or Event of Default then exists and Holdings
has delivered a certificate to the Administrative Agent on or prior to such
date stating that such Net Sale Proceeds shall be used to purchase
Replacement Assets within 60 days following the date of such Asset Sale
(which certificate shall set forth the estimates of the proceeds to be so
expended), and so long as at the time of such Asset Sale the Net Sale
Proceeds therefrom are delivered to the Administrative Agent to be held in a
cash collateral account satisfactory to the Administrative Agent until such
time as such Net Sale Proceeds are reinvested in Replacement Assets (at which
time all or such portion of the Net Sale Proceeds which are reinvested in
Replacement Assets shall be released from such cash collateral account) and
PROVIDED FURTHER, that if all or any portion of such Net Sale Proceeds are
not so reinvested in Replacement Assets within such 180 day period or 60 day
period, as the case may be, the Total Revolving Loan Commitment shall be
permanently reduced on the last day of such period (or such earlier date as
may be designated by the Borrower) by an amount equal to such remaining
portion.
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(d) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, within 10 days following each date
on or after the Effective Date upon which Holdings or any of its Subsidiaries
receives any cash proceeds from any Recovery Event, the Total Revolving Loan
Commitment shall be permanently reduced by an amount equal to 100% of the Net
Insurance Proceeds from such Recovery Event, PROVIDED that so long as no
Default or Event of Default then exists, such Net Insurance Proceeds shall
not be required to reduce the Total Revolving Loan Commitment on such date to
the extent that Holdings has delivered a certificate to the Administrative
Agent on or prior to such date stating that such Net Insurance Proceeds shall
be used to replace or restore any properties or assets in respect of which
such Net Insurance Proceeds were paid within 365 days following the date of
the receipt of such Net Insurance Proceeds (which certificate shall set forth
the estimates of the proceeds to be so expended).
(e) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, the Total Revolving Loan Commitment
(and the Revolving Loan Commitment of each Lender) shall (a) be permanently
reduced (to the extent not previously reduced) to $45,000,000 on the third
anniversary of the Effective Date, $37,500,000 on the fourth anniversary of
the Effective Date, $25,000,000 on the fifth anniversary of the Effective
Date and $12,500,000 on the sixth anniversary of the Effective Date and (b)
terminate in its entirety on the earlier of (i) the date on which a Change of
Control occurs (unless the Required Lenders otherwise agree in writing) and
(ii) the Final Maturity Date.
(f) Each reduction to the Total Revolving Loan Commitment
pursuant to this Section 3.03 shall be applied proportionately to permanently
reduce the Revolving Loan Commitment of each Lender.
SECTION 4. PREPAYMENTS; PAYMENTS; TAXES.
4.01 VOLUNTARY PREPAYMENTS. (a) The Borrower shall have the
right to prepay the Loans, without premium or penalty, in whole or in part at
any time and from time to time on the following terms and conditions: (i) the
Borrower shall give the Administrative Agent prior to 1:00 P.M. (New York
time) at the Notice Office (x) at least one Business Day's prior written
notice (or telephonic notice promptly confirmed in writing) of its intent to
prepay Base Rate Loans (or same day notice in the case of a prepayment of
Swingline Loans) and (y) at least three Business Days' prior written notice
(or telephonic notice promptly confirmed in writing) of its intent to prepay
Eurodollar Loans, the amount of such prepayment and the Types of Loans to be
prepaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings pursuant to which made, which notice the Administrative Agent
shall, except in the case of Swingline Loans, promptly transmit to each of
the Lenders; (ii) each partial prepayment of Revolving Loans pursuant to this
Section 4.01(a) shall be in an aggregate principal amount of at least
$1,000,000, and (z) each partial prepayment of Swingline Loans pursuant to
this Section 4.01(a) shall be in an aggregate principal amount of at least
$50,000, PROVIDED that if any partial prepayment of Eurodollar Loans made
pursuant to any Borrowing shall reduce the outstanding principal amount of
Eurodollar Loans made pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount applicable thereto, then such Borrowing may not be
continued as a
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Borrowing of Eurodollar Loans and any election of an Interest Period with
respect thereto given by the Borrower shall have no force or effect; and
(iii) each prepayment pursuant to this Section 4.01(a) in respect of any
Revolving Loans made pursuant to a Borrowing shall be applied PRO RATA among
the Lenders which made such Revolving Loans, provided that at the Borrower's
election in connection with any prepayment of Revolving Loans pursuant to
this Section 4.01(a), such prepayment shall not, so long no Default or Event
of Default then exists, be applied to any Revolving Loan of a Defaulting
Lender.
(b) In the event of a refusal by a Lender to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Lenders as (and to
the extent) provided in Section 13.12(b), the Borrower may, upon five
Business Days' prior written notice to the Administrative Agent at the Notice
Office (which notice the Administrative Agent shall promptly transmit to each
of the Lenders) repay all Revolving Loans of, together with accrued and
unpaid interest, Fees and other amounts owing to, such Lender in accordance
with, and subject to the requirements of, said Section 13.12(b) so long as
(A) the entire Revolving Loan Commitment of such Lender is terminated
concurrently with such repayment pursuant to Section 3.02(b) (at which time
Schedule I shall be deemed modified to reflect the changed Revolving Loan
Commitments) and (B) the consents, if any, required under Section 13.12(b) in
connection with the repayment pursuant to this clause (b) have been obtained.
4.02 MANDATORY REPAYMENTS. (a) On any day on which the sum
of the aggregate outstanding principal amount of the Revolving Loans,
Swingline Loans and the Letter of Credit Outstandings exceeds the Total
Revolving Loan Commitment as then in effect, the Borrower shall prepay on
such day the principal of Swingline Loans and, after all Swingline Loans have
been repaid in full (if no Swingline Loans are outstanding), Revolving Loans
in an amount equal to such excess. If, after giving effect to the prepayment
of all outstanding Swingline Loans and Revolving Loans, the aggregate amount
of the Letter of Credit Outstandings exceeds the Total Revolving Loan
Commitment as then in effect, the Borrower shall pay to the Administrative
Agent at the Payment Office on such day an amount of cash and/or Cash
Equivalents equal to the amount of such excess (up to a maximum amount equal
to the Letter of Credit Outstandings at such time), such cash and/or Cash
Equivalents to be held as security for all obligations of the Borrower to the
Issuing Lender and the Lenders hereunder in a cash collateral account to be
established by the Administrative Agent.
(b) With respect to each repayment of Revolving Loans
required by this Section 4.02 (including repayments resulting from the
reduction of the Total Revolving Loan Commitment pursuant to Section 3.03),
the Borrower may designate the Types of Revolving Loans which are to be
repaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings pursuant to which made, PROVIDED that: (i) repayments of
Eurodollar Loans pursuant to this Section 4.02 may only be made on the last
day of an Interest Period applicable thereto unless all Eurodollar Loans with
Interest Periods ending on such date of required repayment and all Base Rate
Loans have been paid in full; (ii) if any repayment of Eurodollar Loans made
pursuant to a single Borrowing shall reduce the outstanding Eurodollar Loans
made pursuant to such Borrowing to an amount less than the Minimum Borrowing
Amount applicable thereto,
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such Borrowing shall be converted at the end of the then current Interest
Period into a Borrowing of Base Rate Loans; and (iii) each repayment of any
Revolving Loans made pursuant to a Borrowing shall be applied PRO RATA among
the Lenders which made such Revolving Loans. In the absence of a designation
by the Borrower as described in the preceding sentence, the Administrative
Agent shall, subject to the above, make such designation in its sole
discretion.
(c) Notwithstanding anything to the contrary contained in
this Agreement or in any other Credit Document, (i) all then outstanding
Revolving Loans shall be repaid in full on the Final Maturity Date, (ii) all
then outstanding Loans shall be repaid in full on the date on which a Change
of Control occurs (unless the Required Lenders otherwise agree in writing)
and (iii) all then outstanding Swingline Loans shall be repaid in full on the
Swingline Expiry Date.
4.03 METHOD AND PLACE OF PAYMENT. Except as otherwise
specifically provided herein, all payments under this Agreement or under any
Note shall be made to the Administrative Agent for the account of the Lender
or Lenders entitled thereto not later than 1:00 P.M. (New York time) on the
date when due and shall be made in Dollars in immediately available funds at
the Payment Office. Whenever any payment to be made hereunder or under any
Note shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest shall be payable at the applicable
rate during such extension.
4.04 NET PAYMENTS. (a) All payments made by the Borrower
hereunder or under any Note will be made without setoff, counterclaim or
other defense. Except as provided in Section 4.04(b), all such payments will
be made free and clear of, and without deduction or withholding for, any
present or future taxes, levies, imposts, duties, fees, assessments or other
charges of whatever nature now or hereafter imposed by any jurisdiction or by
any political subdivision or taxing authority thereof or therein with respect
to such payments (but excluding, except as provided in the second succeeding
sentence, any tax imposed on or measured by the net income or profits of a
Lender pursuant to the laws of the jurisdiction in which it is organized or
the jurisdiction in which the principal office or applicable lending office
of such Lender is located or, in each case, any subdivision thereof or
therein) and all interest, penalties or similar liabilities with respect to
such non-excluded taxes, levies, imposts, duties, fees, assessments or other
charges (all such non-excluded taxes, levies, imposts, duties, fees,
assessments or other charges being referred to collectively as "Taxes"). If
any Taxes are so levied or imposed, the Borrower agrees to pay the full
amount of such Taxes, and such additional amounts as may be necessary so that
every payment of all amounts due under this Agreement or under any Note,
after withholding or deduction for or on account of any Taxes, will not be
less than the amount provided for herein or in such Note. If any amounts are
payable in respect of Taxes pursuant to the preceding sentence, the Borrower
agrees to reimburse each Lender, upon the written request of such Lender, for
taxes imposed on or measured by the net income or profits of such Lender
pursuant to the laws of the jurisdiction in which such Lender is organized or
in which the principal office or applicable lending office of such Lender is
located or under the laws of any political subdivision or taxing authority of
any such jurisdiction in which such Lender is organized or in which the
principal office or applicable lending office of such Lender is located and
for any withholding of taxes as such Lender shall determine are payable by,
or withheld
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from, such Lender, in respect of such amounts so paid to or on behalf of such
Lender pursuant to the preceding sentence and in respect of any amounts paid
to or on behalf of such Lender pursuant to this sentence. The Borrower will
furnish to the Administrative Agent within 45 days after the date the payment
of any Taxes is due pursuant to applicable law certified copies of tax
receipts evidencing such payment by the Borrower. The Borrower agrees to
indemnify and hold harmless each Lender, and reimburse such Lender upon its
written request, for the amount of any Taxes so levied or imposed and paid by
such Lender.
(b) Each Lender that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income
tax purposes agrees to deliver to the Borrower and the Administrative Agent
on or prior to the Effective Date, or in the case of a Lender that is an
assignee or transferee of an interest under this Agreement pursuant to
Section 1.13 or 13.04 (unless the respective Lender was already a Lender
hereunder immediately prior to such assignment or transfer), on the date of
such assignment or transfer to such Lender, (i) two accurate and complete
original signed copies of Internal Revenue Service Form 4224 or 1001 (or
successor forms) certifying to such Lender's entitlement to a complete
exemption from United States withholding tax with respect to payments to be
made under this Agreement and under any Note, or (ii) if the Lender is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot
deliver either Internal Revenue Service Form 1001 or 4224 (or successor
forms) pursuant to clause (i) above, (x) a certificate substantially in the
form of Exhibit D (any such certificate, a "Section 4.04(b)(ii) Certificate")
and (y) two accurate and complete original signed copies of Internal Revenue
Service Form W-8 (or successor form) certifying to such Lender's entitlement
to a complete exemption from United States withholding tax with respect to
payments of interest to be made under this Agreement and under any Note. In
addition, each Lender agrees that from time to time after the Effective Date,
when a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, such Lender
will deliver to the Borrower and the Administrative Agent two new accurate
and complete original signed copies of Internal Revenue Service Form 4224 or
1001 (or successor forms), or Form W-8 (or successor form) and a Section
4.04(b)(ii) Certificate, as the case may be, and such other forms as may be
required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or such Lender shall
immediately notify the Borrower and the Administrative Agent of its inability
to deliver any such Form or Section 4.04(b)(ii) Certificate, in which case
such Lender shall not be required to deliver any such Form or Section
4.04(b)(ii) Certificate pursuant to this Section 4.04(b). Notwithstanding
anything to the contrary contained in Section 4.04(a), but subject to the
immediately succeeding sentence, (x) the Borrower shall be entitled, to the
extent it is required to do so by law, to deduct or withhold income or
similar taxes imposed by the United States (or any political subdivision or
taxing authority thereof or therein) from interest, Fees or other amounts
payable hereunder for the account of any Lender which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for U.S.
Federal income tax purposes to the extent that such Lender has not provided
to the Borrower U.S. Internal Revenue Service Forms that establish a complete
exemption from such deduction or withholding and (y) the Borrower shall not
be obligated pursuant to Section 4.04(a) hereof to gross-up payments to be
made to a Lender in respect of income or similar taxes imposed by the United
States if (I) such Lender has not provided to the
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Borrower the Internal Revenue Service Forms or the Section 4.04(b)(ii)
Certificate required to be provided to the Borrower pursuant to this Section
4.04(b) or (II) in the case of a payment, other than interest, to a Lender
described in clause (ii) above, to the extent that such Forms do not
establish a complete exemption from withholding of such taxes.
Notwithstanding anything to the contrary contained in the preceding sentence
or elsewhere in this Section 4.04, the Borrower agrees to pay any additional
amounts and to indemnify each Lender in the manner set forth in Section
4.04(a) (without regard to the identity of the jurisdiction requiring the
deduction or withholding) in respect of any Taxes deducted or withheld by it
as described in the immediately preceding sentence solely as a result of any
changes after the Effective Date in any applicable law, treaty, governmental
rule, regulation, guideline or order, or in the interpretation thereof,
relating to the deducting or withholding of such Taxes.
(c) If the Borrower pays any additional amounts under this
Section 4.04 to a Lender and such Lender determines in its sole discretion
that it has actually received or realized in connection therewith any refund
or any reduction of, or credit against, its Tax liabilities in or with
respect to the taxable year in which the additional amount is paid (a "Tax
Benefit"), such Lender shall pay to the Borrower an amount that such Lender
shall, in its sole discretion, determine is equal to the net benefit, after
tax, which was obtained by such Lender in such year as a consequence of such
Tax Benefit; PROVIDED, HOWEVER, that (i) any Lender may determine, in its
sole discretion, whether to seek a Tax Benefit, (ii) any Taxes that are
imposed on a Lender as a result of a disallowance or reduction (including
through the expiration of any tax credit carryover or carryback of such
Lender that otherwise would not have expired) of any Tax Benefit with respect
to which such Lender has made a payment to the Borrower pursuant to this
Section 4.04(c) shall be treated as a Tax for which the Borrower is obligated
to indemnify such Lender pursuant to this Section 4.04 without any exclusions
or defenses and (iii) nothing in this Section 4.04(c) shall require any
Lender to disclose any confidential information to the Borrower (including,
without limitation, its tax returns).
(d) The provisions of this Section 4.04 are subject to the
provisions of Section 13.17 (to the extent applicable).
SECTION 5. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE. The
occurrence of the Effective Date pursuant to Section 13.10 and the obligation
of each Lender to make Loans, and the obligation of the Issuing Lender to
issue Letters of Credit, on the Effective Date, is subject to the
satisfaction of the following conditions:
5.01 EXECUTION OF AGREEMENT; NOTES. On or prior to the
Effective Date, (i) this Agreement shall have been executed and delivered as
provided in Section 13.10 and (ii) there shall have been delivered to the
Administrative Agent for the account of each of the Lenders the appropriate
Revolving Note executed by the Borrower and to the Swingline Lender, the
Swingline Note executed by the Borrower, in each case, in the amount,
maturity and as otherwise provided herein.
5.02 OFFICER'S CERTIFICATE. On the Effective Date, the
Administrative Agent shall have received a certificate from each of Holdings,
WPIV and the Borrower, dated the Effective
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Date and signed on behalf of each such Credit Party by the Chairman of the
Board, the President or any Vice President of such Credit Party, stating on
behalf of such Credit Party that all of the conditions in Sections 5.08, 5.09
and 6.02 have been satisfied on such date.
5.03 OPINIONS OF COUNSEL. On the Effective Date, the
Administrative Agent shall have received (i) from Willkie Farr & Gallagher,
special counsel to the Credit Parties, an opinion addressed to the
Administrative Agent, the Collateral Agent and each of the Lenders and dated
the Effective Date covering the matters set forth in Exhibit E, and (ii)
opinions of local counsel to the Credit Parties, which opinions referred to
in clauses (i) and (ii) of this Section 5.03 shall be in form and substance
reasonably satisfactory to the Administrative Agent, the Documentation Agent
and the Required Lenders.
5.04 CORPORATE DOCUMENTS; PROCEEDINGS; ETC. (a) On the
Effective Date, the Administrative Agent shall have received a certificate
from each Credit Party, dated the Effective Date, signed by the Chairman of
the Board, the President or any Vice President of such Credit Party, and
attested to by the Secretary or any Assistant Secretary of such Credit Party,
in the form of Exhibit F with appropriate insertions, together with copies of
the certificate of incorporation (or equivalent organizational document) and
by-laws of such Credit Party and the resolutions of such Credit Party
referred to in such certificate, and the foregoing shall be in form and
substance reasonably acceptable to the Administrative Agent and the
Documentation Agent.
(b) All corporate and legal proceedings and all instruments
and agreements in connection with the transactions contemplated by this
Agreement and the other Credit Documents shall be reasonably satisfactory in
form and substance to the Administrative Agent, the Documentation Agent and
the Required Lenders, and the Administrative Agent shall have received all
information and copies of all documents and papers, including records of
corporate proceedings, governmental approvals, good standing certificates and
bring-down telegrams or facsimiles, if any, which the Administrative Agent
reasonably may have requested in connection therewith, such documents and
papers where appropriate to be certified by proper corporate or governmental
authorities.
5.05 PLANS; SHAREHOLDERS' AGREEMENTS; MANAGEMENT
AGREEMENTS; EMPLOYMENT AGREEMENTS; NON-COMPETE AGREEMENTS; COLLECTIVE
BARGAINING AGREEMENTS; TAX SHARING AGREEMENTS; EXISTING INDEBTEDNESS
AGREEMENTS. On or prior to the Effective Date, there shall have been
delivered or made available to the Administrative Agent true and correct
copies of the following documents:
(i) all Plans (and for each Plan that is required to file
an annual report on Internal Revenue Service Form 5500-series, a
copy of the most recent such report (including, to the extent
required, the related financial and actuarial statements and
opinions and other supporting statements, certifications, schedules
and information), and for each Plan that is a "single-employer
plan," as defined in Section 4001(a)(15) of ERISA, the most recently
prepared actuarial valuation therefor) and any other "employee
benefit plans," as defined in Section 3(3) of ERISA, and any other
material agreements, plans or arrangements, with or for the benefit
of current or former employees of Holdings
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or any of its Subsidiaries or any ERISA Affiliate (provided that the
foregoing shall apply in the case of any multiemployer plan, as
defined in 4001(a)(3) of ERISA, only to the extent that any document
described therein is in the possession of Holdings or any Subsidiary
of Holdings or any ERISA Affiliate or reasonably available thereto
from the sponsor or trustee of any such plan);
(ii) all collective bargaining agreements applying or
relating to any employee of Holdings or any of its Subsidiaries
(collectively, the "Collective Bargaining Agreements");
(iii) all agreements entered into by Holdings or any of its
Subsidiaries governing the terms and relative rights of its capital
stock and any agreements entered into by shareholders relating to
any such entity with respect to its capital stock (collectively, the
"Shareholders' Agreements");
(iv) all material agreements with members of, or with
respect to, the management of Holdings or any of its Subsidiaries
(collectively, the "Management Agreements");
(v) all material employment agreements entered into by
Holdings or any of its Subsidiaries (collectively, the "Employment
Agreements");
(vi) any non-compete agreement entered into by Holdings or
any of its Subsidiaries (collectively, the "Non-Compete Agreements");
(vii) all tax sharing, tax allocation and other similar
agreements entered into by Holdings or any of its Subsidiaries
(collectively, the "Tax Sharing Agreements"); and
(viii) all agreements evidencing or relating to
Indebtedness of Holdings or any of its Subsidiaries which is to
remain outstanding after giving effect to the Effective Date
(collectively, the "Existing Indebtedness Agreements");
all of which Plans, Collective Bargaining Agreements, Shareholders'
Agreements, Management Agreements, Employment Agreements, Non-Compete
Agreements, Tax Sharing Agreement and Existing Indebtedness Agreements shall
be in form and substance reasonably satisfactory to the Administrative Agent,
the Documentation Agent and the Required Lenders and shall be in full force
and effect on the Effective Date.
5.06 EXISTING INDEBTEDNESS; PREFERRED STOCK. On the
Effective Date, after giving effect to the Loans incurred on the Effective
Date, Holdings and its Subsidiaries shall have no outstanding Indebtedness or
preferred stock other than (i) the Obligations and (ii) such other
indebtedness, if any, permitted to remain outstanding pursuant to Section
9.04.
5.07 MARGIN REGULATIONS. On the Effective Date, all Loans
and other financing to the Borrower and its Subsidiaries under this Agreement
shall be in full compliance with all
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applicable requirements of Regulations T, U and X of the Board of Governors
of the Federal Reserve System.
5.08 ADVERSE CHANGE, ETC. (a) Since December 31, 1998,
nothing shall have occurred (and neither the Administrative Agent nor the
Documentation Agent nor the Lenders shall have become aware of any facts or
conditions not previously known) which the Administrative Agent, the
Documentation Agent or the Required Lenders shall reasonably determine (a)
has had, or could reasonably be expected to have, a material adverse effect
on the rights or remedies of the Lenders, the Documentation Agent or the
Administrative Agent, or on the ability of any Credit Party to perform its
obligations to them hereunder or under any other Credit Document or (b) has
had, or could reasonably be expected to have, a material adverse effect on
the entering into of the Credit Documents or on the business, operations,
financial condition or prospects of Holdings and its Subsidiaries taken as a
whole.
(b) On or prior to the Effective Date, all necessary
governmental (domestic and foreign) and material third party approvals and/or
consents in connection with the transactions contemplated by the Credit
Documents and otherwise referred to herein or therein shall have been
obtained and remain in effect, and all applicable waiting periods with
respect thereto shall have expired without any action being taken by any
competent authority which restrains, prevents or imposes materially adverse
conditions upon, the consummation of the transactions contemplated by the
Credit Documents or otherwise referred to herein or therein. Additionally,
there shall not exist any judgment, order, injunction or other restraint
issued or filed or a hearing seeking injunctive relief or other restraint
pending or notified prohibiting or imposing materially adverse conditions
upon, or materially delaying, or making economically unfeasible, the
consummation of the transactions contemplated by the Credit Documents or
otherwise required to herein or therein.
5.09 LITIGATION. Except as set forth on Schedule 5.09
hereof, on the Effective Date, there shall be no actions, suits or
proceedings pending or threatened (i) with respect to this Agreement or any
other Credit Document or (ii) which the Administrative Agent, the
Documentation Agent or the Required Lenders shall determine could reasonably
be expected to have a material adverse effect on (a) the entering into of the
Credit Documents or on the business, operations, financial condition or
prospects of Holdings and its Subsidiaries taken as a whole, (b) the rights
or remedies of the Lenders, the Documentation Agent or the Administrative
Agent hereunder or under any other Credit Document or (c) the ability of any
Credit Party to perform its respective obligations to the Lenders, the
Documentation Agent or the Administrative Agent hereunder or under any other
Credit Document.
5.10 PLEDGE AGREEMENT. On the Effective Date, each Credit
Party shall have duly authorized, executed and delivered the Pledge Agreement
in the form of Exhibit G (as amended, modified or supplemented from time to
time, the "Pledge Agreement") and shall have delivered to the Collateral
Agent, as pledgee thereunder, all of the Pledged Securities, if any, referred
to therein and owned by such Credit Party, (x) endorsed in blank in the case
of promissory notes constituting Pledged Securities and (y) together with
executed and undated stock powers in the case of capital stock constituting
Pledged Securities.
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5.11 SECURITY AGREEMENT. On the Effective Date, each Credit
Party shall have duly authorized, executed and delivered the Security
Agreement in the form of Exhibit H (as modified, supplemented or amended from
time to time, the "Security Agreement") covering all of such Credit Party's
present and future Security Agreement Collateral, together with:
(i) proper Financing Statements (Form UCC-1 or the
equivalent) fully executed for filing under the UCC or other
appropriate filing offices of each jurisdiction as may be necessary
or, in the reasonable opinion of the Collateral Agent, desirable to
perfect the security interests purported to be created by the
Security Agreement;
(ii) certified copies of Requests for Information or Copies
(Form UCC-11), or equivalent reports, listing all effective
financing statements that name any Credit Party or any of its
Subsidiaries as debtor and that are filed in the jurisdictions
referred to in clause (i) above, together with copies of such other
financing statements that name any Credit Party or any of its
Subsidiaries as debtor (none of which shall cover the Collateral
except to the extent evidencing Permitted Liens or in respect of
which the Collateral Agent shall have received termination
statements (Form UCC-3 or the equivalent) as shall be required by
local law fully executed for filing);
(iii) evidence of the completion of all other recordings
and filings of, or with respect to, the Security Agreement as may be
necessary to perfect the security interests intended to be created
by the Security Agreement; and
(iv) evidence that all other actions necessary to perfect
and protect the security interests purported to be created by the
Security Agreement have been taken.
5.12 SUBSIDIARIES GUARANTY. On the Effective Date, each
Subsidiary Guarantor, if any, shall have duly authorized, executed and
delivered the Subsidiaries Guaranty in the form of Exhibit I (as amended,
modified or supplemented from time to time, the "Subsidiaries Guaranty").
5.13 FINANCIAL STATEMENTS; PRO FORMA FINANCIAL STATEMENTS,
PROJECTIONS. On or prior to the Effective Date, the Administrative Agent
shall have received true and correct copies of the historical financial
statements, the PRO FORMA financial statements and the Projections referred
to in Sections 7.05(a) and (d).
5.14 SOLVENCY CERTIFICATE; INSURANCE CERTIFICATES. On or
prior to the Effective Date, the Administrative Agent shall have received:
(i) a solvency certificate from the Chief Financial Officer
of Holdings in the form of Exhibit J (as amended, modified or
supplemented from time to time, the "Solvency Certificate"), which
solvency certificate shall be in form and substance reasonably
satisfactory to the Administrative Agent, the Documentation Agent
and the Required Lenders and shall set forth the conclusions that,
after giving effect to the entering into of the Credit Documents,
Holdings and its Subsidiaries taken as a whole is not insolvent,
will not be rendered insolvent by the indebtedness incurred in
connection therewith, will
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not be left with unreasonably small capital with which to engage in
their business and will not have incurred debts beyond their ability
to pay debts as they mature; and
(ii) certificates of insurance complying with the
requirements of Section 8.03 for the business and properties of
Holdings and its Subsidiaries, in form and substance reasonably
satisfactory to the Administrative Agent and naming the Collateral
Agent as an additional insured and as loss payee, and stating that
such insurance shall not be cancelled without at least 30 days prior
written notice by the insurer to the Collateral Agent (or such
shorter period of time as a particular insurance company generally
provides).
5.15 FEES, ETC. On the Effective Date, the Borrower shall
have paid to the Administrative Agent, the Documentation Agent and/or the
Lenders all costs, fees and expenses (including, without limitation,
reasonable legal fees and expenses) payable to the Administrative Agent, the
Documentation Agent and/or the Lenders to the extent then due.
SECTION 6. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS. The
obligation of each Lender to make Loans (including any Loans made on the
Effective Date), and the obligation of the Issuing Lender to issue Letters of
Credit, is subject, at the time of each such Credit Event (except as
hereinafter indicated), to the satisfaction of the following conditions:
6.01 EFFECTIVE DATE. The Effective Date shall have
occurred.
6.02 NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the
time of each such Credit Event and also after giving effect thereto (i) there
shall exist no Default or Event of Default and (ii) all representations and
warranties contained herein and in the other Credit Documents shall be true
and correct in all material respects with the same effect as though such
representations and warranties had been made on the date of such Credit Event
(it being understood and agreed that any representation or warranty which by
its terms is made as of a specified date shall be required to be true and
correct in all material respects only as of such specified date).
6.03 NOTICE OF BORROWING; LETTER OF CREDIT REQUEST. (a)
Prior to the making of each Revolving Loan (other than a Revolving Loan made
pursuant to a Mandatory Borrowing), the Administrative Agent shall have
received a Notice of Borrowing meeting the requirements of Section 1.03(a).
Prior to the making of each Swingline Loan, the Swingline Lender shall have
received the notice referred to in Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the Issuing Lender shall have received a Letter of
Credit Request meeting the requirements of Section 2.03.
The occurrence of the Effective Date and the acceptance of
the benefits of each Credit Event shall constitute a representation and
warranty by Holdings, WPIV and the Borrower to the Administrative Agent and
each of the Lenders that all the conditions specified in Section 5 (with
respect to the occurrence of the Effective Date and Credit Events on the
Effective Date)
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and in this Section 6 (with respect to the occurrence of the Effective Date
and Credit Events on or after the Effective Date) and applicable to such
Credit Event exist as of that time. All of the Notes, certificates, legal
opinions and other documents and papers referred to in Section 5 and in this
Section 6, unless otherwise specified, shall be delivered to the
Administrative Agent at the Notice Office for the account of each of the
Lenders and, except for the Notes, in sufficient counterparts or copies for
each of the Lenders and shall be in form and substance reasonably
satisfactory to the Administrative Agent and the Required Lenders.
SECTION 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In
order to induce the Lenders to enter into this Agreement and to make the
Loans, and issue (or participate in) the Letters of Credit as provided
herein, each of the Parent Guarantors and the Borrower makes the following
representations, warranties and agreements, in each case after giving effect
to the entering into of the Credit Documents, all of which shall survive the
execution and delivery of this Agreement and the Notes and the making of the
Loans and issuance of the Letters of Credit, and with the occurrence of the
Effective Date and each other Credit Event on or after the Effective Date
being deemed to constitute a representation and warranty that the matters
specified in this Section 7 are true and correct in all material respects on
and as of the Effective Date and on the date of each such other Credit Event
(it being understood and agreed that any representation or warranty which by
its terms is made as of a specified date shall be required to be true and
correct in all material respects only as of such specified date).
7.01 COMPANY STATUS. Each Credit Party and each of its
Subsidiaries (i) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (ii) has the Company
power and authority to own its property and assets and to transact the
business in which it is engaged and presently proposes to engage and (iii) is
duly qualified and is authorized to do business and is in good standing in
each jurisdiction where the ownership, leasing or operation of its property
or the conduct of its business requires such qualifications except for
failures to be so qualified which, individually or in the aggregate, could
not reasonably be expected to have a material adverse effect on the business,
operations or financial condition of Holdings and its Subsidiaries taken as a
whole.
7.02 COMPANY AND OTHER POWER AND AUTHORITY. Each Credit
Party has the Company power and authority to execute, deliver and perform the
terms and provisions of each of the Credit Documents to which it is party and
has taken all necessary corporate action to authorize the execution, delivery
and performance by it of each of such Credit Documents. Each Credit Party has
duly executed and delivered each of the Credit Documents to which it is
party, and each of such Credit Documents constitutes its legal, valid and
binding obligation enforceable in accordance with its terms, except to the
extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
generally affecting creditors' rights and by equitable principles (regardless
of whether enforcement is sought in equity or at law).
7.03 NO VIOLATION. Neither the execution, delivery or
performance by any Credit Party of the Credit Documents to which it is a
party, nor compliance by it with the terms and provisions thereof, (i) will
contravene any provision of any law, statute, rule or regulation or any
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order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict with or result in any breach of any of
the terms, covenants, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of (or the obligation to
create or impose) any Lien (except pursuant to the Security Documents) upon
any of the property or assets of Holdings or any of its Subsidiaries pursuant
to the terms of any indenture, mortgage, deed of trust, credit agreement or
loan agreement, or any other material agreement, contract or instrument, to
which Holdings or any of its Subsidiaries is a party or by which it or any of
its property or assets is bound or to which it may be subject or (iii) will
violate any provision of the certificate of incorporation or by-laws (or
equivalent organizational documents) of Holdings or any of its Subsidiaries.
7.04 APPROVALS. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except for those that have otherwise been obtained or made on or prior to
the Effective Date and which remain in full force and effect on the Effective
Date), or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of any Credit Document or
(ii) the legality, validity, binding effect or enforceability of any such
Credit Document.
7.05 FINANCIAL STATEMENTS; FINANCIAL CONDITION; UNDISCLOSED
LIABILITIES; PROJECTIONS; ETC. (a) The consolidated balance sheets of
Holdings and its Subsidiaries for the fiscal year and fiscal quarter ended on
December 31, 1998 and June 30, 1999, respectively and the related
consolidated statements of income, cash flows and shareholders' equity of
Holdings and its Subsidiaries for the fiscal year or fiscal quarter, as the
case may be, ended on such dates, copies of which have been furnished to the
Lenders prior to the Effective Date, present fairly in all material respects
the consolidated financial position of Holdings and its Subsidiaries at the
date of such balance sheets and the consolidated results of the operations of
Holdings and its Subsidiaries for the periods covered thereby. All of the
foregoing historical financial statements have been prepared in accordance
with generally accepted accounting principles consistently applied except as
disclosed in the notes thereto. The PRO FORMA consolidated financial
statements of Holdings and its Subsidiaries as of December 31, 1998, after
giving effect to the entering into of the Credit Documents and the financing
therefor, copies of which have been furnished to the Lenders prior to the
Effective Date, present fairly in all material respects the PRO FORMA
consolidated financial position of Holdings and its Subsidiaries as of
December 31, 1998 and the PRO FORMA consolidated results of operations of
Holdings and its Subsidiaries for the fiscal year ended December 31, 1998.
After giving effect to the entering into of the Credit Documents, since
December 31, 1998, nothing shall have occurred that has had, or could
reasonably be expected to have, a material adverse effect on the business,
operations or financial condition of Holdings and its Subsidiaries taken as a
whole.
(b) On and as of the Effective Date and after giving effect
to the entering into of the Credit Documents and to all Indebtedness
(including any Loans) being incurred or assumed and Liens created by the
Credit Parties in connection therewith (a) the sum of the assets, at a fair
valuation, of Holdings and its Subsidiaries taken as a whole will exceed its
debts; (b) Holdings and its Subsidiaries taken as a whole has not incurred
and does not intend to incur, and
-31-
does not believe that it will incur, debts beyond its ability to pay such
debts as such debts mature; and (c) Holdings and its Subsidiaries taken as a
whole will have sufficient capital with which to conduct its business. For
purposes of this Section 7.05(b), "debt" means any liability on a claim, and
"claim" means (i) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right
to an equitable remedy for breach of performance if such breach gives rise to
a payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed,
secured or unsecured. The amount of contingent liabilities at any time shall
be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
(c) Except as fully disclosed in the financial statements
delivered pursuant to Section 7.05(a) and as set forth on Schedule 7.05(c)
hereof, there were as of the Effective Date no liabilities or obligations
with respect to Holdings or any of its Subsidiaries of any nature whatsoever
(whether absolute, accrued, contingent or otherwise and whether or not due)
which, either individually or in aggregate, could reasonably be expected to
be material to Holdings and its Subsidiaries taken as a whole. As of the
Effective Date, neither Holdings, nor WPIV nor the Borrower knows of any
basis for the assertion against it or any of its Subsidiaries of any
liability or obligation of any nature whatsoever that is not fully disclosed
in the financial statements delivered pursuant to Section 7.05(a) which,
either individually or in the aggregate, could reasonably be expected to be
material to Holdings and its Subsidiaries taken as a whole.
(d) On and as of the Effective Date, the Projections
delivered to the Administrative Agent and the Lenders prior to the Effective
Date have been prepared in good faith and are based on reasonable
assumptions, and there are no statements or conclusions in the Projections
which are based upon or include information known to Holdings, WPIV or the
Borrower to be misleading in any material respect or which fail to take into
account material information known to Holdings, WPIV or the Borrower
regarding the matters reported therein. On the Effective Date, Holdings, WPIV
and the Borrower believe that the Projections are reasonable, it being
recognized by the Lenders, 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.
7.06 LITIGATION. There are no actions, suits or proceedings
pending or, to the best knowledge of Holdings, WPIV and the Borrower,
threatened (i) with respect to the Credit Documents or (ii) that are
reasonably likely to materially and adversely affect the business, operations
or financial condition of Holdings and its Subsidiaries taken as a whole.
7.07 TRUE AND COMPLETE DISCLOSURE. All factual information
(taken as a whole) furnished by or on behalf of any Credit Party in writing
to the Administrative Agent or any Lender (including, without limitation, all
information contained in the Credit Documents) for purposes of or in
connection with this Agreement, the other Credit Documents or any transaction
contemplated herein or therein is, and all other such factual information
(taken as a whole) hereafter furnished by or on behalf of any Credit Party in
writing to the Administrative Agent or
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any Lender will be, true and accurate in all material respects on the date as
of which such information is dated or certified and not incomplete by
omitting to state any fact necessary to make such information (taken as a
whole) not misleading in any material respect at such time in light of the
circumstances under which such information was provided.
7.08 USE OF PROCEEDS; MARGIN REGULATIONS. (a) All proceeds
of the Loans shall be used for the working capital and general corporate
purposes of the Borrower and its Subsidiaries and to pay fees and expenses
incurred in connection with the Credit Documents.
(b) No part of any Credit Event (or the proceeds thereof)
will be used to purchase or carry any Margin Stock or to extend credit for
the purpose of purchasing or carrying any Margin Stock. Neither the making of
any Loan nor the use of the proceeds thereof nor the occurrence of any other
Credit Event will violate or be inconsistent with the provisions of
Regulation T, U or X of the Board of Governors of the Federal Reserve System.
7.09 TAX RETURNS AND PAYMENTS. Each of Holdings and each of
its Subsidiaries has filed, or received extensions for, all federal and state
income tax returns and all other material tax returns, domestic and foreign,
required to be filed by it and has paid all federal and state income taxes
and all other material taxes and assessments payable by it which have become
due, except for those contested in good faith and fully provided for on the
financial statements of Holdings and its Subsidiaries in accordance with
generally accepted accounting principles. Holdings and each of its
Subsidiaries have at all times paid, or have provided adequate reserves (in
the good faith judgment of the management of Holdings) for the payment of,
all federal, state and material local and foreign income taxes applicable for
all prior fiscal years and for the current fiscal year to date. Except as
disclosed on Schedule X, there is no material action, suit, proceeding,
investigation, audit or claim now pending or, to the best knowledge of
Holdings, WPIV and the Borrower threatened, by any authority regarding any
taxes relating to Holdings or any of its Subsidiaries. As of the Effective
Date, neither Holdings nor any of its Subsidiaries has entered into an
agreement or waiver or been requested to enter into an agreement or waiver
extending any statute of limitations relating to the payment or collection of
taxes of Holdings or any of its Subsidiaries, or is aware of any
circumstances that would cause the taxable years or other taxable periods of
Holdings or any of its Subsidiaries not to be subject to the normally
applicable statute of limitations.
7.10 COMPLIANCE WITH ERISA. Schedule IV sets forth, as of
the Effective Date, each Plan; except to the extent that failure of any of
the following statements to be true, would not, individually or in the
aggregate, have a material and adverse effect on the business, operations or
financial condition of Holdings and its Subsidiaries taken as a whole: each
Plan (and each related trust, insurance contract or fund) is in substantial
compliance with its terms and with all applicable laws, including, without
limitation, ERISA and the Code; each Plan (and each related trust, if any)
which is intended to be qualified under Section 401(a) of the Code has
received a determination letter from the Internal Revenue Service to the
effect that it meets the requirements of Sections 401(a) and 501(a) of the
Code or application for such determination has been made; no Reportable Event
has occurred; no Plan which is a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) is insolvent or in reorganization; no Plan has an
Unfunded
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Current Liability; no Plan which is subject to Section 412 of the Code or
Section 302 of ERISA has an accumulated funding deficiency, within the
meaning of such sections of the Code or ERISA, or has applied for or received
a waiver of an accumulated funding deficiency or an extension of any
amortization period, within the meaning of Section 412 of the Code or Section
303 or 304 of ERISA; all contributions required to be made with respect to a
Plan have been timely made except as would not result in any material
liability; neither Holdings nor any Subsidiary of Holdings nor any ERISA
Affiliate has incurred any material liability (including any indirect,
contingent or secondary liability) to or on account of a Plan pursuant to
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212
of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or expects to incur
any such material liability under any of the foregoing sections with respect
to any Plan; no condition exists which presents a material risk to Holdings
or any Subsidiary of Holdings or any ERISA Affiliate of incurring a material
liability to or on account of a Plan pursuant to the foregoing provisions of
ERISA and the Code; no proceedings have been instituted to terminate or
appoint a trustee to administer any Plan which is subject to Title IV of
ERISA; no action, suit, proceeding, hearing, audit or investigation with
respect to the administration, operation or the investment of assets of any
Plan (other than routine claims for benefits) is pending, or to the knowledge
of Holdings and its Subsidiaries, expected or threatened; using actuarial
assumptions and computation methods consistent with Part 1 of subtitle E of
Title IV of ERISA, the aggregate liabilities of Holdings and its Subsidiaries
and its ERISA Affiliates to all Plans which are multiemployer plans (as
defined in Section 4001(a)(3) of ERISA) in the event of a complete withdrawal
therefrom, as of the close of the most recent fiscal year of each such Plan
ended prior to the date of the most recent Credit Event, would not exceed
$50,000; each group health plan (as defined in Section 607(1) of ERISA or
Section 4980B(g)(2) of the Code) which covers or has covered employees or
former employees of Holdings, any Subsidiary of Holdings or any ERISA
Affiliate has at all times been operated in material compliance with the
provisions of Part 6 of subtitle B of Title I of ERISA and Section 4980B of
the Code; no lien imposed under the Code or ERISA on the assets of Holdings
or any Subsidiary of Holdings or any ERISA Affiliate exists or is likely to
arise on account of any Plan; and Holdings and its Subsidiaries may cease
contributions to or terminate any employee benefit plan maintained by any of
them without incurring any material liability.
7.11 THE SECURITY DOCUMENTS. (a) The provisions of the
Security Agreement are effective to create in favor of the Collateral Agent
for the benefit of the Secured Creditors a legal, valid and enforceable
security interest in all right, title and interest of the Credit Parties in
the Security Agreement Collateral described therein to the extent that a
security interest can be created therein under the UCC, and the Collateral
Agent, for the benefit of the Secured Creditors, has a fully perfected first
lien on, and security interest in, all right, title and interest of the
Credit Parties in all of the Security Agreement Collateral described therein
(to the extent such security interest can be perfected by filing a UCC-1
financing statement or, to the extent required by the Security Agreement, by
taking possession of the respective Security Agreement Collateral), subject
to no other Liens other than Permitted Liens. In addition, the recordation of
the Grant of Security Interest in U.S. Patents and Trademarks in the form
attached to the Security Agreement in the United States Patent and Trademark
Office, together with filings on Form UCC-1 made pursuant to the Security
Agreement, will create, as may be perfected by such filing and recordation, a
perfected security interest in the United States trademarks and patents
covered by
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the Security Agreement and specifically identified in such Grant and the
recordation of the Grant of Security Interest in U.S. Copyrights in the form
attached to the Security Agreement with the United States Copyright Office,
together with filings on Form UCC-1 made pursuant to the Security Agreement,
will create, as may be perfected by such filing and recordation, a perfected
security interest in the United States copyrights covered by the Security
Agreement and specifically identified in such Grant.
(b) The security interests created in favor of the
Collateral Agent, as pledgee, for the benefit of the Secured Creditors, under
the Pledge Agreement constitute first priority perfected security interests
in the Pledge Agreement Collateral described therein, subject to no security
interests of any other Person, except Permitted Liens. No filings or
recordings (other than those made pursuant to the Security Agreement) are
required to perfect (or maintain the perfection or priority of) the security
interests created in the Pledge Agreement Collateral.
(c) After the execution and delivery thereof pursuant to
Section 8.11, the Mortgages create, for the obligations purported to be
secured thereby, a valid and enforceable perfected security interest in and
mortgage lien on all of the Mortgaged Properties in favor of the Collateral
Agent (or such other trustee as may be required or desired under local law)
for the benefit of the Secured Creditors, superior to and prior to the rights
of all third persons (except that the security interest and mortgage lien
created in the Mortgaged Properties may be subject to the Permitted
Encumbrances related thereto and other Permitted Liens) and subject to no
other Liens (other than Permitted Liens). Schedule III contains a true and
complete list of each parcel of Real Property owned or leased by Holdings and
its Subsidiaries on the Effective Date, and the type of interest therein held
by Holdings or such Subsidiary. Holdings and each of its Subsidiaries have
good and marketable title to all fee-owned Real Property and valid leasehold
title to all Leaseholds, in each case free and clear of all Liens except
those described in the first sentence of this subsection (c).
7.12 PROPERTIES. Holdings and each of its Subsidiaries have
good and marketable title to all material properties owned by them, including
all property reflected in the balance sheets referred to in Section 7.05(a)
(except as sold or otherwise disposed of since the date of such balance sheet
in the ordinary course of business or as permitted by the terms of this
Agreement), free and clear of all Liens, other than Permitted Liens.
7.13 CAPITALIZATION. On the Effective Date and after giving
effect to the entering into of the Credit Documents and the other
transactions contemplated hereby, 100% of the membership interest of the
Borrower shall be owned by Holdings and WPIV. All outstanding membership
interests of the Borrower have been duly and validly issued, are fully paid
and nonassessable. The Borrower does not have outstanding any securities
convertible into or exchangeable for its membership interests or outstanding
any rights to subscribe for or to purchase, or any options for the purchase
of, or any agreement providing for the issuance (contingent or otherwise) of,
or any calls, commitments or claims of any character relating to, its
membership interests.
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7.14 SUBSIDIARIES. As of the Effective Date, Holdings has no
Subsidiaries other than WPIV, the Borrower and its Subsidiaries and the
Borrower has no Subsidiaries other than those Subsidiaries listed on Schedule
V. Schedule V correctly sets forth, as of the Effective Date, the percentage
ownership (direct or indirect) of Holdings in each class of capital stock or
other equity of each of its Subsidiaries and also identifies the direct owner
thereof.
7.15 COMPLIANCE WITH STATUTES, ETC. Each of Holdings and each of its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and
the ownership of its property (including applicable statutes, regulations,
orders and restrictions relating to environmental standards and controls),
except such noncompliances as could not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the business,
operations or financial condition of Holdings and its Subsidiaries taken as a
whole.
7.16 INVESTMENT COMPANY ACT. Neither Holdings nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of
1940, as amended.
7.17 PUBLIC UTILITY HOLDING COMPANY ACT. Neither Holdings nor any of its
Subsidiaries is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company" within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
7.18 ENVIRONMENTAL MATTERS. (a) Holdings and each of its Subsidiaries
have complied with, and on the date of each Credit Event are in compliance
with, all applicable Environmental Laws and the requirements of any permits
issued under such Environmental Laws. There are no pending or, to the
knowledge of Holdings, WPIV and the Borrower, threatened Environmental Claims
against Holdings or any of its Subsidiaries (including any such claim arising
out of the ownership, lease or operation by Holdings or any of its
Subsidiaries of any Real Property no longer owned, leased or operated by
Holdings or any of its Subsidiaries) or any Real Property owned, leased or
operated by Holdings or any of its Subsidiaries. There are no facts,
circumstances, conditions or occurrences with respect to the business or
operations of Holdings or any of its Subsidiaries, or any Real Property
owned, leased or operated by Holdings or any of its Subsidiaries (including
any Real Property formerly owned, leased or operated by Holdings or any of
its Subsidiaries but no longer owned, leased or operated by Holdings or any
of its Subsidiaries) or, to the knowledge of Holdings, WPIV or the Borrower,
any property adjoining or adjacent to any such Real Property, that could
reasonably be expected (i) to form the basis of an Environmental Claim
against Holdings or any of its Subsidiaries or any Real Property owned,
leased or operated by Holdings or any of its Subsidiaries or (ii) to cause
any Real Property owned, leased or operated by Holdings or any of its
Subsidiaries to be subject to any restrictions on the ownership, occupancy or
transferability of such Real Property by Holdings or any of its Subsidiaries
under any applicable Environmental Law.
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(b) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from, any Real Property owned,
leased or operated by Holdings or any of its Subsidiaries where such
generation, use, treatment, storage or transportation has violated or has
given rise to an Environmental Claim under, or could reasonably be expected
to violate or give rise to an Environmental Claim under, any Environmental
Law. Hazardous Materials have not at any time been Released or disposed of on
or from any Real Property owned, leased or operated by Holdings or any of its
Subsidiaries where such Release or disposal has violated or given rise to an
Environmental Claim under, or could reasonably be expected to violate or give
rise to an Environmental Claim under, any applicable Environmental Law.
(c) Notwithstanding anything to the contrary in this Section 7.18, the
representations and warranties made in this Section 7.18 shall not be untrue
unless the effect of any or all violations, claims, restrictions, failures
and noncompliances of the types described above in this Section 7.18 could
reasonably be expected to, either individually or in the aggregate, have a
material adverse effect on the business, operations or financial condition of
Holdings and its Subsidiaries taken as a whole.
7.19 LABOR RELATIONS. Neither Holdings nor any of its Subsidiaries is
engaged in any unfair labor practice that could reasonably be expected to
have a material adverse effect on Holdings and its Subsidiaries taken as a
whole. There is (i) no unfair labor practice complaint pending against
Holdings or any of its Subsidiaries or, to the knowledge of Holdings or the
Borrower, threatened against any of them, before the National Labor Relations
Board, and no grievance or arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against Holdings or any of its
Subsidiaries or, to the knowledge of Holdings, WPIV and the Borrower,
threatened against any of them, (ii) no strike, labor dispute, slowdown or
stoppage pending against Holdings or any of its Subsidiaries or, to the
knowledge of Holdings, WPIV and the Borrower, threatened against Holdings or
any of its Subsidiaries and (iii) no union representation question exists
with respect to the employees of Holdings or any of its Subsidiaries, except
(with respect to any matter specified in clause (i), (ii) or (iii) above,
either individually or in the aggregate) such as could not reasonably be
expected to have a material adverse effect on the business, operations or
financial condition of Holdings and its Subsidiaries taken as a whole.
7.20 PATENTS, LICENSES, FRANCHISES AND FORMULAS. Each of Holdings and
each of its Subsidiaries owns or has the right to use all the patents,
trademarks, permits, service marks, trade names, copyrights, licenses,
franchises, proprietary information (including but not limited to rights in
computer programs and databases) and formulas, or rights with respect to the
foregoing, and has obtained assignments of all leases and other rights of
whatever nature, necessary for the present conduct of its business, without
any known conflict with the rights of others which, or the failure to obtain
which, as the case may be, could reasonably be expected to result in a
material adverse effect on the business, operations or financial condition of
Holdings and its Subsidiaries taken as a whole.
7.21 INDEBTEDNESS. Schedule VI sets forth a true and complete list of
all Indebtedness (including Contingent Obligations) of Holdings and its
Subsidiaries as of the
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Effective Date and which is to remain outstanding after giving effect to the
entering into of the Credit Documents (excluding the Loans and the Letters of
Credit, the "Existing Indebtedness"), in each case showing the aggregate
principal amount thereof and the name of the respective borrower and any
Credit Party or any of its Subsidiaries which directly or indirectly
guarantees such debt.
7.22 SPECIAL PURPOSE CORPORATION. Each of the Parent Guarantors has no
significant assets (other than the capital stock of the Borrower) or material
liabilities (other than those liabilities under this Agreement, the other
Credit Documents to which it is a party and as otherwise permitted by Section
9.13(b)).
7.23 INSURANCE. Schedule VII sets forth a true and complete listing of
all insurance maintained by Holdings and its Subsidiaries as of the Effective
Date, and with the amounts insured (and any deductibles) set forth therein.
SECTION 8. AFFIRMATIVE COVENANTS. Each of the Parent Guarantors and the
Borrower hereby covenants and agrees that on and after the Effective Date and
until the Total Revolving Loan Commitment and all Letters of Credit have
terminated and the Loans, Notes and Unpaid Drawings, together with interest,
Fees and all other Obligations (other than indemnities described in Section
13.13 which are not then due and payable) incurred hereunder and thereunder,
are paid in full:
8.01 INFORMATION COVENANTS. Holdings will furnish to each Lender:
(a) QUARTERLY FINANCIAL STATEMENTS. Within 45 days after the close of the
first three quarterly accounting periods in each fiscal year of Holdings,
the consolidated balance sheet of Holdings and its Subsidiaries as at the
end of such quarterly accounting period and the related consolidated
statements of income, shareholders' equity and statement of cash flows for
such quarterly accounting period and for the elapsed portion of the fiscal
year ended with the last day of such quarterly accounting period, in each
case setting forth comparative figures for the related periods in the prior
fiscal year, all of which shall be certified by the Chief Financial Officer
of Holdings, subject to normal year-end audit adjustments and the absence of
footnotes.
(b) ANNUAL FINANCIAL STATEMENTS. Within 90 days after the close of each
fiscal year of Holdings, (i) the consolidated balance sheet of Holdings and
its Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income, shareholders' equity and statement of
cash flows for such fiscal year setting forth comparative figures for the
preceding fiscal year and certified by Ernst & Young LLP or such other
independent certified public accountants of recognized national standing
reasonably acceptable to the Administrative Agent, together with (but only
to the extent being provided generally by such accountants to their clients)
a report of such accounting firm stating that in the course of its regular
audit of the financial statements of Holdings and its Subsidiaries, which
audit was conducted in accordance with generally accepted auditing
standards, such accounting firm obtained no knowledge of any Default or an
Event of Default relating to accounting matters which has occurred and is
continuing or,
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if in the opinion of such accounting firm such a Default or Event of Default
has occurred and is continuing, a statement as to the nature thereof and
(ii) management's discussion and analysis of the material operational and
financial developments during such fiscal year (it being understood that, to
the extent such management's discussion and analysis is included in any
report on Form 10-K that is filed with the SEC in respect of such fiscal
year and such report is delivered to the Lenders pursuant to this Agreement,
no separate management discussion and analysis shall be required to be
delivered in respect of such fiscal year).
(c) MANAGEMENT LETTERS. Promptly after Holdings' or any of its
Subsidiaries' receipt thereof, a copy of any "management letter" received
from its certified public accountants and management's response thereto.
(d) BUDGETS. No later than 30 days following the first day of each fiscal
year of Holdings, a budget in form reasonably satisfactory to the
Administrative Agent (including budgeted statements of income and sources
and uses of cash and balance sheets) prepared by Holdings for each of the
twelve months of such fiscal year prepared in substantially the same detail
as the Projections.
(e) OFFICER'S CERTIFICATES. At the time of the delivery of the
financial statements provided for in Sections 8.01(a) and (b), a
certificate of the Chief Financial Officer of Holdings to the effect
that, to the best of such officer's knowledge, no Default or Event of
Default has occurred and is continuing or, if any Default or Event of
Default has occurred and is continuing, specifying the nature and
extent thereof, which certificate shall set forth in reasonable detail
the calculations required to establish whether Holdings and its
Subsidiaries were in compliance with the provisions of Sections
3.03(c), 3.03(d), 9.04 and 9.07 through 9.09, inclusive, at the end of
such fiscal quarter or year, as the case may be.
(f) NOTICE OF DEFAULT OR LITIGATION. Promptly upon, and in any
event within five Business Days after, any senior or executive officer
of any Credit Party obtains knowledge thereof, notice of (i) the
occurrence of any event which constitutes a Default or an Event of
Default and (ii) any litigation or governmental investigation or
proceeding pending (x) against Holdings or any of its Subsidiaries
which could reasonably be expected to materially and adversely affect
the business, operations or financial condition of Holdings and its
Subsidiaries taken as a whole, (y) with respect to any material
Indebtedness of Holdings or any of its Subsidiaries or (z) with respect
to the Credit Documents.
(g) OTHER REPORTS AND FILINGS. Promptly after the filing or
delivery thereof, copies of all financial information, proxy materials
and reports, if any, which Holdings or any of its Subsidiaries shall
publicly file with the Securities and Exchange Commission or any
successor thereto (the "SEC") or deliver to holders of its material
Indebtedness pursuant to the terms of the documentation governing such
Indebtedness (or any trustee, agent or other representative therefor).
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(h) ENVIRONMENTAL MATTERS. Promptly after any senior or
executive officer of any Credit Party obtains knowledge thereof, notice
of one or more of the following environmental matters, unless such
environmental matters could not, individually or when aggregated with
all other such environmental matters, be reasonably expected to
materially and adversely affect the business, operations or financial
condition of Holdings and its Subsidiaries taken as a whole:
(i) any pending or threatened Environmental Claim against Holdings
or any of its Subsidiaries or any Real Property owned, leased or operated
by Holdings or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any Real Property
owned, leased or operated by Holdings or any of its Subsidiaries that
(a) results in noncompliance by Holdings or any of its Subsidiaries with
any applicable Environmental Law or (b) could reasonably be expected to
form the basis of an Environmental Claim against Holdings or any of its
Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Real Property owned, leased
or operated by Holdings or any of its Subsidiaries that could reasonably
be expected to cause such Real Property to be subject to any restrictions
on the ownership, occupancy, use or transferability by Holdings or any of
its Subsidiaries of such Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in response to the
actual or alleged presence of any Hazardous Material on any Real Property
owned, leased or operated by Holdings or any of its Subsidiaries as
required by any Environmental Law or any governmental or other
administrative agency; PROVIDED, that in any event Holdings shall deliver
to each Lender all notices received by Holdings or any of its Subsidiaries
from any government or governmental agency under, or pursuant to, CERCLA
which identify Holdings or any of its Subsidiaries as potentially
responsible parties for remediation costs or which otherwise notify
Holdings or any of its Subsidiaries of potential liability under CERCLA.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial
action and Holdings' or such Subsidiary's response thereto.
(i) OTHER INFORMATION. From time to time, such other information or
documents (financial or otherwise) with respect to Holdings or any of its
Subsidiaries as the Administrative Agent or any Lender may reasonably
request.
8.02 BOOKS, RECORDS, INSPECTIONS, AUDITS AND ANNUAL MEETINGS. (a)
Holdings will, and will cause each of its Subsidiaries to, keep proper books
of record and accounts in which full, true and correct entries in conformity
with generally accepted accounting principles
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and all requirements of law shall be made of all dealings and transactions in
relation to its business and activities. Holdings will, and will cause each
of its Subsidiaries to, permit officers and designated representatives of the
Administrative Agent or any Lender to visit and inspect, under guidance of
officers of Holdings or such Subsidiary, any of the properties of Holdings or
such Subsidiary, and to examine the books of account of Holdings or such
Subsidiary and discuss the affairs, finances and accounts of Holdings or such
Subsidiary with, and be advised as to the same by, its and their officers and
independent accountants, all upon reasonable prior notice and at such
reasonable times and intervals and to such reasonable extent as the
Administrative Agent or such Lender may reasonably request.
(b) At a date to be mutually agreed upon between the Administrative
Agent and Holdings occurring on or prior to the 120th day after the close of
each fiscal year of Holdings, Holdings shall, at the request of the
Administrative Agent, hold a meeting with all of the Lenders at which meeting
shall be reviewed the financial results of Holdings and its Subsidiaries for
the previous fiscal year and the budgets presented for the current fiscal
year of Holdings.
8.03 MAINTENANCE OF PROPERTY; INSURANCE. (a) Holdings will, and will
cause each of its Subsidiaries to, (i) keep all property necessary to the
business of Holdings and its Subsidiaries in reasonably good working order
and condition, ordinary wear and tear excepted, (ii) maintain insurance on
all such property in at least such amounts and against at least such risks as
is consistent and in accordance with industry practice for companies
similarly situated owning similar properties in the same general areas in
which Holdings or any of its Subsidiaries operates, PROVIDED that Holdings
and its Subsidiaries may implement programs of self insurance (other than
with respect to casualty insurance) in the ordinary course of business and in
accordance with the industry standards for similarly situated companies so
long as reserves are maintained in accordance with generally accepted
accounting principles for the liabilities associated therewith, and (iii)
furnish to the Administrative Agent, upon written request, full information
as to the insurance carried.
(b) Holdings will, and will cause each of its Subsidiaries to, at all
times keep its property insured in favor of the Collateral Agent, and all
policies or certificates (or certified copies thereof) with respect to such
insurance (and any other insurance maintained by Holdings and/or such
Subsidiaries) (i) shall name the Collateral Agent as loss payee as to
casualty insurance, (ii) shall state that such insurance policies shall not
be cancelled without at least 30 days' prior written notice thereof by the
respective insurer to the Collateral Agent (or such shorter period of time as
a particular insurance company policy generally provides), (iii) shall
provide that the respective insurers irrevocably waive any and all rights of
subrogation with respect to the Collateral Agent and the Secured Creditors,
(iv) shall contain the standard non-contributing mortgage clause endorsement
in favor of the Collateral Agent with respect to hazard or liability
insurance, (v) shall, except in the case of public liability insurance,
provide that any losses shall be payable notwithstanding any act or neglect
of Holdings or any of its Subsidiaries and (vi) shall be deposited with the
Collateral Agent.
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(c) If Holdings or any of its Subsidiaries shall fail to insure its
property in accordance with this Section 8.03, or if Holdings or any of its
Subsidiaries shall fail to so name and deposit all policies or certificates
with respect thereto, the Collateral Agent shall have the right (but shall be
under no obligation), upon 10 days prior notice to the Borrower (although no
such notice shall be required to the extent same is not permitted to be given
under applicable law), to procure such insurance and Holdings, WPIV and the
Borrower agree to reimburse the Collateral Agent for all reasonable costs and
expenses of procuring such insurance.
8.04 CORPORATE FRANCHISES. Holdings will, and will cause each of its
Subsidiaries to, do or cause to be done, all things necessary to preserve and
keep in full force and effect its existence and its material rights,
franchises, licenses and patents; PROVIDED, HOWEVER, that nothing in this
Section 8.04 shall prevent (i) sales of assets and other transactions by
Holdings or any of its Subsidiaries in accordance with Section 9.02, (ii) the
withdrawal by Holdings or any of its Subsidiaries of its qualification as a
foreign corporation in any jurisdiction where such withdrawal could not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the business, operations or financial condition of Holdings
and its Subsidiaries taken as a whole or (iii) any termination of any such
rights, franchises, licenses or patents that is determined by any senior
officer or the Board of Directors of the Borrower to be in the best interest
of the Credit Parties and not otherwise disadvantageous in any material
respect to either the business of the Credit Parties or the interests of the
Lenders.
8.05 COMPLIANCE WITH STATUTES, ETC. Holdings will, and will cause each
of its Subsidiaries to, comply with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and
the ownership of its property (including applicable statutes, regulations,
orders and restrictions relating to environmental standards and controls),
except such noncompliances as could not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the business,
operations or financial condition of Holdings and its Subsidiaries taken as a
whole.
8.06 COMPLIANCE WITH ENVIRONMENTAL LAWS. (a) Holdings will comply, and
will cause each of its Subsidiaries to comply, with all Environmental Laws
applicable to the ownership or use of its Real Property now or hereafter
owned, leased or operated by Holdings or any of its Subsidiaries, except such
noncompliances as could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the business, operations or
financial condition of Holdings and its Subsidiaries taken as a whole, and,
subject to the right to contest such in good faith by appropriate
proceedings, will promptly pay or cause to be paid all costs and expenses
incurred in connection with such compliance, and will keep or cause to be
kept all such Real Property free and clear of any Liens imposed pursuant to
such Environmental Laws. Neither Holdings nor any of its Subsidiaries will
generate, use, treat, store, Release or dispose of, or permit the generation,
use, treatment, storage, Release or disposal of Hazardous Materials on any
Real Property now or hereafter owned, leased or operated by Holdings or any
of its Subsidiaries, or transport or permit the transportation of Hazardous
Materials to or from any such Real Property, except for Hazardous Materials
generated, used, treated, stored, Released, transported or disposed of at any
such Real Properties in compliance in all material respects with
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all applicable Environmental Laws and reasonably required in connection with
the operation, use and maintenance of the Real Property or the business or
operations of Holdings or any of its Subsidiaries.
(b) At any time that any Credit Party gives notice to the Lenders
pursuant to Section 8.01(h) or upon the exercise of any of the remedies
pursuant to the last paragraph of Section 10, then at the reasonable written
request of the Administrative Agent or the Required Lenders, Holdings, WPIV
and the Borrower will provide, at the sole expense of Holdings, WPIV and the
Borrower, an environmental site assessment report concerning any Real
Property owned, leased or operated by Holdings or any of its Subsidiaries,
prepared by an environmental consulting firm reasonably approved by the
Administrative Agent, indicating the presence or absence of Hazardous
Materials and the potential cost of any removal or remedial action in
connection with such Hazardous Materials on such Real Property. If Holdings,
WPIV or the Borrower fails to provide the same within 90 days after such
request was made, the Administrative Agent may order the same, the cost of
which shall be borne by Holdings, WPIV and the Borrower, and Holdings, WPIV
and the Borrower shall, to the extent within the powers of such Credit Party,
grant and hereby grant to the Administrative Agent and the Lenders and their
agents access to such Real Property and specifically grants the
Administrative Agent and the Lenders an irrevocable non-exclusive license,
subject to the rights of tenants, to undertake such an assessment of
reasonable scope at any reasonable time upon reasonable notice to Holdings,
all at the sole and reasonable expense of Holdings, WPIV and the Borrower.
8.07 ERISA. As soon as possible and, in any event, within twenty (20)
days after Holdings, any Subsidiary of Holdings or any ERISA Affiliate knows
or has reason to know of the occurrence of any of the following, Holdings
will deliver to each of the Lenders a certificate of the Chief Financial
Officer of Holdings setting forth the full details as to such occurrence and
the action, if any, that Holdings, such Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or proposed
to be given to or filed with or by Holdings, any Subsidiary, any ERISA
Affiliate, the PBGC, a Plan participant or the Plan administrator with
respect thereto: that a Reportable Event has occurred (except to the extent
that Holdings has previously delivered to the Lenders a certificate and
notices (if any) concerning such event pursuant to the next clause hereof);
that a contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a
Plan subject to Title IV of ERISA is subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
.64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably
expected to occur with respect to such Plan within the following 30 days;
that an accumulated funding deficiency, within the meaning of Section 412 of
the Code or Section 302 of ERISA, has been incurred or an application may be
or has been made for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code or Section 303 or 304 of
ERISA with respect to a Plan; that any material contribution required to be
made with respect to a Plan has not been timely made; that a Plan has been or
may be terminated, reorganized, partitioned or declared insolvent under Title
IV of ERISA; that a Plan has an Unfunded Current Liability; that proceedings
may be or have been instituted to terminate or appoint a trustee to
administer a Plan which is subject to Title IV of ERISA; that a proceeding
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has been instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan; that Holdings, any Subsidiary of Holdings or any
ERISA Affiliate will or may incur any liability (including any indirect,
contingent, or secondary liability) to or on account of the termination of or
withdrawal from a Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or
4212 of ERISA or with respect to a Plan under Section 401(a)(29), 4971, 4975
or 4980 of the Code or Section 409, 502(i) or 502(l) of ERISA or with respect
to a group health plan (as defined in Section 607(1) of ERISA or Section
4980B(g)(2) of the Code) under Section 4980B of the Code; or that Holdings or
any Subsidiary of Holdings may incur any material liability pursuant to any
employee welfare benefit plan (as defined in Section 3(1) of ERISA) that
provides benefits to retired employees or other former employees (other than
as required by Section 601 of ERISA) or any Plan. Holdings will deliver or
make available to each of the Lenders (i) a complete copy of the annual
report (on Internal Revenue Service Form 5500-series) of each Plan
(including, to the extent required, the related financial and actuarial
statements and opinions and other supporting statements, certifications,
schedules and information) required to be filed with the Internal Revenue
Service and (ii) copies of any records, documents or other information that
must be furnished to the PBGC with respect to any Plan pursuant to Section
4010 of ERISA. In addition to any certificates or notices delivered to the
Lenders pursuant to the first sentence hereof, copies of annual reports and
any records, documents or other information required to be furnished to the
PBGC, and any material notices received by Holdings, any Subsidiary of
Holdings or any ERISA Affiliate with respect to any Plan shall be delivered
or made available to the Lenders no later than ten (10) days after the date
such annual report has been filed with the Internal Revenue Service or such
records, documents and/or information has been furnished to the PBGC or such
notice has been received by Holdings, any Subsidiary or any ERISA Affiliate,
as applicable.
8.08 END OF FISCAL YEARS; FISCAL QUARTERS. Holdings will cause (i) each
of its, and each of its Subsidiaries', fiscal years to end on December 31 of
each year and (ii) each of its, and each of its Subsidiaries', fiscal
quarters to end on March 31, June 30, September 30 and December 31.
8.09 PERFORMANCE OF OBLIGATIONS. Except to the extent that nonpayment of
obligations does not constitute a Default under Sections 10.04 or 10.09,
Holdings will, and will cause each of its Subsidiaries to, perform all of its
obligations under the terms of each mortgage, indenture, security agreement,
loan agreement or credit agreement and each other material agreement,
contract or instrument by which it is bound, except such non-performances as
could not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the business, operations, financial condition or
prospects of Holdings and its Subsidiaries taken as a whole.
8.10 PAYMENT OF TAXES. Holdings will pay and discharge, and will cause
each of its Subsidiaries to pay and discharge, all material federal, state
and other material taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits, or upon any properties
belonging to it, prior to the date on which penalties attach thereto, and all
material lawful claims for sums that have become due and payable which, if
unpaid, might become a Lien not otherwise permitted under Section 9.01(i);
PROVIDED, that neither Holdings nor
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any of its Subsidiaries shall be required to pay any such tax, assessment,
charge, levy or claim which is being contested in good faith and by proper
proceedings if it has maintained adequate reserves with respect thereto in
accordance with generally accepted accounting principles.
8.11 ADDITIONAL SECURITY; FURTHER ASSURANCES. (a) Holdings will, and
will cause each of its Subsidiaries to, within five days after the
acquisition by Holdings or any such Subsidiary of any Real Property with a
fair market value (net of the principal amount of any Indebtedness secured by
such Real Property) of $3,000,000 or more (each a "Mortgaged Property"), give
notice thereof to the Administrative Agent and thereafter deliver to the
Collateral Agent a mortgage or deed of trust (each, a "Mortgage") securing
the Obligations of Holdings or such Subsidiary, as the case may be, in form
and substance reasonably satisfactory to the Administrative Agent, each of
which Mortgages shall constitute valid and enforceable Mortgages on the
respective Mortgaged Properties subject to no other Liens except for
Permitted Liens. Each Mortgage or instruments related thereto shall have been
duly recorded or filed in such manner and in such places as are required by
law to establish, perfect, preserve and protect the Liens in favor of the
Collateral Agent pursuant to such Mortgage and all taxes, fees and other
charges payable in connection therewith shall have been paid in full.
(b) Holdings will, and will cause each of its Subsidiaries to, at the
expense of Holdings and the Borrower, make, execute, endorse, acknowledge,
file and/or deliver to the Collateral Agent from time to time such
confirmatory or additional conveyances, financing statements, real property
surveys and environmental reports on new Mortgaged Properties as the
Collateral Agent may reasonably require. Furthermore, Holdings, WPIV and the
Borrower will cause to be delivered to the Collateral Agent such opinions of
counsel, title insurance and other related documents as may be reasonably
requested by the Administrative Agent to assure itself that this Section 8.11
has been complied with.
(c) If the Administrative Agent or the Required Lenders reasonably
determine that they are required by law or regulation to have appraisals
prepared in respect of new Mortgaged Properties, the Borrower will provide,
at its own expense, to the Administrative Agent appraisals which satisfy the
applicable requirements of the Real Estate Appraisal Reform Amendments of the
Financial Institution Reform, Recovery and Enforcement Act of 1989, as
amended, and which otherwise shall be in form and substance reasonably
satisfactory to the Administrative Agent.
(d) Holdings, WPIV and the Borrower agree that each action required
above by this Section 8.11 (other than the giving of the notice referred to
in clause (a) above) shall be completed no later than 90 days after such
action is either requested to be taken by the Administrative Agent or
required to be taken by Holdings and/or its Subsidiaries pursuant to the
terms of this Section 8.11; PROVIDED that, in no event will Holdings or any
of its Subsidiaries be required to take any action, other than using
commercially reasonable efforts, to obtain consents from third parties with
respect to its compliance with this Section 8.11.
8.12 YEAR 2000 COMPLIANCE. Any reprogramming required to permit the
proper functioning, in and following the year 2000, of (i) the computer
systems of any of the Credit
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Parties and (ii) equipment containing embedded microchips (including systems
and equipment supplied by others or with which the systems of any of the
Credit Parties interface) and the testing of all such systems and equipment,
as so reprogrammed, will be completed by October 31, 1999. The cost to the
Credit Parties of such reprogramming and testing and of the reasonably
foreseeable consequences of year 2000 to the Credit Parties (including,
without limitation, reprogramming errors and the failure of others' systems
or equipment) will not result in a Default or a material adverse effect on
the operations, business or financial condition of Holdings or any of its
Subsidiaries, taken as a whole. Except for such of the reprogramming referred
to in the preceding sentence as may be necessary, the computer and management
information systems of the Credit Parties are and, with ordinary course
upgrading and maintenance, will continue for the term of this Agreement to
be, sufficient to permit the Credit Parties to conduct their business without
a material adverse effect resulting therefrom.
SECTION 9. NEGATIVE COVENANTS. Each Parent Guarantor and the Borrower
hereby covenants and agrees that on and after the Effective Date and until
the Total Revolving Loan Commitment and all Letters of Credit have terminated
and the Loans, Notes and Unpaid Drawings, together with interest, Fees and
all other Obligations (other than any indemnities described in Section 13.13
which are not then due and payable) incurred hereunder and thereunder, are
paid in full:
9.01 LIENS. Holdings will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or
with respect to any property or assets (real or personal, tangible or
intangible) of Holdings or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such
property or assets (including sales of accounts receivable with recourse to
Holdings or any of its Subsidiaries), or assign any right to receive income
or consent to the filing of any financing statement under the UCC or any
other similar notice of Lien under any similar recording or notice statute;
PROVIDED that the provisions of this Section 9.01 shall not prevent the
creation, incurrence, assumption or existence of the following (Liens
described below are herein referred to as "Permitted Liens"):
(i) Liens for taxes, assessments or governmental charges or levies not
yet due or Liens for taxes, assessments or governmental charges or levies
being contested in good faith and by appropriate proceedings for which
adequate reserves have been established in accordance with generally
accepted accounting principles;
(ii) Liens in respect of property or assets of the Borrower or any of its
Subsidiaries imposed by law, which were incurred in the ordinary course of
business and do not secure Indebtedness for borrowed money, such as
carriers', warehousemen's, materialmen's and mechanics' liens and other
similar Liens arising in the ordinary course of business, and (x) which do
not in the aggregate materially detract from the value of the Borrower's or
such Subsidiary's property or assets or materially impair the use thereof
in the operation of the business of the Borrower or such Subsidiary or
(y) which are not yet due or which are being contested in good faith by
appropriate proceedings, which
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proceedings have the effect of preventing the forfeiture or sale of the
property or assets subject to any such Lien;
(iii) Liens in existence on the Effective Date which are listed, and the
property subject thereto described, in Schedule VIII, but only to the
respective date, if any, set forth in such Schedule VIII for the removal,
replacement and termination of any such Liens, plus renewals, replacements,
refinancings and extensions of such Liens to the extent set forth on
Schedule VIII, PROVIDED that (x) the aggregate principal amount of the
Indebtedness, if any, secured by such Liens does not increase from that
amount outstanding at the time of any such renewal, replacement, refinancing
or extension, plus any related ordinary course fees, prepayment premiums and
expenses, and (y) any such renewal, replacement, refinancing or extension
does not encumber any additional assets or properties of Holdings or any of
its Subsidiaries;
(iv) Permitted Encumbrances;
(v) Liens created pursuant to the Security Documents;
(vi) leases or subleases granted to other Persons not materially
interfering with the conduct of the business of Holdings or any of its
Subsidiaries;
(vii) Liens upon assets of the Borrower or any of its Subsidiaries subject
to Capitalized Lease Obligations to the extent such Capitalized Lease
Obligations are permitted by Section 9.04(iv) or 9.04(vi), PROVIDED that
(x) such Liens only serve to secure the payment of Indebtedness arising
under such Capitalized Lease Obligation or any extension, renewal,
refinancing or replacement thereof for the same or a lesser amount to the
extent then permitted by Section 9.04(iv) and (y) the Lien encumbering the
asset giving rise to the Capitalized Lease Obligation does not encumber any
other asset of the Borrower or any Subsidiary of the Borrower, except in
favor of the same vendor or vendors;
(viii) Liens placed upon equipment, machinery and/or Real Property
(including any improvements, accessions, proceeds, products and ancillary
property relating to any of the foregoing property) acquired after the
Effective Date and used in the ordinary course of business of the Borrower
or any of its Subsidiaries at the time of the acquisition thereof by the
Borrower or any such Subsidiary or within 90 days thereafter to secure
Indebtedness incurred to pay all or a portion of the purchase price,
construction costs or improvements costs thereof or to secure Indebtedness
incurred solely for the purpose of financing (or, to the extent permitted
above, refinancing) the acquisition, construction or improvement of any
such equipment, machinery and/or Real Property or extensions, renewals,
refinancings or replacements of any of the foregoing for the same or a
lesser amount, PROVIDED that (x) the aggregate outstanding principal amount
of all Indebtedness secured by Liens permitted by this clause (viii) shall
not at any time exceed that amount permitted by Section 9.04(iv) and (y) in
all events, the Lien encumbering the equipment, machinery and/or Real
Property so acquired, constructed or improved (and any such
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related property (including any such ancillary property)) does not encumber
any other asset of the Borrower or such Subsidiary, except in favor of the
same vendor or vendors;
(ix) easements, rights-of-way, restrictions (including building, zoning
and similar restrictions), utility agreements, covenants, reservations,
encroachments and other similar charges or encumbrances, and minor title
deficiencies, in each case not securing Indebtedness and not materially
interfering with the conduct of the business of Holdings or any of its
Subsidiaries;
(x) Liens arising from precautionary UCC financing statement filings
regarding operating leases or with respect to any inventory held on
consignment in the ordinary course of business;
(xi) statutory and common law landlords' liens under leases to which
Holdings or any of its Subsidiaries is a party;
(xii) Liens (other than Liens imposed under ERISA) incurred in the
ordinary course of business in connection with workers compensation claims,
unemployment insurance and social security benefits and Liens securing the
performance of bids, tenders, leases and contracts in the ordinary course of
business, statutory obligations, surety bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business
(exclusive of obligations in respect of the payment for borrowed money);
(xiii) Liens on property or assets acquired pursuant to a Permitted
Acquisition, or on property or assets of a Subsidiary of the Borrower in
existence at the time such Subsidiary is acquired pursuant to a Permitted
Acquisition, PROVIDED that (x) any Indebtedness that is secured by such
Liens is permitted to exist under Section 9.04(vii), and (y) such Liens are
not incurred in connection with, or in contemplation or anticipation of,
such Permitted Acquisition and do not attach to any other asset of the
Borrower or any of its Subsidiaries; and
(xiv) other Liens incidental to the conduct of the business or the
ownership of the assets of the Borrower or any Subsidiary that (a) were not
incurred in connection with borrowed money, (b) do not in the aggregate
materially detract from the value of the assets subject thereto or
materially impair the use thereof in the operation of such business and
(c) do not secure obligations in excess of $1,000,000 in the aggregate for
all such Liens.
In connection with the granting of Liens of the type described in clauses
(vii) and (viii) of this Section 9.01 by the Borrower or any of its
Subsidiaries, the Administrative Agent and the Collateral Agent shall be
authorized to take any actions deemed appropriate by it in connection
therewith (including, without limitation, by executing appropriate lien
releases or lien subordination agreements in favor of the holder or holders
of such Liens, in either case solely with respect to the item or items of
equipment or other assets subject to such Liens).
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9.02 CONSOLIDATION, MERGER, PURCHASE OR SALE OF ASSETS,
ETC. Holdings will not, and will not permit any of its Subsidiaries to, wind
up, liquidate or dissolve its affairs or enter into any transaction of merger
or consolidation, or convey, sell, lease or otherwise dispose of all or any
part of its property or assets, or enter into any sale-leaseback
transactions, or purchase or otherwise acquire (in one or a series of related
transactions) all or any part of the property or assets (other than purchases
or other acquisitions of inventory, materials, supplies and equipment in the
ordinary course of business) of any Person (or agree to do any of the
foregoing at any future time), except that the following transactions (and
agreements related thereto) shall be permitted:
(i) Capital Expenditures by the Borrower and its Subsidiaries
shall be permitted (although any Capital Expenditures constituting a
Permitted Acquisition shall be governed by clause (xi) of this Section
9.02);
(ii) each of the Borrower and its Subsidiaries may make sales
of inventory in the ordinary course of business;
(iii) each of the Borrower and its Subsidiaries may sell
uneconomic, obsolete or worn-out equipment, materials or other assets
in the ordinary course of business, provided that the aggregate amount
of the proceeds received from all assets sold pursuant to this clause
(iii) shall not exceed $1,000,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may sell assets
(other than the capital stock of any Subsidiary Guarantor unless all of
the capital stock of such Subsidiary Guarantor is sold), so long as
(except in the case of asset swaps, which may be done in compliance
with clause (xviii) of this Section 9.02 and without regard to the
requirements set forth in this clause (iv)) (v) no Default or Event of
Default then exists or would result therefrom, (w) each such sale is in
an arm's-length transaction and the Borrower or the respective
Subsidiary receives at least fair market value (as determined in good
faith by the Borrower or such Subsidiary, as the case may be), (x) the
total consideration received by the Borrower or such Subsidiary is at
least 75% cash, which cash is paid at the time of the closing of such
sale, PROVIDED that the amount of any liabilities (as shown on the
Borrower's or such Subsidiary's most recent balance sheet) of the
Borrower or any Subsidiary (other than liabilities that are by their
terms subordinated to the Obligations) that are assumed by the
transferee of any such assets shall be deemed to be cash for purposes
of this clause (x), (y) the Net Sale Proceeds therefrom are applied
and/or reinvested as (and to the extent) required by Section 3.03(c)
and (z) the aggregate amount of the proceeds received from all assets
sold pursuant to this clause (iv) (including, for this purpose, the
amount of any assumed liabilities referred to in clause (x) above)
shall not exceed $5,000,000 in any fiscal year of the Borrower;
PROVIDED that notwithstanding anything to the contrary contained in
this clause (iv), with respect to any one asset sale during the term of
this Agreement, the aggregate amount of the proceeds received from such
asset sale may exceed $5,000,000 so long as they do not exceed
$20,000,000;
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(v) Investments may be made to the extent permitted by
Section 9.05;
(vi) each of the Borrower and its Subsidiaries may lease (as
lessee) real or personal property (so long as any such lease does not
create a Capitalized Lease Obligation except to the extent permitted by
Section 9.04(iv));
(vii) each of the Borrower and its Subsidiaries may sell or
discount, in each case without recourse and in the ordinary course of
business, accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or collection
thereof;
(viii) each of the Borrower and its Subsidiaries may grant
leases or subleases to other Persons not materially interfering with
the conduct of the business of the Borrower or any of its Subsidiaries;
(ix) any Subsidiary of the Borrower (x) may be merged,
consolidated or liquidated with or into the Borrower so long as the
Borrower is the surviving corporation of such merger, consolidation or
liquidation and (y) may transfer all or any portion of its assets to
the Borrower;
(x) any Subsidiary of the Borrower (x) may be merged,
consolidated or liquidated with or into any other Subsidiary of the
Borrower so long as (i) in the case of any such merger, consolidation
or liquidation involving a Subsidiary Guarantor, the Subsidiary
Guarantor is the surviving corporation of such merger, consolidation or
liquidation and (ii) in addition to the requirements or preceding
clause (i), in the case of any such merger, consolidation or
liquidation involving a Wholly-Owned Subsidiary of the Borrower, the
Wholly-Owned Subsidiary is the surviving corporation of such merger,
consolidation or liquidation, and (y) may transfer all or any portion
of its assets to any Subsidiary Guarantor;
(xi) each of the Borrower and the Subsidiary Guarantors may
acquire all or substantially all of the assets of any Person (or all or
substantially all of the assets of a product line or division of any
Person) or at least 90% of the capital stock of any Person (any such
acquisition permitted by this clause (xi), a "Permitted Acquisition"),
so long as (i) no Default or Event of Default then exists or would
result therefrom, (ii) each of the representations and warranties
contained in Section 7 shall be true and correct in all material
respects both before and after giving effect to such Permitted
Acquisition, (iii) any Liens or Indebtedness assumed or issued in
connection with such acquisition are otherwise permitted under Section
9.01 or 9.04, as the case may be, (iv) the entity being acquired shall
be engaged in a similar or related business as the Borrower and its
Subsidiaries, (v) the only consideration paid by the Borrower or any
Subsidiary Guarantor in connection with any Permitted Acquisition
consists solely of cash, notes (to the extent permitted under Section
9.04(xi)), common stock of Holdings and/or preferred stock of Holdings
and (vi) at least 10 Business Days prior to the consummation of any
Permitted Acquisition, the Borrower shall have delivered to the
Administrative Agent and each of the Lenders a certificate of Holdings'
Chief Financial Officer certifying (and
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showing the calculations therefor in reasonable detail) that
Holdings and its Subsidiaries would have been in compliance with the
financial covenants set forth in Sections 9.07, 9.08 and 9.09 for
the Test Period then most recently ended prior to the date of the
consummation of such Permitted Acquisition, in each case with such
financial covenants to be determined on a PRO FORMA basis as if such
Permitted Acquisition had been consummated on the first day of such
Test Period (and assuming that any Indebtedness incurred, issued or
assumed in connection therewith had been incurred, issued or assumed
on the first day of, and had remained outstanding throughout, such
Test Period);
(xii) each of the Borrower and its Subsidiaries may, in the
ordinary course of business, license, as licensor or licensee, patents,
trademarks, copyrights and know-how to third Persons and to one
another, so long as any such license by the Borrower or its
Subsidiaries in its capacity as licensor does not prohibit the granting
of a Lien by the Borrower or any of its Subsidiaries pursuant to the
Security Agreement in such license or in the intellectual property
covered thereby;
(xiii) each of Holdings and its Subsidiaries may sell Cash
Equivalents permitted to be held by them pursuant to Section 9.05(ii)
so long as each such sale is for cash and at fair market value (as
determined in good faith by Holdings or such Subsidiary, as the case
may be);
(xiv) each of Holdings and its Subsidiaries may pay Dividends
to the extent permitted by Section 9.03;
(xv) Recovery Events shall be permitted;
(xvi) each of the Borrower and its Subsidiaries may enter into
sale and leaseback transactions with respect to their equipment and
Real Property acquired after the Effective Date, so long as (u) no
Default or Event of Default then exists or would result therefrom, (v)
each such sale and leaseback transaction is in an arm's-length
transaction and the Borrower or the respective Subsidiary receives at
least fair market value (as determined in good faith by the Borrower or
such Subsidiary, as the case may be), (w) the total consideration
received by the Borrower or such Subsidiary is cash and is paid at the
time of the closing of such sale, (x) the Net Sale Proceeds therefrom
are applied and/or reinvested as (and to the extent) required by
Section 3.03(c), (y) the aggregate amount of proceeds received from all
sale and leaseback transactions pursuant to this clause (xvi) shall not
exceed $1,000,000 in any fiscal year of the Borrower and (z) to the
extent that any such sale and leaseback transaction results in a
Capitalized Lease Obligation, such Capitalized Lease Obligation is
permitted under Section 9.04(iv);
(xvii) Holdings and its Subsidiaries, considered together, may
convey, sell, lease or otherwise dispose of its property or assets, to
the extent not otherwise permitted under this Section 9.02, in an
aggregate amount not to exceed $100,000;
(xviii) Holdings and its Subsidiaries may simultaneously
exchange its assets for assets of a similar nature and value so long as
(x) no Default or Event of Default then
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exists or would result therefrom, (y) each such asset swap is in an
arm's length transaction and (z) all actions are taken to create or
maintain the Liens and security interests purported to be granted
under the Security Documents; and
(xix) WPIV may be liquidated, dissolved, wound up or merged
with or into Holdings.
To the extent the Required Lenders waive the provisions of this Section 9.02
with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 9.02 (other than to Holdings or a Subsidiary thereof),
such Collateral shall be sold free and clear of the Liens created by the
Security Documents, and the Administrative Agent and the Collateral Agent shall
be authorized to take any actions deemed appropriate in order to effect the
release of such Collateral from the Liens created by the Security Documents.
9.03 DIVIDENDS. Holdings will not, and will not permit any of
its Subsidiaries to, authorize, declare or pay any Dividends with respect to
Holdings or any of its Subsidiaries, except that:
(i) any Subsidiary of the Borrower may pay cash Dividends to
the Borrower or to any Subsidiary of the Borrower, PROVIDED that in the
case of any Subsidiary which is not a Wholly-Owned Subsidiary, (x) such
cash Dividends shall be paid pro rata, and (y) if a Default or an Event
of Default is in existence, no such cash Dividends shall be paid to any
Subsidiary which is not a Wholly-Owned Subsidiary without the consent
of the Required Lenders;
(ii) so long as no Default or Event of Default then exists or
would result therefrom, (x) Holdings may repurchase outstanding shares
of its common stock (or options to purchase such common stock)
following the death, disability or termination of employment of
directors, officers or employees of Holdings or any of its
Subsidiaries, provided that the aggregate amount of Dividends paid by
Holdings pursuant to this clause (ii) in any fiscal year of Holdings
shall not exceed the sum of (1) $2,000,000, (2) the cash proceeds
received by Holdings after the Effective Date from the sale of its
common stock or options to purchase such common stock in each case to
directors, officers or employees of Holdings and its Subsidiaries that
occurs in such fiscal year and (3) amounts referred to in preceding
clauses (1) and (2) that remain unused from the immediately preceding
fiscal year, and (y) the Borrower may pay Dividends to Holdings or WPIV
to enable Holdings to pay the Dividends described in clause (x) above;
(iii) the Borrower may pay Dividends to Holdings for purposes
of paying operating and administrative expenses of Holdings, so long as
Holdings is in compliance with Section 9.13(b) and so long as payment
of such expenses is made within 10 days of any such Dividend payment;
and
(iv) the Borrower may pay to Holdings the amounts to be used
by Holdings to pay regularly accruing Dividends on Qualified Preferred
Stock at the rate provided in the agreements governing such Qualified
Preferred Stock so long as (x) no Event of Default
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then exists or would result therefrom and (y) the aggregate amount
paid pursuant to this clause (iv) does not exceed the net proceeds
received by the Borrower from Holdings in connection with the
issuance thereof.
9.04 INDEBTEDNESS. Holdings will not, and will not permit any
of its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and
the other Credit Documents;
(ii) Existing Indebtedness outstanding on the Effective Date
and listed on Schedule VI, without giving effect to any subsequent
extension, renewal or refinancing thereof, provided that the aggregate
principal amount of the Indebtedness to be extended, renewed or
refinanced does not increase from that amount outstanding at the time
of any such extension, renewal or refinancing, plus any related
ordinary course fees, prepayment premiums and expenses;
(iii) Indebtedness under Interest Rate Protection Agreements
entered into with respect to other Indebtedness permitted under this
Section 9.04;
(iv) Indebtedness of the Borrower and its Subsidiaries subject
to Liens permitted under Section 9.01(viii) or evidenced by Capitalized
Lease Obligations or any extension, renewal, refinancing or replacement
thereof for the same or a lesser amount, PROVIDED that in no event
shall the sum of the aggregate principal amount of all Capitalized
Lease Obligations plus the aggregate principal amount of all
Indebtedness secured by Liens permitted by Section 9.01(viii)
(including any such extensions, renewals, refinancings or replacements
of the foregoing) exceed at any time outstanding the sum of (I)
$6,000,000 plus (II) an amount, not to exceed $4,000,000, to the extent
that such amount has been incurred under clause (xi) of this Section
9.04;
(v) intercompany Indebtedness among Holdings and its
Subsidiaries to the extent permitted by Section 9.05(ix);
(vi) Indebtedness of a Subsidiary of the Borrower acquired
pursuant to a Permitted Acquisition (or Indebtedness assumed at the
time of a Permitted Acquisition of an asset securing such Indebtedness)
or any extension, renewal, refinancing or replacement thereof for the
same or lesser amount, plus any related ordinary course fees,
prepayment premiums and expenses, PROVIDED that (x) such Indebtedness
was not incurred in connection with, or in anticipation or
contemplation of, such Permitted Acquisition, and (y) such Indebtedness
does not constitute debt for borrowed money (other than debt for
borrowed money incurred in connection with industrial revenue or
industrial development or similar bond financings), it being understood
and agreed that Capitalized Lease Obligations and purchase money
Indebtedness shall not constitute debt for borrowed money for purposes
of this clause (y);
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(vii) Contingent Obligations of the Borrower and the
Subsidiary Guarantors of each other's Indebtedness to the extent that
such Indebtedness is otherwise permitted under this Section 9.04;
(viii) Indebtedness of the Borrower and its Subsidiaries
consisting of any guarantees, indemnities or obligations in respect of
purchase price adjustments in connection with the acquisition or
disposition of assets;
(ix) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business so long as such
Indebtedness is extinguished within two Business Days of the incurrence
thereof;
(x) Indebtedness in respect of Other Hedging Agreements to the
extent permitted by Section 9.05(xii); and
(xi) additional Indebtedness incurred by Holdings and its
Subsidiaries in an aggregate principal amount not to exceed $5,000,000
at any one time outstanding, of which no more than $4,000,000 may be
outstanding at any time as additional secured Indebtedness under clause
(iv) of this Section 9.04 and with all other Indebtedness incurred
under this clause (xi) to be unsecured.
9.05 ADVANCES, INVESTMENTS AND LOANS. Holdings will not, and
will not permit any of its Subsidiaries to, directly or indirectly, lend money
or credit or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any other Person, or purchase or own a futures contract or
otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, or hold any
cash or Cash Equivalents (each of the foregoing an "Investment" and,
collectively, "Investments"), except that the following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold
accounts receivables owing to any of them, if created or acquired in
the ordinary course of business and payable or dischargeable in
accordance with customary trade terms of the Borrower or such
Subsidiary;
(ii) Holdings and its Subsidiaries may acquire and hold
cash and Cash Equivalents;
(iii) Holdings and its Subsidiaries may hold the Investments
held by them on the Effective Date and described on Schedule IX,
provided that any additional Investments made with respect thereto
shall be permitted only if independently justified under the other
provisions of this Section 9.05;
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(iv) the Borrower and its Subsidiaries may acquire and own
Investments (including, without limitation, debt obligations) received
in connection with the bankruptcy or reorganization of suppliers and
customers and in good faith settlement of delinquent obligations of,
and other disputes with, customers and suppliers arising in the
ordinary course of business;
(v) the Borrower and its Subsidiaries may (A) make loans and
advances in the ordinary course of business to their respective
officers and employees so long as the aggregate principal amount
thereof at any time outstanding (determined without regard to any
write-downs or write-offs of such loans and advances) shall not exceed
$250,000 and (B) make advances to their employees for moving,
relocation and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business so long as any such
advances made pursuant to this clause (B) are ultimately expected to be
treated as an expense which reduces Consolidated Net Income in
accordance with generally accepted accounting principles;
(vi) Holdings may acquire and hold obligations of one or more
officers or other employees of Holdings or any of its Subsidiaries in
connection with such officers' or employees' acquisition of shares of
common stock of Holdings so long as no cash is paid by Holdings or any
of its Subsidiaries to such officers or employees in connection with
the acquisition of any such obligations;
(vii) the Borrower may enter into Interest Protection
Agreements to the extent permitted by Section 9.04(iii);
(viii) (x) Holdings may make cash common equity contributions
to the capital of WPIV and the Borrower, (y) WPIV may make cash common
equity contributions to the capital of the Borrower and (z) the
Borrower and the Subsidiary Guarantors may make cash common equity
contributions to the capital of their respective Subsidiaries which are
Subsidiary Guarantors;
(ix) Holdings, WPIV, the Borrower and the Subsidiary
Guarantors may make intercompany loans and advances between or among
one another (collectively, "Intercompany Loans"), so long as no such
Intercompany Loan shall be evidenced by a promissory note or other
instrument except an Intercompany Note that is pledged to the
Collateral Agent pursuant to the Pledge Agreement;
(x) the Borrower and its Subsidiaries may acquire and hold
non-cash consideration issued by the purchaser of assets in connection
with a sale of such assets to the extent permitted by Section 9.02(iv);
(xi) Permitted Acquisitions shall be permitted in accordance
with Section 9.02(xi);
(xii) the Borrower and its Subsidiaries may enter into Other
Hedging Agreements in the ordinary course of business providing
protection against fluctuations
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in currency values in connection with the Borrower's or any of its
Subsidiaries' operations so long as management of the Borrower or
such Subsidiary, as the case may be, has determined in good faith
that the entering into of such Other Hedging Agreements are bona
fide hedging activities and are not for speculative purposes; and
(xiii) the Borrower and its Subsidiaries may make investments
(including investments in joint ventures) not otherwise permitted by
clauses (i) through (xii) of this Section 9.05 in an aggregate amount
not to exceed $5,000,000.
9.06 TRANSACTIONS WITH AFFILIATES. Holdings will not, and will
not permit any of its Subsidiaries to, enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of Holdings or any of its Subsidiaries, other than on terms and
conditions substantially as favorable to Holdings or such Subsidiary as would
reasonably be obtained by Holdings or such Subsidiary at that time in a
comparable arm's-length transaction with a Person other than an Affiliate,
except that the following in any event shall be permitted:
(i) Dividends may be paid to the extent provided in Section
9.03;
(ii) loans may be made and other transactions may be entered
into by Holdings and its Subsidiaries to the extent permitted by
Sections 9.02, 9.03, 9.04 and 9.05;
(iii) customary fees may be paid to directors of Holdings and
its Subsidiaries;
(iv) Holdings and its Subsidiaries may enter into, and may
make payments under, employment agreements, employee benefit plans,
indemnification provisions and other similar compensatory arrangements
with officers and directors of Holdings and its Subsidiaries in the
ordinary course of business; and
(v) the Borrower and the Subsidiary Guarantors may engage in
any transaction among themselves to the extent not prohibited under
this Agreement.
9.07 CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Holdings will
not permit the Consolidated Fixed Charge Coverage Ratio for any Test Period
ending on the last day of any fiscal quarter to be less than 1.25:1.00.
9.08 MAXIMUM LEVERAGE RATIO. Holdings will not permit the
Leverage Ratio for any Test Period ending on the last day of any fiscal quarter
described below to be greater than the ratio set forth opposite such fiscal
quarter below:
FISCAL QUARTER RATIO
-------------- -----
September 30, 1999 4.00:1.00
December 31, 1999 4.00:1.00
March 31, 2000 4.00:1.00
June 30, 2000 4.00:1.00
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September 30, 2000 4.00:1.00
December 31, 2000 4.00:1.00
March 31, 2001 4.00:1.00
June 30, 2001 4.00:1.00
September 30, 2001 3.75.1.00
December 31, 2001 3.75.1.00
March 31, 2002 3.75.1.00
June 30, 2002 3.75.1.00
September 30, 2002 3.50:1.00
December 31, 2002 3.50:1.00
March 31, 2003 3.50:1.00
June 30, 2003 3.50:1.00
September 30, 2003 3.25:1.00
December 31, 2003 3.25:1.00
March 31, 2004 3.25:1.00
June 30, 2004 3.25:1.00
September 30, 2004 and thereafter 3.00:1.00
9.09 CONSOLIDATED INTEREST COVERAGE RATIO. Holdings will not
permit the Consolidated Interest Coverage Ratio for any Test Period ending on
the last day of a fiscal quarter described below to be less than the amount set
forth opposite such fiscal quarter below:
FISCAL QUARTER RATIO
-------------- -----
September 30, 1999 2.25:1.00
December 31, 1999 2.25:1.00
March 31, 2000 2.25:1.00
June 30, 2000 2.25:1.00
September 30, 2000 2.25:1.00
December 31, 2000 2.25:1.00
March 31, 2001 2.25:1.00
June 30, 2001 2.25:1.00
September 30, 2001 2.50.1.00
December 31, 2001 2.50.1.00
March 31, 2002 2.50.1.00
June 30, 2002 2.50.1.00
September 30, 2002 2.75:1.00
December 31, 2002 2.75:1.00
March 31, 2003 2.75:1.00
June 30, 2003 2.75:1.00
September 30, 2003 and thereafter 3.00:1.00
9.10 MODIFICATIONS OF CERTIFICATE OF INCORPORATION, BY-LAWS
AND CERTAIN OTHER AGREEMENTS; etc. Holdings will not, and will not permit any of
its Subsidiaries to amend, modify
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or change its certificate of incorporation (including, without limitation, by
the filing or modification of any certificate of designation) or by-laws (or
the equivalent organizational documents) or any agreement entered into by it
with respect to its capital stock (including any Shareholders' Agreement), or
enter into any new agreement with respect to its capital stock, unless such
amendment, modification, change or other action contemplated by this clause
would not violate the terms of this Agreement and could not reasonably be
expected to be adverse to the interests of the Lenders in any material
respect (as determined by the Board of Directors of the Borrower in good
faith).
9.11 LIMITATION ON CERTAIN RESTRICTIONS ON SUBSIDIARIES.
Holdings and WPIV will not, and will not permit the Borrower or any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
such Subsidiary to (a) pay dividends or make any other distributions on its
capital stock or any other interest or participation in its profits owned by the
Borrower or any Subsidiary of the Borrower, or pay any Indebtedness owed to the
Borrower or any Subsidiary of the Borrower, (b) make loans or advances to the
Borrower or any Subsidiary of the Borrower or (c) transfer any of its properties
or assets to the Borrower or any Subsidiary of the Borrower, except for such
encumbrances or restrictions existing under or by reason of (i) applicable law,
(ii) this Agreement and the other Credit Documents, (iii) customary provisions
restricting subletting or assignment of any lease or sublease governing a
leasehold interest of the Borrower or any Subsidiary of the Borrower, (iv)
customary provisions restricting assignment of any licensing agreement or other
contract entered into by the Borrower or any Subsidiary of the Borrower in the
ordinary course of business, (v) restrictions on the transfer of any asset
subject to a Lien permitted by Sections 9.01(iii), (iv), (vi), (vii), (viii),
(x), (xii), (xiii) and (xiv), (vi) restrictions under any contracts for the sale
of (or the granting of an option to buy) assets, including, without limitation,
any restriction with respect to a Subsidiary imposed pursuant to an agreement
entered into for the sale or disposition of all or substantially all of the
capital stock or assets of such Subsidiary, pending the closing of such sale or
disposition, PROVIDED that any such restriction relates solely to the assets
that are the subject of such contract (or such option) and such sale (or the
granting of such option assuming same is exercised) is otherwise permitted under
Section 9.02, (vii) restrictions under any agreement or instrument of a Person
existing at the time it becomes a Subsidiary of the Borrower provided that such
restriction was not entered into in contemplation of such Person becoming a
Subsidiary and (viii) restrictions under Indebtedness permitted under Section
9.04(xi) so long as such restrictions will not, in the good faith determination
of the Board of Directors of the Borrower, impair the ability of the Borrower to
repay the Obligations.
9.12 LIMITATION ON ISSUANCE OF CAPITAL STOCK. (a) Holdings
will not, and will not permit any of its Subsidiaries to, issue (i) any
preferred stock, other than Qualified Preferred Stock issued by Holdings or (ii)
any redeemable common stock (other than common stock that is redeemable at the
sole option of Holdings or such Subsidiary).
(b) Holdings will not permit any of its Subsidiaries to issue
any capital stock (including by way of sales of treasury stock) or any options
or warrants to purchase, or securities convertible into, capital stock, except
(i) for transfers and replacements of then outstanding
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shares of capital stock, (ii) for stock splits, stock dividends and issuances
which do not decrease the percentage ownership of Holdings or any of its
Subsidiaries in any class of the capital stock of such Subsidiary, (iii) to
qualify directors to the extent required by applicable law or (iv) for
issuances by newly created or acquired Subsidiaries in accordance with the
terms of this Agreement.
9.13 BUSINESS. (a) Holdings and its Subsidiaries will not
engage in any business other than the businesses engaged in by the Borrower and
its Subsidiaries as of the Effective Date and businesses similar, reasonably
related or complementary thereto.
(b) Notwithstanding the foregoing, Holdings and WPIV will not
engage in any business and will not own any significant assets or have any
material liabilities (other than Indebtedness permitted to be incurred by it
under Section 9.04) other than its ownership of the capital stock of the
Borrower, and having those liabilities which it is responsible for under this
Agreement and the other Credit Documents to which it is a party, PROVIDED that
Holdings and WPIV may engage in those activities that are incidental to (w) the
maintenance of its corporate existence in compliance with applicable law, (x)
legal, tax and accounting matters in connection with any of the foregoing
activities, (y) the entering into, and performing its obligations under, this
Agreement and the other Credit Documents to which it is a party, other
agreements and instruments in effect on the Effective Date to which it is a
party or any amendments or other modifications thereof not otherwise prohibited
hereby so long as any such amendments or other modifications do not increase, in
any material respect, the obligations or liabilities of Holdings or WPIV or (z)
the raising of capital in the form of equity or Indebtedness.
9.14 LIMITATION ON CREATION OF SUBSIDIARIES. Notwithstanding
anything to the contrary contained in this Agreement, Holdings will not, and
will not permit any of its Subsidiaries to, establish, create or acquire after
the Effective Date any Subsidiary, PROVIDED that the Borrower and its
Subsidiaries shall be permitted to establish, create or, to the extent permitted
by this Agreement, acquire Subsidiaries so long as (i) the capital stock or
other equity interests of each such new Subsidiary is pledged (to the extent
owned) pursuant to, and to the extent required by, the Pledge Agreement and the
certificates representing such stock or other equity interests, together with
stock or other powers duly executed in blank, are delivered to the Collateral
Agent for the benefit of the Secured Creditors, (ii) each such new Subsidiary
executes and delivers to the Administrative Agent a counterpart of the
Subsidiaries Guaranty, the Pledge Agreement and the Security Agreement, and
(iii) each such new Subsidiary takes all actions required pursuant to Section
8.11. In addition, each new Subsidiary shall execute and deliver, or cause to be
executed and delivered, to the Administrative Agent all other relevant
documentation of the type described in Sections 5.03, 5.04, 5.05, 5.10, 5.11 and
5.12 as such new Subsidiary would have had to deliver if such new Subsidiary
were a Credit Party on the Effective Date.
SECTION 10. EVENTS OF DEFAULT. Upon the occurrence of any of
the following specified events (each an "Event of Default"):
10.01 PAYMENTS. The Borrower shall (i) default in the payment
when due of any principal of any Loan or any Note or (ii) default, and such
default shall continue unremedied for
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three or more Business Days, in the payment when due of any interest on any
Loan or Note, any Unpaid Drawing or any Fees or any other amounts owing
hereunder or thereunder; or
10.02 REPRESENTATIONS, ETC. Any representation, warranty or
statement made (or deemed made) by any Credit Party herein or in any other
Credit Document or in any certificate delivered to the Administrative Agent or
any Lender pursuant hereto or thereto shall prove to be untrue in any material
respect on the date as of which made or deemed made; or
10.03 COVENANTS. Any Credit Party shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8.01(g)(i), 8.08, or Section 9 or (ii) default in the due performance or
observance by it of any other term, covenant or agreement contained in this
Agreement or any other Credit Document (other than those set forth in Sections
10.01, 10.02 and 10.03(i)) and such default shall continue unremedied for a
period of 30 days after written notice thereof to the defaulting party by the
Administrative Agent or the Required Lenders; or
10.04 DEFAULT UNDER OTHER AGREEMENTS. (i) Holdings or any of
its Subsidiaries shall (x) default in any payment of any Indebtedness (other
than the Obligations) beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created or (y) default
in the observance or performance of any agreement or condition relating to any
Indebtedness (other than the Obligations) or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause (determined
without regard to whether any notice is required), any such Indebtedness to
become due prior to its stated maturity, or (ii) any Indebtedness (other than
the Obligations) of Holdings or any of its Subsidiaries shall be declared to be
(or shall become) due and payable, or required to be prepaid other than by a
regularly scheduled required prepayment (or as a result of any sale of an asset
securing such Indebtedness in accordance with the terms thereof), prior to the
stated maturity thereof, PROVIDED that it shall not be a Default or an Event of
Default under this Section 10.04 unless the aggregate principal amount of all
Indebtedness as described in preceding clauses (i) and (ii) is at least
$1,000,000; or
10.05 BANKRUPTCY, ETC. Holdings or any of its Subsidiaries
shall commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced
against Holdings or any of its Subsidiaries, and the petition is not
controverted within 10 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of
Holdings or any of its Subsidiaries, or Holdings or any of its Subsidiaries
commences any other proceeding under any reorganization, arrangement, adjustment
of debt, relief of debtors, dissolution, insolvency or liquidation or similar
law of any jurisdiction whether now or hereafter in effect relating to Holdings
or any of its Subsidiaries, or there is commenced against Holdings or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days, or Holdings or any of its Subsidiaries is adjudicated
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insolvent or bankrupt; or any order of relief or other order approving any
such case or proceeding is entered; or Holdings or any of its Subsidiaries
suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of 60 days; or Holdings or any of its Subsidiaries makes a general
assignment for the benefit of creditors; or any corporate action is taken by
Holdings or any of its Subsidiaries for the purpose of effecting any of the
foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section 412 of
the Code or Section 302 of ERISA or a waiver of such standard or extension of
any amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following 30 days, any Plan which is
subject to Title IV of ERISA shall have had or is likely to have a trustee
appointed to administer such Plan, any Plan which is subject to Title IV of
ERISA is, shall have been or is likely to be terminated or to be the subject of
termination proceedings under ERISA, any Plan shall have an Unfunded Current
Liability, a contribution required to be made with respect to a Plan has not
been timely made, Holdings or any Subsidiary of Holdings or any ERISA Affiliate
has incurred or is likely to incur any liability to or on account of a Plan
under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or
4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on account of a
group health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2)
of the Code) under Section 4980B of the Code, or Holdings or any Subsidiary of
Holdings has incurred or is likely to incur liabilities pursuant to one or more
employee welfare benefit plans (as defined in Section 3(1) of ERISA) that
provide benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or Plans; (b) there shall result from any such
event or events the imposition of a lien, the granting of a security interest,
or a liability or a material risk of incurring a liability; and (c) such lien,
security interest or liability, individually, and/or in the aggregate, in the
reasonable opinion of the Required Lenders, has had, or could reasonably be
expected to have, a material adverse effect on the business, operations, or
financial condition of Holdings and its Subsidiaries taken as a whole; or
10.07 SECURITY DOCUMENTS. At any time after the execution and
delivery thereof, any of the Security Documents shall cease to be in full force
and effect, or shall cease to give the Collateral Agent for the benefit of the
Secured Creditors the Liens, rights, powers and privileges purported to be
created thereby (including, without limitation, to the extent required thereby,
a perfected security interest in, and Lien on, all of the Collateral (other than
an immaterial portion of the Security Agreement Collateral), in favor of the
Collateral Agent, superior to and prior to the rights of all third Persons
(except as permitted by Section 9.01), and subject to no other Liens (except as
permitted by Section 9.01); or
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10.08 GUARANTIES. At any time after the execution and delivery
thereof, any Guaranty or any provision thereof shall cease to be in full force
or effect as to any Guarantor, or any Guarantor or any Person acting by or on
behalf of such Guarantor shall deny or disaffirm such Guarantor's obligations
under its Guaranty or any Guarantor shall default in the due performance or
observance of any term, covenant or agreement on its part to be performed or
observed pursuant to its Guaranty, PROVIDED that if the default constitutes a
failure to perform or comply with any provision, covenant or agreement contained
in Section 8 of this Agreement (other than Section 8.01(g)(i) or 8.08), such
default shall continue unremedied for a period of at least 30 days after notice
to the defaulting Guarantor by the Administrative Agent or the Required Lenders;
or
10.09 JUDGMENTS. One or more judgments or decrees shall be
entered against Holdings or any Subsidiary of Holdings involving in the
aggregate for Holdings and its Subsidiaries a liability (not paid or fully
covered by a reputable and solvent insurance company) and such judgments and
decrees either shall be final and non-appealable or shall not be vacated,
discharged or stayed or bonded pending appeal for any period of 30 consecutive
days, and the aggregate amount of all such judgments equals or exceeds
$1,000,000 or any order or writ of attachment or similar process shall have been
issued with respect to property of Holdings or any of its Subsidiaries with a
value of a $1,000,000 or more in the aggregate for Holdings and its
Subsidiaries; or
10.10 CHANGE OF CONTROL. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, upon the written request of
the Required Lenders, shall by written notice to the Borrower, take any or all
of the following actions, without prejudice to the rights of any Administrative
Agent, any Lender or the holder of any Note to enforce its claims against any
Credit Party (PROVIDED, that, if an Event of Default specified in Section 10.05
shall occur with respect to the Borrower, the result which would occur upon the
giving of written notice by the Administrative Agent as specified in clauses (i)
and (ii) below shall occur automatically without the giving of any such notice):
(i) declare the Total Revolving Loan Commitment terminated, whereupon the
Revolving Loan Commitment of each Lender shall forthwith terminate immediately
and any Commitment Commission shall forthwith become due and payable without any
other notice of any kind; (ii) declare the principal of and any accrued interest
in respect of all Loans and the Notes and all Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each Credit Party; (iii) terminate any Letter of Credit
which may be terminated in accordance with its terms; (iv) direct the Borrower
to pay (and the Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in Section 10.05 with respect to the
Borrower, it will pay) to the Collateral Agent at the Payment Office such
additional amount of cash or Cash Equivalents, to be held as security by the
Collateral Agent, as is equal to the aggregate Stated Amount of all Letters of
Credit issued for the account of the Borrower and then outstanding; (v) enforce,
as Collateral Agent, all of the Liens and security interests created pursuant to
the
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Security Documents; and (vi) apply any cash collateral held by the
Administrative Agent pursuant to Section 4.02 to the repayment of the
Obligations.
SECTION 11. DEFINITIONS AND ACCOUNTING TERMS.
11.01 DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Administrative Agent" shall mean BTCo, in its capacity as
Administrative Agent for the Lenders hereunder, and shall include any successor
to the Administrative Agent appointed pursuant to Section 12.09.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling (including, but not limited to, all
directors and officers of such Person), controlled by, or under direct or
indirect common control with, such Person. A Person shall be deemed to control
another Person if such Person possesses, directly or indirectly, the power (i)
to vote 5% or more of the securities having ordinary voting power for the
election of directors of such corporation or (ii) to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented, amended, restated (including any amendment and restatement
hereof), extended, renewed, refinanced or replaced from time to time.
"Applicable Margin" initially shall mean a percentage per
annum equal to, in the case of (i) Base Rate Loans, 1.25%, (ii) Eurodollar
Loans, 2.25% and (iii) the Commitment Commission with respect to Revolving Loan
Commitments, .50%. From and after each day of delivery of any certificate
delivered in accordance with the first sentence of the following paragraph
indicating a different margin than that described in the immediately preceding
sentence (each, a "Start Date") to and including the applicable End Date
described below, the Applicable Margin shall (subject to any adjustment pursuant
to the immediately succeeding paragraph) be that set forth below opposite the
Leverage Ratio indicated to have been achieved in any certificate delivered in
accordance with the following sentence:
APPLICABLE MARGIN APPLICABLE MARGIN APPLICABLE MARGIN
LEVERAGE RATIO EURODOLLAR LOANS BASE RATE LOANS REVOLVING LOAN COMMITMENT
- ----------------------------- ---------------------- ----------------------- ----------------------------
greater than
3.50:1.00 2.25 % 1.25 % .50%
- ----------------------------- ---------------------- ----------------------- ----------------------------
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greater than
3.00:1.00 but 2.00 % 1.00 % .375%
less than or
equal to
3.50:1.00
- ----------------------------- ---------------------- ----------------------- ----------------------------
greater than or
equal to 1.75 % 0.75 % .375%
2.50:1.00 but
less than or
equal to
3.00:1.00
- ----------------------------- ---------------------- ----------------------- ----------------------------
less than 1.50 % 0.50 % .375%
2.50:1.00
- ----------------------------- ---------------------- ----------------------- ----------------------------
The Leverage Ratio shall be determined based on the delivery
of a certificate of Holdings by a senior financial officer of Holdings to the
Administrative Agent and the Lenders, within 45 days of the last day of any
fiscal quarter of Holdings, which certificate shall set forth the calculation of
the Leverage Ratio as at the last day of the Test Period ended immediately prior
to the relevant Start Date (but determined on a Pro Forma Basis to give effect
to any Permitted Acquisition effected on or prior to the date of the delivery of
such certificate) and the Applicable Margins which shall be thereafter
applicable (until same are changed or cease to apply in accordance with the
following sentences); PROVIDED that at the time of the consummation of any
Permitted Acquisition, a senior financial officer of Holdings shall deliver to
the Administrative Agent a certificate setting forth the calculation of the
Leverage Ratio on a PRO FORMA Basis as of the last day of the last Test Period
ended prior to the date on which such Permitted Acquisition is consummated for
which financial statements have been made available (or were required to be made
available) pursuant to Section 8.01(b) or (c), as the case may be, and the date
of such consummation shall be deemed to be a Start Date and the Applicable
Margins which shall be thereafter applicable (until same are changed or cease to
apply in accordance with the following sentence) shall be based upon the
Leverage Ratio as so calculated. The Applicable Margins so determined shall
apply, except as set forth in the succeeding sentence, from the relevant Start
Date to the earliest of (x) the date on which the next certificate is delivered
to the Administrative Agent, (y) the date on which the next Permitted
Acquisition is consummated or (z) the date which is 45 days following the last
day of the Test Period in which the previous Start Date occurred (such earliest
date, the "End Date"), at which time, if no certificate has been delivered to
the Administrative Agent indicating an entitlement to new Applicable Margins
(and thus commencing a new Start Date), the Applicable Margins shall be those
set forth in the table above determined as if the Leverage Ratio were greater
than 3.50:1.00 (such Applicable Margins as so determined, the "Highest
Applicable Margins"). Notwithstanding anything to the contrary contained above
in this definition, (x) the Applicable Margins shall be the Highest Applicable
Margins (subject to further adjustment to the extent provided in Section
1.08(c)) at all times during which there shall exist any Default or Event of
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Default and (y) prior to the date of delivery of the financial statements
pursuant to Section 8.01(b) for the fiscal quarter ended March 31, 2000, in no
event shall the Applicable Margins be less than those described in the first
sentence of this definition.
"Asset Sale" shall mean any sale, transfer or other
disposition by Holdings or any of its Subsidiaries to any Person (including
by-way-of redemption by such Person) other than to Holdings or a Wholly-Owned
Subsidiary of Holdings of any asset (including, without limitation, any capital
stock or other securities of, or equity interests in, another Person) other than
sales of assets pursuant to Sections 9.02 (ii), (iii), (vii), (viii), (ix), (x),
(xii), (xiii), (xiv) and (xv).
"Assignment and Assumption Agreement" shall mean an Assignment
and Assumption Agreement substantially in the form of Exhibit K (appropriately
completed).
"Authorized Officer" of any Credit Party shall mean its chief
executive officer, chief financial officer or any other officer thereof
designated in writing to the Administrative Agent by any then existing
Authorized Officer.
"Bank of America" shall mean Bank of America, N.A., in its
individual capacity, and any successor corporation thereto by merger,
consolidation or otherwise.
"Bankruptcy Code" shall have the meaning provided in
Section 10.05.
"Base Rate" shall mean, at any time, the higher of (i)
the Prime Lending Rate and (ii) 1/2 of 1% in excess of the Federal Funds
Rate.
"Base Rate Loan" shall mean (i) each Swingline Loan and (ii)
each Revolving Loan designated or deemed designated as such by the Borrower at
the time of the incurrence thereof or conversion thereto.
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrowing" shall mean (i) the borrowing of Swingline Loans
from the Swingline Lender on a given day and (ii) the borrowing of one Type of
Revolving Loan from all the Lenders on a given date (or resulting from a
conversion or conversions on such date) having in the case of Eurodollar Loans
the same Interest Period, PROVIDED that Base Rate Loans incurred pursuant to
Section 1.10(b) shall be considered part of the related Borrowing of Eurodollar
Loans.
"BTCo" shall mean Bankers Trust Company, in its individual
capacity, and any successor corporation thereto by merger, consolidation or
otherwise.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day which
shall be in New York City, New York, a legal holiday or a day on which banking
institutions are authorized or required by law or other government action to
close and (ii) with respect to all notices and determinations in con-
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nection with, and payments of principal and interest on, Eurodollar Loans,
any day which is a Business Day described in clause (i) above and which is
also a day for trading by and between banks in the New York interbank
Eurodollar market.
"Capital Expenditures" shall mean, with respect to any Person,
all expenditures by such Person which should be capitalized in accordance with
generally accepted accounting principles and, without duplication, the amount of
Capitalized Lease Obligations incurred by such Person.
"Capitalized Lease Obligations" shall mean, with respect to
any Person, all rental obligations of such Person which, under generally
accepted accounting principles, are or will be required to be capitalized on the
books of such Person, in each case taken at the amount thereof accounted for as
indebtedness in accordance with such principles.
"Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (PROVIDED that the full faith
and credit of the United States is pledged in support thereof) having maturities
of not more than one year from the date of acquisition, (ii) marketable direct
obligations issued by any state of the United States or any political
subdivision of any such state or any public instrumentality thereof maturing
within one year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either
Standard & Poor's Ratings Services ("S&P") or Moody's Investors Service,
Inc.("Moody's"), (iii) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a rating of at
least A-1 from S&P or at least P-1 from Moody's, (iv) certificates of deposit,
Eurodollar deposits or bankers' acceptance maturing within one year from the
date of acquisition thereof issued by any bank organized under the laws of the
United States or any state thereof or the District of Columbia or any U.S.
branch of a foreign bank or any foreign branch of a U.S. bank, in each case
having at the date of acquisition thereof combined capital and surplus of not
less than $250,000,000, (v) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clause (i) above
entered into with any bank meeting the qualifications specified in clause (iv)
above and (vi) investments in money market funds with assets at least equal to
$500,000,000.
"CERCLA" shall mean the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as the same may be
amended from time to time, 42 U.S.C. Section 9601 ET seq.
"Change of Control" shall mean any of the following events:
(a)(i) any "person" or "group" (within the meaning of Section 13(d) or
14(d) of the Securities Act) (other than one or more of the Initial
Shareholders) has become, directly or indirectly, the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Securities Act, except that a Person
shall be deemed to have "beneficial ownership" of all shares that any such
Person has the right to acquire, whether such right is exercisable immediately
or only after the passage of time), by way of merger, consolidation or
otherwise, of 35% or more of the voting power of the Voting Stock of Holdings on
a fully-diluted basis, after giving effect to the
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conversion and exercise of all outstanding warrants, options and other
securities of the Borrower convertible into or exercisable for Voting Stock
of the Borrower (whether or not such securities are then currently
convertible or exercisable), and (ii) such Person or group is or becomes,
directly or indirectly, the beneficial owner of a greater percentage of the
voting power of the Voting Stock of the Borrower calculated on such
fully-diluted basis, than the percentage beneficially owned by the Initial
Shareholders; or
(b) during any period of two consecutive calendar years, individuals
who at the beginning of such period constituted either the board or the board of
directors of Holdings together with any new members of such board or board of
directors (i) whose elections by such board or board of directors or whose
nomination for election by the stockholders of Holdings was approved by a vote
of a majority of the members of such board or board of directors than still in
office who either were directors at the beginning of such period or whose
election or nomination for election was previously so approved or (ii) elected
by the Initial Shareholders, cease for any reasons to constitute a majority of
the directors of Holdings then in office; or
(iii) Holdings shall cease to own directly or indirectly 100% of the
economic and voting interests in the Borrower's capital stock.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the date of this
Agreement and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real or
personal) with respect to which any security interests have been granted (or
purported to be granted) pursuant to any Security Document, including, without
limitation, all Pledge Agreement Collateral, all Security Agreement Collateral,
the Mortgaged Properties and all cash and Cash Equivalents delivered as
collateral pursuant to Section 4.02 or 10.
"Collateral Agent" shall mean the Administrative Agent acting
as collateral agent for the Secured Creditors pursuant to the Security
Documents.
"Collective Bargaining Agreements" shall have the meaning
provided in Section 5.05.
"Commitment Commission" shall have the meaning set forth in
Section 3.01.
"Company" shall mean any corporation, limited liability
company, partnership or other business entity (or the adjectival form thereof,
where appropriate).
"Consolidated EBIT" shall mean, for any period, Consolidated
Net Income for such period before consolidated interest expense of Holdings and
its Subsidiaries and provision for taxes for such period.
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"Consolidated EBITDA" shall mean, for any period, Consolidated
EBIT for such period, adjusted by (x) adding thereto (i) the amount of all
amortization, depreciation and other non-cash expenses or non-cash charges that
were deducted in arriving at Consolidated EBIT for such period (including
amortization of goodwill, amortization of plant costs, amortization of
intangible assets, the non-cash costs of agreements evidencing Interest Rate
Protection Agreements, Other Hedging Agreements, license agreements and
non-competition agreements, and the non-cash amortization of Capitalized Lease
Obligations, management fees and organization costs), and (ii) unrealized
non-cash gains and losses from hedging, foreign currency or commodities
translations and transactions that were deducted in arriving at Consolidated
EBIT for such period and (y) subtracting therefrom any cash expenses, cash
charges or cash payments arising from any non-cash expenses, non-cash charges or
unrealized non-cash gains or losses that were deducted in arriving at
Consolidated EBIT in a previous period.
"Consolidated Fixed Charge Coverage Ratio" shall mean, for any
period, the ratio of (x) the remainder of (I) Consolidated EBITDA for such
period minus (II) the amount of all Capital Expenditures made by Holdings and
its Subsidiaries for such period (other than Capital Expenditures (i) financed
with Asset Sale proceeds, equity proceeds, insurance proceeds or Indebtedness
(excluding any Loans) and (ii) constituting Permitted Acquisitions) to (y) the
sum of (I) Consolidated Interest Expense for such period, plus (II) Capital
Expenditures made during such period, (III) cash dividends on Qualified
Preferred Stock made during such period and (IV) scheduled repayments of Loans
to the extent such scheduled repayments are accompanied by a permanent reduction
of the Total Revolving Loan Commitment.
"Consolidated Indebtedness" shall mean, at any time, the
principal amount of all Indebtedness of Holdings and its Subsidiaries at such
time as determined on a consolidated basis.
"Consolidated Interest Coverage Ratio" shall mean, for any
period, the ratio of (i) Consolidated EBITDA for such period to (ii)
Consolidated Interest Expense for such period.
"Consolidated Interest Expense" shall mean, for any period,
the sum of (i) the total consolidated interest expense of Holdings and its
Subsidiaries for such period (calculated without regard to any limitations on
the payment thereof) plus, without duplication, that portion of Capitalized
Lease Obligations of Holdings and its Subsidiaries representing the interest
factor for such period plus (ii) the product of (A) the amount of all cash
dividend payments made on any class of preferred stock during such period and
(B) a fraction, the numerator of which is one and the denominator of which is
one minus the current effective consolidated federal, state and local income tax
rate of Holdings expressed as a decimal, PROVIDED that (x) the amortization or
write-off of debt issuance costs, commissions, fees and expenses and (y) the
amortization of original issue discount shall (in each case) be excluded from
Consolidated Interest Expense to the extent same would otherwise have been
included therein.
"Consolidated Net Income" shall mean, for any period, the net
income (or loss) of Holdings and its Subsidiaries for such period, determined on
a consolidated basis (after any deduction for minority interests), PROVIDED that
in determining Consolidated Net Income, (i) the net income of any other Person
which is not a Subsidiary of Holdings or is accounted for by
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Holdings by the equity method of accounting shall be included only to the
extent of the payment of cash dividends or distributions by such other Person
to Holdings or a Subsidiary thereof during such period, (ii) the net income
(or loss) of any other Person acquired by such specified Person or a
Subsidiary of such Person in a pooling of interests transaction for any
period prior to the date of such acquisition shall be excluded, (iii) gains
or losses from Asset Sales or other sales of assets (in each case) outside
the ordinary course of business or abandonment or reserves relating thereto
shall be excluded, (iv) items classified as extraordinary gains or
extraordinary losses shall be excluded and (v) the net income of any
Subsidiary of the Borrower shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that
Subsidiary of its income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument or law applicable to such
Subsidiary; PROVIDED, HOWEVER, that Consolidated Net Income shall be deemed
to include any increase during such period to consolidated shareholder's
equity of Holdings attributable to tax benefits from net operating losses and
the exercise of stock options that are not otherwise included in Consolidated
Net Income for such period.
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person as a result of such Person being a general partner of
the other Person, unless the underlying obligation is expressly made
non-recourse as to such general partner, and any obligation of such Person
guaranteeing or intended to guarantee any Indebtedness, leases, dividends or
other obligations ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (x) for the purchase
or payment of any such primary obligation or (y) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the holder of such
primary obligation against loss in respect thereof; PROVIDED, HOWEVER, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Note, the Subsidiaries Guaranty and each Security Document.
"Credit Event" shall mean (i) the occurrence of the Effective
Date and (ii) the making of any Loan or the issuance of any Letter of Credit.
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"Credit Party" shall mean the Parent Guarantors, the Borrower
and each Subsidiary Guarantor.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to
which a Lender Default is in effect.
"Dividend" shall mean, with respect to any Person, that such
Person has declared or paid a dividend or returned any equity capital to its
stockholders or other equity holders or authorized or made any other
distribution, payment or delivery of property (other than common stock of such
Person) or cash to its stockholders or other equity holders in their capacity as
stockholders or as other equity holders, or redeemed, retired, purchased or
otherwise acquired, directly or indirectly, for a consideration any shares of
any class of its capital stock or any other equity interests outstanding on or
after the Effective Date (or any options or warrants issued by such Person with
respect to its capital stock or other equity interests), or set aside any funds
for any of the foregoing purposes, or shall have permitted any of its
Subsidiaries to purchase or otherwise acquire for a consideration any shares of
any class of the capital stock or any other equity interests of such Person
outstanding on or after the Effective Date (or any options or warrants issued by
such Person with respect to its capital stock or other equity interests).
Without limiting the foregoing, "Dividends" with respect to any Person shall
also include all cash payments made or required to be made by such Person with
respect to any stock appreciation rights, plans, equity incentive or achievement
plans or any similar plans or setting aside of any funds for the foregoing
purposes.
"Documentation Agent" shall have the meaning provided in the
first paragraph of this Agreement.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"Drawing" shall have the meaning provided in Section 2.05(b).
"Effective Date" shall have the meaning provided in Section
13.10.
"Eligible Transferee" shall mean and include a commercial
bank, financial institution, any fund that invests in loans or any other
institutional "accredited investor" (as defined in Regulation D of the
Securities Act).
"Employment Agreements" shall have the meaning provided in
Section 5.05.
"End Date" shall have the meaning provided in the definition
of Applicable Margin.
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"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment due
to the presence of Hazardous Materials.
"Environmental Law" shall mean any Federal, state, foreign
or local statute, law, rule, regulation, ordinance, code, guideline, written
policy and rule of common law now or hereafter in effect and in each case as
amended, and any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent decree or judgment, relating to
the environment, employee health and safety or Hazardous Materials,
including, without limitation, CERCLA; RCRA; the Federal Water Pollution
Control Act, 33 U.S.C. Section 1251 ET SEQ.; the Toxic Substances Control
Act, 15 U.S.C. Section 2601 ET SEQ.; the Clean Air Act, 42 U.S.C. Section
7401 ET SEQ.; the Safe Drinking Water Act, 42 U.S.C. Section 3803 ET SEQ.;
the Oil Pollution Act of 1990, 33 U.S.C. Section 2701 ET SEQ.; the Emergency
Planning and the Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001
ET SEQ.; the Hazardous Material Transportation Act, 49 U.S.C. Section 1801 ET
SEQ. and the Occupational Safety and Health Act, 29 U.S.C. Section 651 ET
SEQ.; and any state and local or foreign counterparts or equivalents, in each
case as amended from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with Holdings or a Subsidiary of Holdings
would be deemed to be a "single employer" (i) within the meaning of Section
414(b), (c), (m) or (o) of the Code or (ii) as a result of Holdings or a
Subsidiary of Holdings being or having been a general partner of such person.
"Eurodollar Loan" shall mean each Revolving Loan designated as
such by the Borrower at the time of the incurrence thereof or conversion
thereto.
"Eurodollar Rate" shall mean (a) the offered quotation to
first-class banks in the New York interbank Eurodollar market by BTCo for Dollar
deposits of amounts in immediately available funds comparable to the outstanding
principal amount of the Eurodollar Loan of BTCo with maturities comparable to
the Interest Period applicable to such Eurodollar Loan commencing two Business
Days thereafter as of 11:00 A.M. (New York time) on the date which is two
Business Days prior to the commencement of such Interest Period, divided (and
rounded upward to the nearest 1/100 of 1%) by (b) a percentage equal to 100%
minus the then stated
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maximum rate of all reserve requirements (including, without limitation, any
marginal, emergency, supplemental, special or other reserves required by
applicable law) applicable to any member bank of the Federal Reserve System
in respect of Eurocurrency funding or liabilities as defined in Regulation D
(or any successor category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in
Section 10.
"Existing Indebtedness" shall have the meaning provided in
Section 7.21.
"Existing Indebtedness Agreements" shall have the meaning
provided in Section 5.05.
"Facing Fee" shall have the meaning provided in Section
3.01(c).
"Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred
to in Section 3.01.
"Final Maturity Date" shall mean September 24, 2006.
"Guaranteed Creditors" shall mean and include each of the
Administrative Agent, the Documentation Agent, the Collateral Agent, the Issuing
Lender, the Lenders and each party (other than any Credit Party) party to an
Interest Rate Protection Agreement or Other Hedging Agreement to the extent such
party constitutes a Secured Creditor under the Security Documents.
"Guaranteed Obligations" shall mean (i) the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of the principal and interest on each Note issued by, and Loans made to, the
Borrower under this Agreement and all reimbursement obligations and Unpaid
Drawings with respect to Letters of Credit, together with all the other
obligations (including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due) and liabilities
(including, without limitation, indemnities, fees and interest thereon) of the
Borrower to the Lenders, the Administrative Agent, the Issuing Lender and the
Collateral Agent now existing or hereafter incurred under, arising out of or in
connection with this Agreement or any other Credit Document and the due
performance and compliance by the Borrower with all the terms, conditions and
agreements contained in the Credit Documents and (ii) the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of all obligations (including obligations which, but for the automatic stay
under Section 362(a) of the Bankruptcy Code, would become due) of the Borrower
owing under any Interest Rate Protection Agreement or Other Hedging Agreement
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entered into by the Borrower with any Lender or any affiliate thereof (even if
such Lender subsequently ceases to be a Lender under this Agreement for any
reason) so long as such Lender or affiliate participates in such Interest Rate
Protection Agreement or Other Hedging Agreement, and their subsequent assigns,
if any, whether now in existence or hereafter arising, and the due performance
and compliance with all terms, conditions and agreements contained therein, but
not if such beneficiary (or representative thereof) of such Guaranteed
Obligations in writing expressly agrees that such Interest Rate Protection
Agreement or Other Hedging Agreement shall not be a Guaranteed Obligation.
"Guarantor" shall mean the Parent Guarantors and each
Subsidiary Guarantor.
"Guaranty" shall mean the Parent Guaranty and the Subsidiaries
Guaranty.
"Hazardous Materials" shall mean (a) any petroleum or
petroleum products, radioactive materials, asbestos in any form that is friable,
urea formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls, and radon gas;
(b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances," "hazardous waste," "hazardous materials,"
"extremely hazardous substances," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contaminants," or "pollutants," or words of
similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, the Release of which is prohibited, limited or
regulated by any governmental authority.
"Highest Applicable Margin" shall have the meaning provided in
the definition of Applicable Margin.
"Holdings" shall have the meaning provided in the first
paragraph of this Agreement.
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money or for the deferred purchase price of
property or services, (ii) the maximum amount available to be drawn under all
letters of credit issued for the account of such Person and all unpaid drawings
in respect of such letters of credit, (iii) all Indebtedness of the types
described in clause (i), (ii), (iv), (v), (vi) or (vii) of this definition
secured by any Lien on any property owned by such Person, whether or not such
Indebtedness has been assumed by such Person (PROVIDED, that, if the Person has
not assumed or otherwise become liable in respect of such Indebtedness, such
Indebtedness shall be deemed to be in an amount equal to the fair market value
of the property to which such Lien relates as determined in good faith by such
Person), (iv) the aggregate amount required to be capitalized under leases under
which such Person is the lessee, (v) all obligations of such person to pay a
specified purchase price for goods or services, whether or not delivered or
accepted, I.E., take-or-pay and similar obligations, (vi) all Contingent
Obligations of such Person and (vii) all obligations under any Interest Rate
Protection Agreement, any Other Hedging Agreement or under any similar type of
agreement. Notwithstanding the foregoing, Indebtedness shall not include trade
payables (including obligations to refund advances) and
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accrued expenses incurred by any Person in accordance with customary
practices and in the ordinary course of business of such Person.
"Initial Shareholders" shall mean the persons listed on
Schedule XII.
"Intercompany Loan" shall have the meaning provided in Section
9.05(ix).
"Intercompany Note" shall mean a promissory note, in the form
of Exhibit L, evidencing Intercompany Loans.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan. "Interest Period" shall have
the meaning provided in Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest
rate swap agreement, interest rate cap agreement, interest collar agreement,
interest rate hedging agreement or other similar agreement or arrangement.
"Investments" shall have the meaning provided in Section 9.05.
"Issuing Lender" shall mean BTCo.
"L/C Supportable Obligations" shall mean obligations of the
Borrower or any of its Subsidiaries permitted to exist pursuant to the terms of
this Agreement.
"Leaseholds" of any Person shall mean all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Lender" shall mean each financial institution listed on
Schedule I, as well as any Person which becomes a "Lender" hereunder pursuant to
Section 1.13 or 13.04(b).
"Lender Default" shall mean (i) the refusal (which has not
been retracted) or the failure of a Lender to make available its portion of any
Borrowing (including any Mandatory Borrowing) or to fund its portion of any
unreimbursed payment under Section 2.04(c) or (ii) a Lender having notified in
writing the Borrower and/or the Administrative Agent that such Lender does not
intend to comply with its obligations under Section 1.01(a), 1.01(c) or 2.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the
sum of (i) the aggregate Stated Amount of all outstanding Letters of Credit and
(ii) the amount of all Unpaid Drawings.
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"Letter of Credit Request" shall have the meaning provided in
Section 2.03(a).
"Leverage Ratio" shall mean, at any time, the ratio of
Consolidated Indebtedness (excluding forward foreign currency contracts of
Master Data Center) at such time to Consolidated EBITDA for the Test Period then
most recently ended.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall mean each Revolving Loan and each Swingline Loan.
"Management Agreements" shall have the meaning provided in
Section 5.05.
"Mandatory Borrowing" shall have the meaning provided in
Section 1.01(c).
"Margin Stock" shall have the meaning provided in Regulation
U.
"Master Data Center" shall mean Master Data Center, Inc., a
Michigan corporation.
"Maximum Swingline Amount" shall mean $5,000,000.
"Minimum Borrowing Amount" shall mean (i) for Revolving Loans,
$1,000,000 and (ii) for Swingline Loans, $50,000.
"Moody's" shall have the meaning provided in the definition of
"Cash Equivalents".
"Mortgage" shall have the meaning provided in Section 8.11.
"Mortgaged Property" shall have the meaning provided in
Section 8.11.
"Net Debt Proceeds" shall mean, with respect to any incurrence
of Indebtedness for borrowed money, the cash proceeds (net of underwriting
discounts and commissions and other reasonable costs associated therewith)
received by the respective Person from the respective incurrence of such
Indebtedness for borrowed money.
"Net Insurance Proceeds" shall mean, with respect to any
Recovery Event, the cash proceeds (net of reasonable costs and taxes incurred in
connection with such Recovery Event) received by the respective Person in
connection with the respective Recovery Event.
"Net Sale Proceeds" shall mean, for any Asset Sale, the gross
cash proceeds (including any cash received by way of deferred payment pursuant
to a promissory note,
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receivable or otherwise, but only as and when received) received from such
sale of assets, net of the costs of such sale (including fees and
commissions, payments of unassumed liabilities relating to the assets sold
and required payments of any Indebtedness (other than Indebtedness secured
pursuant to the Security Documents) which is secured by the respective assets
which were sold), and the incremental taxes paid or payable as a result of
such Asset Sale and any reasonable reserves established in connection
therewith as determined in good faith by the Borrower.
"Non-Compete Agreements" shall have the meaning provided in
Section 5.05.
"Non-Defaulting Lender" shall mean and include each Lender
other than a Defaulting Lender.
"Note" shall mean each Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03(a).
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative
Agent located at 130 Liberty Street, New York, New York 10006, or such other
office as the Administrative Agent may hereafter designate in writing as such to
the other parties hereto.
"Obligations" shall mean all amounts owing to the
Administrative Agent, the Collateral Agent, the Issuing Lender or any Lender
pursuant to the terms of this Agreement or any other Credit Document.
"Other Hedging Agreement" shall mean any foreign exchange
contracts, currency swap agreements, commodity agreements or other similar
agreements or arrangements designed to protect against the fluctuations in
currency values.
"Parent Guarantor" shall have the meaning provided in the
first paragraph of this Agreement.
"Parent Guaranty" shall mean the guaranty of each of Holdings
and WPIV pursuant to Section 14.
"Participant" shall have the meaning provided in Section
2.04(a).
"Payment Office" shall mean the office of the Administrative
Agent located at 130 Liberty Street, New York, New York 10006, or such other
office as the Administrative Agent may hereafter designate in writing as such to
the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisition" shall have the meaning provided in
Section 9.02(xi).
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"Permitted Encumbrance" shall mean, with respect to any
Mortgaged Property, such exceptions to title as are set forth in the mortgage
policy delivered with respect thereto, all of which exceptions must be
reasonably acceptable to the Administrative Agent in its reasonable discretion.
"Permitted Liens" shall have the meaning provided in Section
9.01.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, association, limited liability company, trust or
other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2)
of ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) Holdings or a Subsidiary of Holdings or an ERISA
Affiliate, and each such plan for the five year period immediately following the
latest date on which the Holdings, or a Subsidiary of Holdings or an ERISA
Affiliate maintained, contributed to or had an obligation to contribute to such
plan.
"Pledge Agreement" shall have the meaning provided in Section
5.10.
"Pledge Agreement Collateral" shall mean all "Collateral" as
defined in the Pledge Agreement.
"Pledged Securities" shall mean all "Pledged Securities" as
defined in the Pledge Agreement.
"Prime Lending Rate" shall mean the rate which BTCo announces
from time to time as its prime lending rate, the Prime Lending Rate to change
when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. BTCo may make commercial loans or other loans
at rates of interest at, above or below the Prime Lending Rate.
"Projections" shall mean the projections prepared by the
Borrower in connection with the entering into of the Credit Documents, dated on
or about August 2, 1999 and furnished to the Lenders prior to the Effective
Date.
"Qualified Preferred Stock" means any preferred stock of
Holdings, so long as (i) the express terms that are applicable thereto shall
provide that dividends thereon shall not be required to be paid at any time (and
to the extent) that such payment would be prohibited by the terms of this
Agreement or any other agreement of Holdings relating to outstanding
Indebtedness and (ii) such preferred stock, by the terms applicable thereto
(including the terms of any security into which it is convertible or for which
it is exchangeable) or upon the happening of any event, cannot mature and is not
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable, or required to be repurchased, at the sole option of the holder
thereof (including, without limitation, upon the occurrence of any Default or
Event of Default under Section 10.10), in whole or in part, on or prior to the
date occurring September 24, 2007; PROVIDED that any preferred stock that would
not constitute Qualified Preferred Stock as provided
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above solely because the holders thereof have the right to require Holdings
to repurchase such preferred stock upon the occurrence of a "change of
control" or an "asset sale" shall constitute Qualified Preferred Stock if the
terms applicable thereto provide that Holdings may not repurchase or redeem
any such preferred stock pursuant to the documentation governing same unless
such repurchase or redemption complies with the requirements of Section 9.03.
"Quarterly Payment Date" shall mean the last Business Day of
each October, January, April and July occurring after the Effective Date.
"RCRA" shall mean the Resource Conservation and Recovery Act,
as the same may be amended from time to time, 42 U.S.C.Section 6901 ET SEQ.
"Real Property" of any Person shall mean all the right, title
and interest of such Person in and to land, improvements and fixtures, including
Leaseholds (but only to the extent that (x) each such Leasehold has an annual
lease payment in excess of $1,000,000 and (y) the Required Lenders determine in
good faith that such Leasehold is material).
"Recovery Event" shall mean the receipt by Holdings or any of
its Subsidiaries of any cash insurance proceeds or condemnation awards payable
(i) by reason of theft, loss, physical destruction, damage, taking or any other
similar event with respect to any property or assets of Holdings or any of its
Subsidiaries and (ii) under any policy of insurance required to be maintained
under Section 8.03.
"Register" shall have the meaning provided in Section 13.15.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Release" shall mean the disposing, discharging, injecting,
spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying,
pouring or migrating, into or upon any land or water or air, or otherwise
entering into the environment.
"Replaced Lender" shall have the meaning provided in Section
1.13.
"Replacement Assets" shall have the meaning provided in
Section 3.03(c).
"Replacement Lender" shall have the meaning provided in
Section 1.13.
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"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA
other than those events as to which the 30-day notice period is waived under
subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
"Required Lenders" shall mean Non-Defaulting Lenders the sum
of whose Revolving Loan Commitments (or after the termination thereof,
outstanding Revolving Loans and RL Percentages of outstanding Swingline Loans
and Letter of Credit Outstandings) represent an amount greater than 50% of the
sum of the Total Revolving Loan Commitment less the Revolving Loan Commitments
of all Defaulting Lenders (or after the termination thereof, the sum of the then
total outstanding Revolving Loans of Non-Defaulting Lenders and the aggregate RL
Percentages of all Non-Defaulting Lenders of the total outstanding Swingline
Loans and Letter of Credit Outstandings Swingline Loans at such time).
"Revolving Loan" shall have the meaning provided in Section
1.01(a).
"Revolving Loan Commitment" shall mean, for each Lender, the
amount set forth opposite such Lender's name in Schedule I directly below the
column entitled "Revolving Loan Commitment," as same may be (x) reduced from
time to time pursuant to Sections 3.02, 3.03 and/or 10 or (y) adjusted from time
to time as a result of assignments to or from such Lender pursuant to Section
1.13 or 13.04(b).
"Revolving Note" shall have the meaning provided in Section
1.05(a).
"RL Percentage" of any Lender at any time shall mean a
fraction (expressed as a percentage) the numerator of which is the Revolving
Loan Commitment of such Lender at such time and the denominator of which is the
Total Revolving Loan Commitment at such time, PROVIDED that if the RL Percentage
of any Lender is to be determined after the Total Revolving Loan Commitment has
been terminated, then the RL Percentages of the Lenders shall be determined
immediately prior (and without giving effect) to such termination.
"S&P" shall have the meaning provided in the definition of
"Cash Equivalents".
"SEC" shall have the meaning provided in Section 8.01(h).
"Section 4.04(b)(ii) Certificate" shall have the meaning
provided in Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning assigned that term
in the respective Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Securities Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
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"Security Agreement" shall have the meaning provided in
Section 5.11.
"Security Agreement Collateral" shall mean all
"Collateral" as defined in the Security Agreement.
"Security Document" shall mean and include each of the
Security Agreement, the Pledge Agreement and, after the execution and delivery
thereof, each Mortgage.
"Shareholders' Agreements" shall have the meaning provided
in Section 5.05.
"Solvency Certificate" shall have the meaning provided in
Section 5.14.
"Standby Letter of Credit" shall have the meaning provided
in Section 2.01(a).
"Start Date" shall have the meaning provided in the
definition of Applicable Margin.
"Stated Amount" of each Letter of Credit shall mean, at any
time, the maximum amount available to be drawn thereunder (in each case
determined without regard to whether any conditions to drawing could then be
met).
"Subsidiaries Guaranty" shall have the meaning provided in
Section 5.12.
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at
the time.
"Subsidiary Guarantor" shall mean each Subsidiary of the
Borrower.
"Swingline Lender" shall mean BTCo.
"Swingline Expiry Date" shall mean that date which is five
Business Days prior to the Final Maturity Date.
"Swingline Loan" shall have the meaning provided in Section
1.01(b).
"Swingline Note" shall have the meaning provided in Section
1.05(a).
"Tax Benefit" shall have the meaning provided in Section
4.04(c).
"Tax Sharing Agreements" shall have the meaning provided in
Section 5.05.
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"Taxes" shall have the meaning provided in Section 4.04(a).
"Test Period" shall mean the four consecutive fiscal quarters
of Holdings then last ended (in each case taken as one accounting period).
"Total Revolving Loan Commitment" shall mean, at any time, the
sum of the Revolving Loan Commitments of each of the Lenders.
"Total Unutilized Revolving Loan Commitment" shall mean, at
any time, an amount equal to the remainder of (x) the Total Revolving Loan
Commitment then in effect less (y) the sum of the aggregate principal amount of
all Revolving Loans and Swingline Loans then outstanding plus the then aggregate
amount of all Letter of Credit Outstandings.
"Trade Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Type" shall mean the type of Revolving Loan determined with
regard to the interest option applicable thereto, I.E., whether a Base Rate Loan
or a Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the
amount, if any, by which the actuarial present value of the accumulated plan
benefits under the Plan as of the close of its most recent plan year, determined
in accordance with actuarial assumptions at such time consistent with Statement
of Financial Accounting Standards No. 87, exceeds the market value of the assets
allocable thereto.
"United States" and "U.S." shall each mean the United
States of America.
"Unpaid Drawing" shall have the meaning provided for in
Section 2.05(a).
"Unutilized Revolving Loan Commitment" shall mean, with
respect to any Lender at any time, such Lender's Revolving Loan Commitment at
such time less the sum of (i) the aggregate outstanding principal amount of all
Revolving Loans made by such Lender at such time and (ii) such Lender's RL
Percentage of the Letter of Credit Outstandings at such time.
"Voting Stock" shall mean all classes of capital stock of the
Borrower then outstanding and normally entitled to vote in the election of
directors.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, limited liability company,
association, joint venture or other entity in which such Person and/or one or
more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such
time.
"WPIV" shall have the meaning provided in the first
paragraph of this Agreement.
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SECTION 12. THE ADMINISTRATIVE AGENT.
12.01 APPOINTMENT. The Lenders hereby irrevocably designate
BTCo as Administrative Agent (for purposes of this Section 12, the term
"Administrative Agent" also shall include BTCo in its capacity as Collateral
Agent pursuant to the Security Documents) to act as specified herein and in the
other Credit Documents. Each Lender hereby irrevocably authorizes, and each
holder of any Note by the acceptance of such Note shall be deemed irrevocably to
authorize, the Administrative Agent to take such action on their behalf under
the provisions of this Agreement, the other Credit Documents and any other
instruments and agreements referred to herein or therein and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Administrative Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto. The
Administrative Agent may perform any of its duties hereunder by or through its
officers, directors, agents, employees or affiliates.
12.02 NATURE OF DUTIES. The Administrative Agent shall not
have any duties or responsibilities except those expressly set forth in this
Agreement and in the other Credit Documents. Neither the Administrative Agent
nor any of its officers, directors, agents, employees or affiliates shall be
liable for any action taken or omitted by them hereunder or under any other
Credit Document or in connection herewith or therewith, unless caused by its or
their gross negligence or willful misconduct. The duties of the Administrative
Agent shall be mechanical and administrative in nature; the Administrative Agent
shall not have by reason of this Agreement or any other Credit Document a
fiduciary relationship in respect of any Lender or the holder of any Note; and
nothing in this Agreement or any other Credit Document, expressed or implied, is
intended to or shall be so construed as to impose upon the Administrative Agent
any obligations in respect of this Agreement or any other Credit Document except
as expressly set forth herein or therein. Notwithstanding the designation of
Bank of America as Documentation Agent, Bank of America shall not have any
obligations or duties under this Agreement or any other Credit Document beyond
that of a Lender.
12.03 LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT.
Independently and without reliance upon the Administrative Agent, each Lender
and the holder of each Note, to the extent it deems appropriate, has made and
shall continue to make (i) its own independent investigation of the financial
condition and affairs of Holdings and its Subsidiaries in connection with the
making and the continuance of the Loans and the taking or not taking of any
action in connection herewith and (ii) its own appraisal of the creditworthiness
of Holdings and its Subsidiaries and, except as expressly provided in this
Agreement, the Administrative Agent shall not have any duty or responsibility,
either initially or on a continuing basis, to provide any Lender or the holder
of any Note with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter. The Administrative Agent shall not be responsible to any
Lender or the holder of any Note for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectability, priority or
sufficiency of this Agreement or any other Credit Document or the financial
condition of Holdings or any of its
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Subsidiaries or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of
this Agreement or any other Credit Document, or the financial condition of
Holdings or any of its Subsidiaries or the existence or possible existence of
any Default or Event of Default.
12.04 CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, the Administrative Agent shall be
entitled to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Required Lenders;
and the Administrative Agent shall not incur liability to any Lender by reason
of so refraining. Without limiting the foregoing, no Lender or the holder of any
Note shall have any right of action whatsoever against the Administrative Agent
as a result of the Administrative Agent acting or refraining from acting
hereunder or under any other Credit Document in accordance with the instructions
of the Required Lenders.
12.05 RELIANCE. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Administrative Agent believed to be
the proper Person, and, with respect to all legal matters pertaining to this
Agreement and any other Credit Document and its duties hereunder and thereunder,
upon advice of counsel selected by the Administrative Agent (which may be
counsel for the Borrower).
12.06 INDEMNIFICATION. To the extent the Administrative Agent
is not reimbursed and indemnified by the Credit Parties, the Lenders will
reimburse and indemnify the Administrative Agent in proportion to their
respective "percentage" as used in determining the Required Lenders (determined
as if there were no Defaulting Lenders) for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements of whatsoever kind or nature which may be imposed on,
asserted against or incurred by the Administrative Agent in performing its
duties hereunder or under any other Credit Document or in any way relating to or
arising out of this Agreement or any other Credit Document; PROVIDED that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
to the extent resulting from the Administrative Agent's gross negligence or
willful misconduct (as finally determined by a court of competent jurisdiction.
12.07 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
With respect to its obligation to make Loans, or issue or participate in Letters
of Credit, under this Agreement, the Administrative Agent shall have the rights
and powers specified herein for a "Lender" and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the
term "Lenders," "Required Lenders," "holders of Notes" or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its respective individual capacities. The Administrative
Agent and its affiliates may accept deposits from, lend money to, and generally
engage in any kind of banking, investment banking, trust or other
83
business with, or provide debt financing, equity capital or other services
(including financial advisory services) to, any Credit Party or any Affiliate
of any Credit Party (or any Person engaged in a similar business with any
Credit Party or any Affiliate thereof) as if they were not performing the
duties specified herein, and may accept fees and other consideration from any
Credit Party or any Affiliate of any Credit Party for services in connection
with this Agreement and otherwise without having to account for the same to
the Lenders.
12.08 HOLDERS. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or indorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
12.09 RESIGNATION BY THE ADMINISTRATIVE AGENT. (a) The
Administrative Agent may resign from the performance of all its respective
functions and duties hereunder and/or under the other Credit Documents at any
time by giving 15 Business Days' prior written notice to the Borrower and the
Lenders. Such resignation shall take effect upon the appointment of a successor
Administrative Agent pursuant to clauses (b) and (c) below or as otherwise
provided below.
(b) Upon any such notice of resignation by the Administrative
Agent, the Required Lenders shall appoint a successor Administrative Agent
hereunder or thereunder who shall be a commercial bank or trust company
reasonably acceptable to the Borrower.
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent with the
consent of the Borrower (which consent shall not be unreasonably withheld or
delayed), shall then appoint a successor Administrative Agent who shall serve as
Administrative Agent hereunder or thereunder until such time, if any, as the
Required Lenders appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 20th Business Day after the date such
notice of resignation was given by the Administrative Agent, the Administrative
Agent's resignation shall become effective and the Required Lenders shall
thereafter perform all the duties of the Administrative Agent hereunder and/or
under any other Credit Document until such time, if any, as the Required Lenders
appoint a successor Administrative Agent as provided above.
SECTION 13. MISCELLANEOUS.
13.01 PAYMENT OF EXPENSES, ETC. The Borrower shall: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent and the
Documentation Agent (including, without limitation, the reasonable fees and
disbursements of White & Case LLP (or replacement counsel)
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and of the Administrative Agent's and the Documentation's Agent local counsel
and consultants, and no other counsel) in connection with the preparation,
execution and delivery of this Agreement and the other Credit Documents and
the documents and instruments referred to herein and therein and any
amendment, waiver or consent relating hereto or thereto, of the
Administrative Agent and the Documentation Agent in connection with their
syndication efforts with respect to this Agreement and of the Administrative
Agent and the Documentation Agent and, after the occurrence of an Event of
Default, each of the Lenders in connection with the enforcement of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein or in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a "work-out" or pursuant to any insolvency or bankruptcy
proceedings (including, without limitation, in each case the reasonable fees
and disbursements of counsel for the Administrative Agent and the
Documentation Agent and, after the occurrence of an Event of Default, for
each of the Lenders); (ii) pay and hold each of the Lenders harmless from and
against any and all present and future stamp, excise and other similar
documentary taxes with respect to the foregoing matters and save each of the
Lenders harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable
to such Lender) to pay such taxes; and (iii) indemnify the Administrative
Agent, the Documentation Agent and each Lender, and each of their respective
officers, directors, employees, representatives, affiliates and agents from
and hold each of them harmless against any and all liabilities, obligations
(including removal or remedial actions), losses, damages, penalties, claims,
actions, judgments, suits, costs, expenses and disbursements (including
reasonable attorneys' and consultants' fees and disbursements) incurred by,
imposed on or assessed against any of them as a result of, or arising out of,
or in any way related to, or by reason of, (a) any investigation, litigation
or other proceeding (whether or not the Administrative Agent, the
Documentation Agent or any Lender is a party thereto and whether or not such
investigation, litigation or other proceeding is brought by or on behalf of
any Credit Party) related to the entering into and/or performance of this
Agreement or any other Credit Document or the use of any Letter of Credit or
the proceeds of any Loans hereunder or any other transactions contemplated
herein or in any other Credit Document or the exercise of any of their rights
or remedies provided herein or in the other Credit Documents, or (b) the
actual or alleged presence of Hazardous Materials in the air, surface water
or groundwater or on the surface or subsurface of any Real Property owned or
at any time operated by Holdings or any of its Subsidiaries, the generation,
storage, transportation, handling or disposal of Hazardous Materials by
Holdings or any of its Subsidiaries at any location, whether or not owned or
operated by Holdings or any of its Subsidiaries, the non-compliance of any
Real Property with any Environmental Law (including applicable permits
thereunder) applicable to any Real Property, or any Environmental Claim
asserted against Holdings, any of its Subsidiaries or any Real Property owned
or at any time operated by Holdings or any of its Subsidiaries, including, in
each case, without limitation, the reasonable fees and disbursements of
counsel and other consultants incurred in connection with any such
investigation, litigation or other proceeding (but excluding, in each case,
any losses, liabilities, claims, damages or expenses to the extent incurred
by reason of the gross negligence or willful misconduct of the Person to be
indemnified (as finally determined by a court of competent jurisdiction). To
the extent that the undertaking to indemnify, pay or hold harmless the
Administrative Agent, the Documentation Agent or any Lender set forth in the
preceding sentence may be unenforceable because it is
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violative of any law or public policy, the Borrower shall make the maximum
contribution to the payment and satisfaction of each of the indemnified
liabilities which is permissible under applicable law.
13.02 RIGHT OF SETOFF. (a) In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
an Event of Default, the Administrative Agent, the Documentation Agent and each
Lender is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to any Credit Party or
to any other Person, any such notice being hereby expressly waived, to set off
and to appropriate and apply any and all deposits (general or special) and any
other Indebtedness at any time held or owing by the Administrative Agent, the
Documentation Agent or such Lender (including, without limitation, by branches
and agencies of such Lender wherever located) to or for the credit or the
account of any Credit Party against and on account of the Obligations and
liabilities of the Credit Parties to the Administrative Agent, the Documentation
Agent or such Lender under this Agreement or under any of the other Credit
Documents, including, without limitation, all interests in Obligations purchased
by such Lender pursuant to Section 13.06(b), and all other claims of any nature
or description arising out of or connected with this Agreement or any other
Credit Document, irrespective of whether or not the Administrative Agent, the
Documentation Agent or such Lender shall have made any demand hereunder and
although said Obligations, liabilities or claims, or any of them, shall be
contingent or unmatured.
(b) NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY TIME
THAT THE LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL PROPERTY LOCATED
IN CALIFORNIA, NO LENDER SHALL EXERCISE A RIGHT OF SETOFF, BANKER'S LIEN OR
COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY
PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE THAT IS NOT
TAKEN BY THE REQUIRED LENDERS OR APPROVED IN WRITING BY THE ADMINISTRATIVE AGENT
OR THE REQUIRED LENDERS IF SUCH SETOFF OR ACTION OR PROCEEDING WOULD OR MIGHT
(PURSUANT TO SECTIONS 580a, 580b, 580d AND 726 OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE OR SECTION 2924 OF THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR
OTHERWISE) AFFECT OR IMPAIR THE VALIDITY, PRIORITY OR ENFORCEABILITY OF THE
LIENS GRANTED TO THE COLLATERAL AGENT PURSUANT TO THE SECURITY DOCUMENTS OR THE
ENFORCEABILITY OF THE NOTES AND OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED
EXERCISE BY ANY LENDER OF ANY SUCH RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE
REQUIRED LENDERS SHALL BE NULL AND VOID. THIS SUBSECTION (b) SHALL BE SOLELY FOR
THE BENEFIT OF EACH OF THE LENDERS HEREUNDER AND MAY BE AMENDED, MODIFIED OR
WAIVED IN ANY RESPECT BY THE REQUIRED LENDERS WITHOUT THE REQUIREMENT OF PRIOR
NOTICE TO OR CONSENT BY ANY CREDIT PARTY AND DOES NOT CONSTITUTE A WAIVER OF ANY
RIGHTS AGAINST ANY CREDIT PARTY OR AGAINST ANY COLLATERAL.
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13.03 NOTICES. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to any Credit Party,
at the address specified opposite its signature below or in the other relevant
Credit Documents; if to the Lender, at its address specified on Schedule II; and
if to the Administrative Agent, at the Notice Office; or, as to any Credit Party
or the Administrative Agent, at such other address as shall be designated by
such party in a written notice to the other parties hereto and, as to each
Lender, at such other address as shall be designated by such Lender in a written
notice to the Borrower and the Administrative Agent. All such notices and
communications shall, when mailed, telegraphed, telexed, telecopied, or cabled
or sent by overnight courier, be effective when deposited in the mails,
delivered to the telegraph company, cable company or overnight courier, as the
case may be, or sent by telex or telecopier, except that notices and
communications to the Administrative Agent and the Borrower shall not be
effective until received by the Administrative Agent or the Borrower, as the
case may be.
13.04 BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS. (a)
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto;
PROVIDED, HOWEVER, the Borrower may not assign or transfer any of its rights,
obligations or interest hereunder without the prior written consent of the
Lenders and, PROVIDED FURTHER, that, although any Lender may transfer, assign or
grant participations in its rights hereunder, such Lender shall remain a
"Lender" for all purposes hereunder (and may not transfer or assign all or any
portion of its Revolving Loan Commitment hereunder except as provided in
Sections 1.13 and 13.04(b)) and the transferee, assignee or participant, as the
case may be, shall not constitute a "Lender" hereunder and, PROVIDED FURTHER,
that no Lender shall transfer or grant any participation under which the
participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or
waiver would (i) extend the final scheduled maturity of any Revolving Loan,
Revolving Note or Letter of Credit (unless such Letter of Credit is not extended
beyond the Final Maturity Date) in which such participant is participating, or
reduce the rate or extend the time of payment of interest or Fees thereon
(except in connection with a waiver of applicability of any post-default
increase in interest rates) or reduce the principal amount thereof, or increase
the amount of the participant's participation over the amount thereof then in
effect (it being understood that a waiver of any Default or Event of Default or
of a mandatory reduction in the Total Revolving Loan Commitment, shall not
constitute a change in the terms of such participation, and that an increase in
any Revolving Loan Commitment shall be permitted without the consent of any
participant if the participant's participation is not increased as a result
thereof), (ii) consent to the assignment or transfer by the Borrower of any of
its rights and obligations under this Agreement or (iii) release all or
substantially all of the Collateral under all of the Security Documents (except
as expressly provided in the Credit Documents) supporting the Loans hereunder in
which such participant is participating. In the case of any such participation,
the participant shall not have any rights under this Agreement or any of the
other Credit Documents (the participant's rights against such Lender in respect
of such participation to be those set forth in the agreement executed by such
Lender in favor of the participant relating thereto) and all amounts payable by
the Borrower hereunder shall be determined as if such Lender had not sold such
participation.
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(b) Notwithstanding the foregoing, any Lender (or any Lender
together with one or more other Lenders) may (x) assign all or a portion of its
Revolving Loan Commitment and related outstanding Obligations hereunder to (i)
its parent company and/or any affiliate of such Lender which is at least 50%
owned by such Lender or its parent company or to one or more Lenders or (ii) in
the case of any Lender that is a fund that invests in loans, any other fund that
invests in loans and is managed or advised by the same investment advisor of
such Lender or by an Affiliate of such investment advisor or (y) assign all or a
portion of such Revolving Loan Commitment and related outstanding Obligations
hereunder to one or more Eligible Transferees (treating any fund that invests in
loans and any other fund that invests in loans and is managed by the same
investment advisor of such fund or by an Affiliate of such investment advisor as
a single Eligible Transferee), each of which assignees shall become a party to
this Agreement as a Lender by execution of an Assignment and Assumption
Agreement, PROVIDED that, (i) at such time Schedule I shall be deemed modified
to reflect the Revolving Loan Commitment and/or outstanding Revolving Loans, as
the case may be, of such new Lender and of the existing Lenders, (ii) upon the
surrender of the relevant Revolving Note by the assigning Lender (or, upon such
assigning Lender's indemnifying the Borrower for any lost Revolving Note
pursuant to a customary indemnification agreement) new Revolving Notes will be
issued, at the Borrower's expense, to such new Lender and to the assigning
Lender upon the request of such new Lender or assigning Lender, such new
Revolving Notes to be in conformity with the requirements of Section 1.05 (with
appropriate modifications) to the extent needed to reflect the revised Revolving
Loan Commitment and/or outstanding Revolving Loans, as the case may be, (iii)
the consent of the Administrative Agent, the Documentation Agent and the
Borrower (the Borrower's consent to be required only so long as no Default under
Sections 10.01 and 10.05 exists and so long as no Event of Default exists) shall
be required in connection with any assignment to an Eligible Transferee pursuant
to clause (y) above (each of which consents shall not be unreasonably withheld
or delayed), (v) the Administrative Agent shall receive at the time of each such
assignment, from the assigning or assignee Lender, the payment of a
non-refundable assignment fee of $3,500 and (vi) no such transfer or assignment
will be effective until recorded by the Administrative Agent on the Register
pursuant to Section 13.15. To the extent of any assignment pursuant to this
Section 13.04(b), the assigning Lender shall be relieved of its obligations
hereunder with respect to its assigned Revolving Loan Commitment and outstanding
Revolving Loans.
(c) Nothing in this Agreement shall prevent or prohibit any
Lender from pledging its Revolving Loans and Revolving Notes hereunder to a
Federal Reserve Bank in support of borrowings made by such Lender from such
Federal Reserve Bank and, with the consent of the Administrative Agent, any
Lender which is a fund may pledge all or any portion of its Revolving Loans and
Revolving Notes to its trustee in support of its obligations to its trustee. No
pledge pursuant to this clause (c) shall release the transferor Lender from any
of its obligations hereunder.
13.05 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on
the part of the Administrative Agent, the Documentation Agent, the Collateral
Agent, the Issuing Lender or any Lender in exercising any right, power or
privilege hereunder or under any other Credit Document and no course of dealing
between the Borrower or any other Credit Party and the Administrative
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Agent, the Documentation Agent, the Collateral Agent, the Issuing Lender or
any Lender shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Credit
Document preclude any other or further exercise thereof or the exercise of
any other right, power or privilege hereunder or thereunder. The rights,
powers and remedies herein or in any other Credit Document expressly provided
are cumulative and not exclusive of any rights, powers or remedies which the
Administrative Agent, the Documentation Agent, the Collateral Agent, the
Issuing Lender or any Lender would otherwise have. No notice to or demand on
any Credit Party in any case shall entitle any Credit Party to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Administrative Agent, the Documentation Agent,
the Collateral Agent, the Issuing Lender or any Lender to any other or
further action in any circumstances without notice or demand.
13.06 PAYMENTS PRO RATA. (a) Except as otherwise provided in
this Agreement, the Administrative Agent agrees that promptly after its receipt
of each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Lenders (other than any
Lender that has consented in writing to waive its PRO RATA share of any such
payment) PRO RATA based upon their respective shares, if any, of the Obligations
with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security, by
the exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings, Commitment Commission or Letter of Credit Fees,
of a sum which with respect to the related sum or sums received by other Lenders
is in a greater proportion than the total of such Obligation then owed and due
to such Lender bears to the total of such Obligation then owed and due to all of
the Lenders immediately prior to such receipt, then such Lender receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Lenders an interest in the Obligations of the respective Credit Party to
such Lenders in such amount as shall result in a proportional participation by
all the Lenders in such amount; PROVIDED that if all or any portion of such
excess amount is thereafter recovered from such Lender, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
(c) Notwithstanding anything to the contrary contained herein,
the provisions of the preceding Sections 13.06(a) and (b) shall be subject to
the express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
13.07 CALCULATIONS; COMPUTATIONS; ACCOUNTING TERMS. (a) The
financial statements to be furnished to the Lenders pursuant hereto shall be
made and prepared in accordance with generally accepted accounting principles in
the United States consistently applied throughout the periods involved (except
as set forth in the notes thereto or as otherwise disclosed in writing by the
Borrower to the Lenders); PROVIDED that, except as otherwise
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specifically provided herein, all computations and all definitions used in
determining compliance with Sections 9.07 through 9.09, inclusive, shall
utilize accounting principles and policies in conformity with those used to
prepare the historical financial statements of the Borrower referred to in
Section 7.05(a).
(b) All computations of interest, Commitment Commission and
other Fees hereunder shall be made on the basis of a year of 360 days (or, in
the case of Base Rate Loans, 365 days) for the actual number of days (including
the first day but excluding the last day; except that in the case of Letter of
Credit Fees, the last day shall be included) occurring in the period for which
such interest, Commitment Commission or Fees are payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. (A) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS
OTHERWISE PROVIDED IN THE MORTGAGES, BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT, EACH OF HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH OF HOLDINGS AND
THE BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS
LACK PERSONAL JURISDICTION OVER SUCH CREDIT PARTY, AND AGREES NOT TO PLEAD OR
CLAIM, IN ANY LEGAL ACTION PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENTS BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH
COURTS LACK PERSONAL JURISDICTION OVER SUCH CREDIT PARTY. EACH OF HOLDINGS AND
THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH CREDIT
PARTY AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO
BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH OF HOLDINGS AND THE BORROWER
HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING
COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE OF PROCESS
WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
THE ADMINISTRATIVE AGENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO
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COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST HOLDINGS OR THE
BORROWER IN ANY OTHER JURISDICTION.
(B) EACH OF HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY
WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED
TO IN CLAUSE (A) ABOVE AND HEREBY FURTHER IRREVOCABLY, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
(C) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
13.10 EFFECTIVENESS. This Agreement shall become effective on
the date (the "Effective Date") on which (i) Holdings, WPIV, the Borrower, the
Administrative Agent and each of the Lenders shall have signed a counterpart
hereof (whether the same or different counterparts) and shall have delivered the
same to the Administrative Agent at the Notice Office or, in the case of the
Lenders, shall have given to the Administrative Agent telephonic (confirmed in
writing), written or telex notice (actually received) at such office that the
same has been signed and mailed to it and (ii) the conditions contained in
Section 5 are met to the satisfaction of the Administrative Agent, the
Documentation Agent and the Required Lenders. Unless the Administrative Agent
has received actual notice from any Lender that the conditions described in
clause (ii) of the preceding sentence have not been met to its satisfaction,
upon the satisfaction of the condition described in clause (i) of the
immediately preceding sentence and upon the Administrative Agent's good faith
determination that the conditions described in clause (ii) of the immediately
preceding sentence have been met, then the Effective Date shall have deemed to
have occurred, regardless of any subsequent determination that one or more of
the conditions thereto had not been met (although the occurrence of the
Effective Date shall not release the Borrower or any other Credit Party from any
liability for failure to satisfy one or more of the applicable conditions
contained in Section 5). The Administrative Agent will give Holdings, WPIV, the
Borrower and each Lender prompt written notice of the occurrence of the
Effective Date.
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13.11 HEADINGS DESCRIPTIVE. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
13.12 AMENDMENT OR WAIVER; ETC. (a) Neither this Agreement nor
any other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the respective Credit Parties party thereto
and the Required Lenders, PROVIDED that no such change, waiver, discharge or
termination shall, without the consent of each Lender (other than a Defaulting
Lender) (with Obligations being directly affected in the case of following
clause (i)), (i) extend the final scheduled maturity of any Loan or Note or
extend the stated expiration date of any Letter of Credit beyond the Final
Maturity Date, or reduce the rate or extend the time of payment of interest or
Fees thereon, or reduce the principal amount thereof (except to the extent
repaid in cash), (ii) release all or substantially all of the Collateral (except
as expressly provided in the Credit Documents) under all the Security Documents,
(iii) release all or substantially all of the Guarantors from their respective
obligations under the Guaranties, (iv) amend, modify or waive any provision of
this Section 13.12 (it being understood that, with the consent of the Required
Lenders, additional extensions of credit pursuant to this Agreement may afford
the holders thereof and/or the then existing Lenders additional rights of
consent), (v) reduce the percentage specified in the definition of Required
Lenders (it being understood that, with the consent of the Required Lenders,
additional extensions of credit pursuant to this Agreement may be included in
the determination of the Required Lenders on substantially the same basis as the
extensions of Revolving Loan Commitments are included on the Effective Date) or
(vi) consent to the assignment or transfer by the Borrower of any of its rights
and obligations under this Agreement; PROVIDED FURTHER, that no such change,
waiver, discharge or termination shall (v) increase the Revolving Loan
Commitment of any Lender over the amount thereof then in effect without the
consent of such Lender (it being understood that waivers or modifications of
conditions precedent, covenants, Defaults or Events of Default or of a mandatory
reduction in the Total Revolving Loan Commitment shall not constitute an
increase of the Revolving Loan Commitment of any Lender, and that an increase in
the available portion of the Revolving Loan Commitment of any Lender shall not
constitute an increase of the Revolving Loan Commitment of such Lender), (w)
without the consent of the Issuing Lender, amend, modify or waive any provision
of Section 2 or alter its rights or obligations with respect to Letters of
Credit, (x) without the consent of the Swingline Lender, alter the Swingline
Lender's rights or obligations with respect to Swingline Loans, (y) without the
consent of the Administrative Agent, amend, modify or waive any provision of
Section 12 or any other provision as same relates to the rights or obligations
of the Administrative Agent or (z) without the consent of the Collateral Agent,
amend, modify or waive any provision relating to the rights or obligations of
the Collateral Agent.
(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clauses (i) through (v), inclusive, of the first proviso to
Section 13.12(a), the consent of the Required Lenders is obtained but the
consent of one or more of such other Lenders whose consent is required is not
obtained, then the Borrower shall have the right, so long as all non-consenting
Lenders whose individual
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consent is required are treated as described in either clauses (A) or (B)
below, to either (A) replace each such non-consenting Lender or Lenders with
one or more Replacement Lenders pursuant to Section 1.13 so long as at the
time of such replacement, each such Replacement Lender consents to the
proposed change, waiver, discharge or termination or (B) terminate such
non-consenting Lender's Revolving Loan Commitment and/or repay the
outstanding Revolving Loans of such Lender in accordance with Sections
3.02(b) and/or 4.01(b), PROVIDED that, unless the Revolving Loan Commitment
that is terminated, and Revolving Loans repaid, pursuant to preceding clause
(B) are immediately replaced in full at such time through the addition of new
Lenders or the increase of the Revolving Loan Commitments and/or outstanding
Revolving Loans of existing Lenders (who in each case must specifically
consent thereto), then in the case of any action pursuant to preceding clause
(B) each Lender (determined after giving effect to the proposed action) shall
specifically consent thereto, PROVIDED FURTHER, that in any event the
Borrower shall not have the right to replace a Lender, terminate its
Revolving Loan Commitment or repay its Revolving Loans solely as a result of
the exercise of such Lender's rights (and the withholding of any required
consent by such Lender) pursuant to the second proviso to Section 13.12(a).
13.13 SURVIVAL. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 2.06, 4.04, 12.06 and 13.01 shall
survive the execution, delivery and termination of this Agreement and the Notes
and the making and repayment of the Obligations.
13.14 DOMICILE OF LOANS. Each Lender may transfer and carry
its Loans at, to or for the account of any office, Subsidiary or Affiliate of
such Lender. Notwithstanding anything to the contrary contained herein, to the
extent that a transfer of Loans pursuant to this Section 13.14 would, at the
time of such transfer, result in increased costs under Section 1.10, 2.06 or
4.04 from those being charged by the respective Lender prior to such transfer,
then the Borrower shall not be obligated to pay such increased costs (although
the Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer).
13.15 REGISTER. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for purposes of
this Section 13.15, to maintain a register (the "Register") on which it will
record the Revolving Loan Commitment from time to time of each of the Lenders,
the Revolving Loans made by each of the Lenders and each repayment in respect of
the principal amount of the Revolving Loans of each Lender. Failure to make any
such recordation, or any error in such recordation shall not affect the
Borrower's obligations in respect of such Revolving Loans. With respect to any
Lender, the transfer of the Revolving Loan Commitment of such Lender and the
rights to the principal of, and interest on, any Revolving Loan made pursuant to
such Revolving Loan Commitment shall not be effective until such transfer is
recorded on the Register maintained by the Administrative Agent with respect to
ownership of such Revolving Loan Commitment and Revolving Loans and prior to
such recordation all amounts owing to the transferor with respect to such
Revolving Loan Commitment and Revolving Loans shall remain owing to the
transferor. The registration of assignment or transfer of all or part of any
Revolving Loan Commitment and Revolving Loans shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
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Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 13.04(b). Coincident with the delivery
of such an Assignment and Assumption Agreement to the Administrative Agent for
acceptance and registration of assignment or transfer of all or part of a
Revolving Loan, or as soon thereafter as practicable, the assigning or
transferor Lender shall surrender the Revolving Note evidencing such Revolving
Loan, and thereupon one or more new Revolving Notes in the same aggregate
principal amount shall be issued to the assigning or transferor Lender and/or
the new Lender. The Borrower agrees to indemnify the Administrative Agent from
and against any and all losses, claims, damages and liabilities of whatsoever
nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this Section 13.15.
13.16 CONFIDENTIALITY. (a) Subject to the provisions of clause
(b) of this Section 13.16, the Administrative Agent, the Documentation Agent,
the Collateral Agent and each Lender agrees that it will use its reasonable
efforts not to disclose without the prior consent of the Borrower (other than to
its employees, auditors, advisors or counsel or to another Lender if the Lender
or such Lender's holding or parent company in its sole discretion determines
that any such party should have access to such information, provided such
Persons shall be subject to the provisions of this Section 13.16 to the same
extent as such Lender) any information with respect to Holdings or any of its
Subsidiaries which is now or in the future furnished pursuant to this Agreement
or any other Credit Document and which is designated by the Borrower to the
Administrative Agent, the Documentation Agent, the Collateral Agent and the
Lenders in writing as confidential, PROVIDED that the Administrative Agent, the
Documentation Agent, the Collateral Agent and any Lender may disclose any such
information (i) as has become generally available to the public other than by
virtue of a breach of this Section 13.16(a) by the Administrative Agent, the
Documentation Agent, the Collateral Agent or respective Lender, (ii) as may be
required or appropriate in any report, statement or testimony submitted to any
municipal, state or Federal regulatory body having or claiming to have
jurisdiction over the Administrative Agent, the Documentation Agent, the
Collateral Agent or such Lender or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or similar organizations (whether in the United
States or elsewhere) or their successors, (iii) as may be required or
appropriate in respect to any summons or subpoena or in connection with any
litigation, (iv) in order to comply with any law, order, regulation or ruling
applicable to the Administrative Agent, the Documentation Agent, the Collateral
Agent or such Lender, (v) in the case of any Lender, to the Administrative Agent
or the Collateral Agent and (vi) to any prospective or actual transferee or
participant in connection with any contemplated transfer or participation of any
of the Revolving Notes or Revolving Loan Commitments or any interest therein by
such Lender, PROVIDED that such prospective transferee agrees to be bound by the
confidentiality provisions contained in this Section 13.16.
(b) Each Parent Guarantor and the Borrower hereby acknowledges
and agrees that the Administrative Agent, the Documentation Agent and each
Lender may share with any of its affiliates any information related to Holdings
or any of its Subsidiaries (including, without limitation, any nonpublic
customer information regarding the creditworthiness of Holdings and its
Subsidiaries), provided such Persons shall be subject to the provisions of this
Section 13.16 to the same extent as such Lender).
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13.17 LIMITATION ON ADDITIONAL AMOUNTS, ETC. Notwithstanding
anything to the contrary contained in Section 1.10, 1.11, 2.06 or 4.04 of this
Agreement, unless a Lender gives notice to the Borrower that it is obligated to
pay an amount under such Section within six months after the later of (x) the
date the Lender incurs the respective increased costs, Taxes, loss, expense or
liability, reduction in amounts received or receivable or reduction in return on
capital or (y) the date such Lender has actual knowledge of its incurrence of
the respective increased costs, Taxes, loss, expense or liability, reductions in
amounts received or receivable or reduction in return on capital, then such
Lender shall only be entitled to be compensated for such amount by the Borrower
pursuant to said Section 1.10, 1.11, 2.06 or 4.04, as the case may be, to the
extent of the costs, Taxes, loss, expense or liability, reduction in amounts
received or receivable or reduction in return on capital that are incurred or
suffered on or after the date which occurs six months prior to such Lender
giving notice to the Borrower that it is obligated to pay the respective amounts
pursuant to said Section 1.10, 1.11, 2.06 or 4.04, as the case may be. This
Section 13.17 shall have no applicability to any Section of this Agreement other
than said Sections 1.10, 1.11, 2.06 and 4.04.
SECTION 14. PARENT GUARANTY.
14.01 GUARANTY. In order to induce the Administrative Agent,
the Documentation Agent, the Collateral Agent, the Issuing Lender and the
Lenders to enter into this Agreement and to extend credit hereunder, and to
induce the other Guaranteed Creditors to enter into Interest Rate Protection
Agreements or Other Hedging Agreements, and in recognition of the direct
benefits to be received by each of the Parent Guarantors from the proceeds of
the Loans, the issuance of the Letters of Credit and the entering into of such
Interest Rate Protection Agreements or Other Hedging Agreements, each of the
Parent Guarantors hereby agrees with the Guaranteed Creditors as follows: Each
Parent Guarantor, jointly and severally, hereby unconditionally and irrevocably
guarantees as primary obligor and not merely as surety the full and prompt
payment when due, whether upon maturity, acceleration or otherwise, of any and
all of the Guaranteed Obligations of the Borrower to the Guaranteed Creditors.
If any or all of the Guaranteed Obligations of the Borrower to the Guaranteed
Creditors becomes due and payable hereunder, each of the Parent Guarantors,
jointly and severally, unconditionally and irrevocably promises to pay such
indebtedness to the Administrative Agent and/or the other Guaranteed Creditors,
or order, on demand, together with any and all expenses which may be incurred by
the Administrative Agent or the other Guaranteed Creditors in collecting any of
the Guaranteed Obligations. If claim is ever made upon any Guaranteed Creditor
for repayment or recovery of any amount or amounts received in payment or on
account of any of the Guaranteed Obligations and any of the aforesaid payees
repays all or part of said amount by reason of (i) any judgment, decree or order
of any court or administrative body having jurisdiction over such payee or any
of its property or (ii) any settlement or compromise of any such claim effected
by such payee with any such claimant (including the Borrower), then and in such
event each of the Parent Guarantors agrees that any such judgment, decree,
order, settlement or compromise shall be binding upon each of the Parent
Guarantors, notwithstanding any revocation of this Guaranty or other instrument
evidencing any liability of the Borrower, and each of the Parent Guarantors
shall be and remain liable to the aforesaid payees hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally
been received by any such payee.
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14.02 BANKRUPTCY. Additionally, each of the Parent Guarantors,
jointly and severally, unconditionally and irrevocably guarantees the payment of
any and all of the Guaranteed Obligations of the Borrower to the Guaranteed
Creditors whether or not due or payable by the Borrower upon the occurrence of
any of the events specified in Section 10.05, and irrevocably and
unconditionally promises to pay such indebtedness to the Guaranteed Creditors,
or order, on demand, in lawful money of the United States.
14.03 NATURE OF LIABILITY. The liability of each of the Parent
Guarantors hereunder is exclusive and independent of any security for or other
guaranty of the Guaranteed Obligations of the Borrower whether executed by each
of the Parent Guarantors, any other guarantor or by any other party, and the
liability of each of the Parent Guarantors hereunder is not affected or impaired
by (a) any direction as to application of payment by the Borrower or by any
other party, or (b) any other continuing or other guaranty, undertaking or
maximum liability of a guarantor or of any other party as to the Guaranteed
Obligations of the Borrower, or (c) any payment on or in reduction of any such
other guaranty or undertaking, or (d) any dissolution, termination or increase,
decrease or change in personnel by the Borrower, or (e) any payment made to any
Guaranteed Creditor on the Guaranteed Obligations which any such Guaranteed
Creditor repays to the Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
each of the Parent Guarantors waives any right to the deferral or modification
of its obligations hereunder by reason of any such proceeding.
14.04 INDEPENDENT OBLIGATION. The obligations of each of the
Parent Guarantors hereunder are independent of the obligations of any other
guarantor, any other party or the Borrower, and a separate action or actions may
be brought and prosecuted against each of the Parent Guarantors whether or not
action is brought against any other guarantor, any other party or the Borrower
and whether or not any other guarantor, any other party or the Borrower be
joined in any such action or actions. Each of the Parent Guarantors waives, to
the fullest extent permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement thereof. Any payment by the
Borrower or other circumstance which operates to toll any statute of limitations
as to the Borrower shall operate to toll the statute of limitations as to each
of the Parent Guarantors.
14.05 AUTHORIZATION. Each Parent Guarantor authorizes the
Guaranteed Creditors without notice or demand (except as shall be required by
applicable statute and cannot be waived), and without affecting or impairing its
liability hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew, increase, accelerate or
alter, any of the Guaranteed Obligations (including any increase or
decrease in the rate of interest or fees thereon), any security
therefor, or any liability incurred directly or indirectly in respect
thereof, and the Guaranty herein made shall apply to the Guaranteed
Obligations as so changed, extended, renewed or altered;
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(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, impair, surrender, realize
upon or otherwise deal with in any manner and in any order any property
by whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any
of those hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against the
Borrower, any other Credit Party or others or otherwise act or refrain
from acting;
(d) release or substitute any one or more endorsers,
guarantors, the Borrower, other Credit Parties or other obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of the Borrower to
its creditors other than the Guaranteed Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of the Borrower to the Guaranteed
Creditors regardless of what liability or liabilities of the Borrower
remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, this Agreement, any other Credit Document or any of the
instruments or agreements referred to herein or therein, or otherwise
amend, modify or supplement this Agreement, any other Credit Document
or any of such other instruments or agreements; and/or
(h) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable
discharge of any of the Parent Guarantors from its liabilities under
this Guaranty.
14.06 RELIANCE. It is not necessary for any Guaranteed
Creditor to inquire into the capacity or powers of any of the Parent Guarantors
or any of its Subsidiaries or the officers, directors, partners or agents acting
or purporting to act on their behalf, and any Guaranteed Obligations made or
created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
14.07 SUBORDINATION. Any indebtedness of the Borrower now or
hereafter owing to any of the Parent Guarantors is hereby subordinated to the
Guaranteed Obligations of the Borrower owing to the Guaranteed Creditors; and if
the Administrative Agent so requests at a time when an Event of Default exists,
all such indebtedness of the Borrower to each of the Parent Guarantors shall be
collected, enforced and received by each of the Parent Guarantors for the
benefit of the Guaranteed Creditors and be paid over to the Administrative Agent
on behalf of the Guaranteed Creditors on account of the Guaranteed Obligations
of the Borrower to the Guaranteed Creditors, but without affecting or impairing
in any manner the liability of each of
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the Parent Guarantors under the other provisions of this Guaranty. Nothing
herein shall prevent the Borrower from making any payment with respect to any
such indebtedness to each of the Parent Guarantors unless an Event of Default
then exists. Prior to the transfer by any of the Parent Guarantors of any
note or negotiable instrument evidencing any such indebtedness of the
Borrower to such Parent Guarantor, such Parent Guarantor shall mark such note
or negotiable instrument with a legend that the same is subject to this
subordination. Without limiting the generality of the foregoing, each of the
Parent Guarantors hereby agrees with the Guaranteed Creditors that it will
not exercise any right of subrogation which it may at any time otherwise have
as a result of this Guaranty (whether contractual, under Section 509 of the
Bankruptcy Code or otherwise) until all Guaranteed Obligations have been
irrevocably paid in full in cash and the commitments with respect thereto
have been terminated.
14.08 WAIVER. (a) Each Parent Guarantor waives any right
(except as shall be required by applicable statute and cannot be waived) to
require any Guaranteed Creditor to (i) proceed against the Borrower, any other
guarantor or any other party, (ii) proceed against or exhaust any security held
from the Borrower, any other guarantor or any other party or (iii) pursue any
other remedy in any Guaranteed Creditor's power whatsoever. Each Parent
Guarantor waives any defense based on or arising out of any defense of the
Borrower, any other guarantor or any other party, other than payment of the
Guaranteed Obligations to the extent of such payment, based on or arising out of
the disability of the Borrower, any other guarantor or any other party, or the
validity, legality or unenforceability of the Guaranteed Obligations or any part
thereof from any cause, or the cessation from any cause of the liability of the
Borrower other than payment of the Guaranteed Obligations to the extent of such
payment. The Guaranteed Creditors may, at their election, foreclose on any
security held by the Administrative Agent, the Collateral Agent or any other
Guaranteed Creditor by one or more judicial or nonjudicial sales, whether or not
every aspect of any such sale is commercially reasonable (to the extent such
sale is permitted by applicable law), or exercise any other right or remedy the
Guaranteed Creditors may have against the Borrower or any other party, or any
security, without affecting or impairing in any way the liability of each of the
Parent Guarantors hereunder except to the extent the Guaranteed Obligations have
been paid. Each Parent Guarantor waives any defense arising out of any such
election by the Guaranteed Creditors, even though such election operates to
impair or extinguish any right of reimbursement or subrogation or other right or
remedy of each of the Parent Guarantors against the Borrower or any other party
or any security.
(b) Each Parent Guarantor waives all presentments, demands for
performance, protests and notices, including without limitation notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of new or
additional Guaranteed Obligations. Each Parent Guarantor assumes all
responsibility for being and keeping itself informed of the Borrower's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and extent of the
risks which each of the Parent Guarantors assumes and incurs hereunder, and
agrees that the Administrative Agent and the Lenders shall have no duty to
advise each of the Parent Guarantors of information known to them regarding such
circumstances or risks.
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(c) Each Parent Guarantor hereby acknowledges and affirms that
it understands that to the extent the Guaranteed Obligations are secured by Real
Property located in California, each of the Parent Guarantors shall be liable
for the full amount of the liability hereunder notwithstanding the foreclosure
on such Real Property by trustee sale or any other reason impairing any Parent
Guarantor's or any Guaranteed Creditor's right to proceed against the Borrower
or any other guarantor of the Guaranteed Obligations. In accordance with Section
2856 of the California Civil Code, each of the Parent Guarantors hereby waives:
(i) all rights of subrogation, reimbursement, indemnification,
and contribution and any other rights and defenses that are or may
become available to such Parent Guarantor by reason of Sections 2787 to
2855, inclusive, 2899 and 3433 of the California Civil Code;
(ii) all rights and defenses that such Parent Guarantor may
have because the Guaranteed Obligations are secured by Real Property
located in California. This means, among other things: (A) the
Guaranteed Creditors may collect from any of the Parent Guarantors
without first foreclosing on any real or personal property collateral
pledged by the Borrower or any other Credit Party; and (B) if the
Guaranteed Creditors foreclose on any Real Property collateral pledged
by the Borrower or any other Credit Party, (1) the amount of the
Guaranteed Obligations may be reduced only by the price for which that
collateral is sold at the foreclosure sale, even if the collateral is
worth more than the sale price, and (2) the Guaranteed Creditors may
collect from any of the Parent Guarantors even if the Guaranteed
Creditors, by foreclosing on the Real Property collateral, have
destroyed any right any of the Parent Guarantors may have to collect
from the Borrower. This is an unconditional and irrevocable waiver of
any rights and defenses each of the Parent Guarantors may have because
the Guaranteed Obligations are secured by Real Property. These rights
and defenses include, but are not limited to, any rights or defenses
based upon Section 580a, 580b, 580d or 726 of the California Code of
Civil Procedure; and
(iii) all rights and defenses arising out of an election of
remedies by the Guaranteed Creditors, even though that election of
remedies, such as a nonjudicial foreclosure with respect to security
for the Guaranteed Obligations, has destroyed such Parent Guarantor's
rights of subrogation and reimbursement against the Borrower by the
operation of Section 580d of the Code of Civil Procedure or otherwise.
Each Parent Guarantor warrants and agrees that each of the waivers set forth
above is made with full knowledge of its significance and consequences and that
if any of such waivers are determined to be contrary to any applicable law or
public policy, such waivers shall be effective only to the maximum extent
permitted by law.
14.09 NATURE OF LIABILITY. It is the desire and intent of each
of the Parent Guarantors and the Guaranteed Creditors that this Guaranty shall
be enforced against each of the Parent Guarantors to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. If, however, and to the extent that, the
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obligations of each of the Parent Guarantors under this Guaranty shall be
adjudicated to be invalid or unenforceable for any reason (including, without
limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers), then the amount of each of the Parent
Guarantors obligations under this Guaranty shall be deemed to be reduced and
each of the Parent Guarantors shall pay the maximum amount of the Guaranteed
Obligations which would be permissible under applicable law.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
ADDRESS:
2777 Summer Street INFORMATION HOLDINGS, INC.
Suite 209
Stamford, CT 06905 By: /s/ VINCENT A. CHIPPARI
Attn: Vincent Chippari --------------------------
Telephone No.: (203) 961-9208 Title: Chief Financial Officer
Telecopier No.: (203) 961-1431
c/o Information Holdings, Inc. WARBURG, PINCUS INFORMATION
2777 Summer Street VENTURES, INC.
Suite 209
Stamford, CT 06905 By: /s/ VINCENT A.CHIPPARI
-------------------------
Attn: Vincent Chippari Title: Executive Vice President
Telephone No.: (203) 961-9208
Telecopier No.: (203) 961-1431
2777 Summer Street INFORMATION VENTURES L.L.C.
Suite 209
Stamford, CT 06905 By: /s/ VINCENT A. CHIPPARI
Attn: Vincent Chippari --------------------------
Telephone No.: (203) 961-9208 Title: Chief Financial Officer
Telecopier No.: (203) 961-1431
BANKERS TRUST COMPANY,
Individually and as
Administrative Agent
By: /s/ G. ANDREW KEITH
--------------------------
Title: Vice President
BANK OF AMERICA, N.A.,
Individually and as
Documentation Agent
By: /s/ HEIDI-ANNE SANDQUIST
--------------------------
Title: Vice President
SCHEDULE I
REVOLVING LOAN COMMITMENTS
Revolving Loan
LENDER COMMITMENT
Bankers Trust Company $25,000,000.00
Bank of America, N.A. $25,000,000.00
TOTAL: $50,000,000.00
SCHEDULE II
LENDER ADDRESSES
LENDER ADDRESS
Bankers Trust Company 130 Liberty Street
New York, New York 10006
Attn: Andrew Keith
Tel. No.: (212) 250-8617
Fax No.: (212) 250-7218
Bank of America, N.A. 9 West 57th Street
43rd Floor
New York, New York 10019
Attn: Heidi Sandquist
Tel. No.: (212) 583-8751
Fax No.: (212) 847-5035