OUTSOURCING SOLUTIONS INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT is dated as of January
26, 1998 and entered into by and among OUTSOURCING SOLUTIONS INC., a Delaware
corporation ("Company"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE
PAGES HEREOF (each individually referred to herein as a "LENDER" and
collectively as "LENDERS"), GOLDMAN SACHS CREDIT PARTNERS L.P. and THE CHASE
MANHATTAN BANK, as co-administrative agents (each, in such capacity, a
"CO-ADMINISTRATIVE AGENT" and, collectively, "CO-ADMINISTRATIVE AGENTS"),
GOLDMAN SACHS CREDIT PARTNERS L.P. and CHASE SECURITIES INC., as arranging
agents (each, in such capacity, an "ARRANGING AGENT" and collectively,
"ARRANGING AGENTS"), and SUNTRUST BANK, ATLANTA, as collateral agent (in such
capacity, "COLLATERAL AGENT").
R E C I T A L S
- - - - - - - -
WHEREAS, Company and certain financial institutions (the "Existing
Lenders") are parties to that certain Amended and Restated Credit Agreement
dated as of October 8, 1997 (as heretofore amended, supplemented or otherwise
modified, the "EXISTING CREDIT AGREEMENT"), pursuant to which the Existing
Lenders (capitalized terms used in these Recitals without definition shall have
the respective meanings assigned in subsection 1.1 hereof) have extended and
agreed to extend certain credit facilities to Company, the proceeds of which
were or will be used (i) together with the proceeds of the Subordinated Notes
and certain other funds, to fund the Payco Acquisition, the Accelerated
Acquisition and the NSA Acquisition and refinance certain indebtedness of
Company, Payco, Accelerated and NSA and pay certain transaction fees and
expenses relating thereto, and (ii) to provide working capital and financing for
certain acquisitions by Company and its Subsidiaries;
WHEREAS, the domestic Subsidiaries of Company have guaranteed all of the
obligations of Company with respect to the credit facilities provided by Lenders
under the Existing Credit Agreement;
WHEREAS, Company has secured all of the Obligations under the Existing
Credit Agreement, and each such Subsidiary of Company has secured its respective
obligations under the Subsidiary Guaranty, by granting to Collateral Agent, for
the benefit of Agents and Lenders, (i) a first priority Lien on substantially
all of their respective real and personal property and (ii) a first priority
pledge of all of the capital stock of their respective domestic Subsidiaries
(65% of the capital stock of their respective foreign subsidiaries);
WHEREAS, Company has entered into (i) the Accelerated Acquisition Agreement
with Accelerated Bureau of Collections, Inc., a Colorado corporation
("Accelerated"), pursuant to which, among other things, Company has acquired all
or substantially all of the assets (the "ACCELERATED ACQUIRED ASSETS") of
Accelerated, and (ii) the NSA Acquisition Agreement with North Shore Agency,
Inc., a New York corporation ("NSA"), and certain other Persons, pursuant to
which, among other things, Company has acquired all or substantially all of the
assets (the "NSA ACQUIRED ASSETS") of NSA;
WHEREAS, Company, Sherman Acquisition Corporation ("Merger Sub") and The
Union Corporation, a Delaware corporation ("Union") have entered into the Union
Acquisition Agreement pursuant to which (i) Merger Sub will tender for all of
the issued and outstanding capital stock of Union pursuant to the Tender Offer;
(ii) after consummation of the Tender Offer, Merger Sub will merge (the "UNION
MERGER") with and into Union, with Union being the surviving corporation and
thereby becoming a wholly-owned Subsidiary of Company; and (iii) pursuant to the
Union Merger any Union Common Stock not tendered in the Tender Offer will be
canceled in exchange for certain cash consideration;
WHEREAS, Company desires that Existing Lenders and New Lenders agree to
amend and restate the Existing Credit Agreement in its entirety (i) to extend
additional credit facilities to Company in an aggregate principal amount of
$225,000,000 through the addition of a Tranche C Term Loan facility, the
proceeds of which will be used (a) to finance the purchase of the capital stock
of Union pursuant to the Tender Offer and the payment of cash consideration to
certain shareholders of Union upon consummation of the Union Merger, (b) to pay
Transaction Costs, and (c) to repay outstanding Revolving Loans, and (ii) to
make certain other changes as more fully set forth herein, which amendment and
restatement shall become effective upon satisfaction of the conditions precedent
set forth herein;
WHEREAS, it is the intent of the parties hereto that this Agreement not
constitute a novation of the obligations and liabilities of the parties under
the Existing Credit Agreement or be deemed to evidence or constitute repayment
of all or any portion of such obligations and liabilities and that this
Agreement amend and restate in its entirety the Existing Credit Agreement and
re-evidence the Obligations of Company outstanding thereunder; and
WHEREAS, it is the intent of Loan Parties to confirm that all Obligations
of Loan Parties under the other Loan Documents shall continue in full force and
effect and that, from and after the Effective Date, all references to the
"CREDIT AGREEMENT" contained therein shall be deemed to refer to this Agreement:
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Company, Lenders, Co-Administrative
Agents, Arranging Agents and Collateral Agent agree that on the Effective Date
the Existing Credit Agreement shall be amended and restated in its entirety as
follows:
SECTION 1.
DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the following
meanings:
"Accelerated" has the meaning assigned to that term in the Recitals to this
Agreement.
"Accelerated Acquired Assets" means the assets acquired pursuant to the
Accelerated Acquisition.
"Accelerated Acquisition" means the transactions contemplated by the
Accelerated Acquisition Agreement.
"Accelerated Acquisition Agreement" means the Asset Purchase Agreement by
and between Company and Accelerated, in the form delivered to Arranging Agents
on or prior to the Funding Date for the Accelerated Acquisition Loans and as
such agreement may be amended, restated, supplemented or otherwise modified from
time to time to the extent permitted under subsection 7.12A.
"Accelerated Acquisition Loans" means Additional Tranche B Term Loans in an
aggregate principal amount of $33,000,000 made to Company on November 10, 1997.
"Acquisition Loans" means the Accelerated Acquisition Loans and the NSA
Acquisition Loans, collectively.
"Acquisition Sub" means Boxer Acquisition Corp., a Delaware corporation.
"Additional Tranche B Term Loans" means the Loans made by Lenders to
Company pursuant to subsection 2.1A(ii) of the Existing Credit Agreement.
"Adjusted Eurodollar Rate" means, for any Interest Rate Determination Date,
the rate per annum obtained by dividing (i) the London Interbank offered rate
for deposits in U.S. Dollars for maturities comparable to the Interest Period
for which such Adjusted Eurodollar Rate will apply as of approximately 11:00
A.M. (London time) on such Interest Rate Determination Date as set forth on
Telerate Page 3750 by (ii) a percentage equal to 100% minus the stated maximum
rate of all reserve requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves) applicable on such Interest
Rate Determination Date to any member bank of the Federal Reserve System in
respect of "Eurocurrency liabilities" as defined in Regulation D (or any
successor category of liabilities under Regulation D).
"Affected Lender" has the meaning assigned to that term in subsection 2.6C.
"Affiliate" means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise; provided, however, that "Affiliate" as applied to
Company or its Subsidiaries shall not include Chase, CSI, GSCP, Goldman, Sachs &
Co. or CS First Boston Corporation and their respective Affiliates, except that
Goldman, Sachs & Co. and GSCP shall be considered Affiliates of Company and its
Subsidiaries for purposes of subsection 7.9 hereof to the extent such Persons
are acting as agents or brokers for Company or any of its Subsidiaries in
connection with any sales of receivables portfolios.
"Agent" means, individually, each of Collateral Agent, Co-Administrative
Agents and Arranging Agents, and "AGENTS" means Collateral Agent,
Co-Administrative Agents and Arranging Agents, collectively.
"Agreement" means this Second Amended and Restated Credit Agreement dated
as of January 26, 1998, as it may be amended, restated, supplemented or
otherwise modified from time to time.
"Applicable Base Rate Margin" means, with respect to the applicable Loan
set forth below, the corresponding per annum rate set forth below:
=========================================== ==================================
LOAN APPLICABLE
BASE RATE MARGIN
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Tranche A Term Loans 1.50%
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Tranche B Term Loans 2.00%
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Tranche C Term Loans 2.00%
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Revolving Loans 1.50%
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; provided that the Applicable Base Rate Margin set forth above with respect to
Tranche A Term Loans and Revolving Loans shall be reduced by the Pricing
Reduction, if any.
"Applicable Eurodollar Rate Margin" means, with respect to the applicable
Loan set forth below, the corresponding per annum rate set forth below:
=========================================== ===================================
LOAN APPLICABLE EURODOLLAR
RATE MARGIN
=========================================== ===================================
Tranche A Term Loans 2.50%
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Tranche B Term Loans 3.00%
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Tranche C Term Loans 3.00%
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Revolving Loans 2.50%
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; provided that the Applicable Eurodollar Rate Margin set forth above with
respect to Tranche A Term Loans and Revolving Loans shall be reduced by the
Pricing Reduction, if any.
"Arranging Agent" and "Arranging Agents" have the respective meanings
assigned to such terms in the introduction to this Agreement; provided that
after the Effective Date, Arranging Agents shall only mean and include GSCP.
"Articles of Merger" means the Articles of Merger dated as of November 6,
1996 by and between Acquisition Sub and Payco to be filed with the Secretary of
State of Wisconsin, as in effect on the Closing Date and as such articles may
heretofore have been or hereafter may be amended, restated, supplemented or
otherwise modified from time to time thereafter to the extent permitted under
subsection 7.12A.
"Asset Sale" means the sale (including in any sale-leaseback transaction)
by Company or any of its Subsidiaries to any Person (other than Company or any
of its Wholly Owned Subsidiaries) of (i) any of the stock of any of Company's
Subsidiaries (other than the sale of stock of Union during such times as such
shares constitute Margin Stock), (ii) all or substantially all of the assets of
any division or line of business of Company or any of its Subsidiaries, or (iii)
any other assets other than sales of assets in the ordinary course of business
and sales of obsolete equipment, excluding any such other assets to the extent
that the aggregate value of such assets sold in any single transaction or
transactions is equal to $250,000 or less in any one Fiscal Year; provided that
in no event shall a sale of all or any portion of a receivables portfolio be
deemed a sale of assets in the ordinary course of business.
"Assignment Agreement" means an assignment agreement in substantially the
form of Exhibit XIII annexed hereto or in such other form as may be approved by
Co-Administrative Agents.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Base Rate" means, at any time, the higher of (x) the Prime Rate or (y) the
rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate.
"Base Rate Loans" means Loans bearing interest at rates determined by
reference to the Base Rate as provided in subsection 2.2A.
"Business Day" means (i) for all purposes other than as covered by clause
(ii) below, any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of New York or is a day on which banking
institutions located in such state are authorized or required by law or other
governmental action to close, and (ii) with respect to all notices,
determinations, fundings, issuances and payments in connection with the Adjusted
Eurodollar Rate or any Eurodollar Rate Loans, any day that is a Business Day
described in clause (i) above and that is also (a) a day for trading by and
between banks in Dollar deposits in the London interbank market and (b) a day on
which banking institutions are open for business in London.
"Capital Lease" means, as applied to any Person, any lease of any property
(whether real, personal or mixed) by that Person as lessee that, in conformity
with GAAP, is accounted for as a capital lease on the balance sheet of that
Person.
"Cash" means money, currency or a credit balance in a Deposit Account.
"Cash Equivalents" means (i) marketable securities issued or directly and
unconditionally guaranteed by the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having the highest rating obtainable
from either Standard & Poor's Rating Service ("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 or bankers' acceptances maturing within one year from the date of
acquisition 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, issued by any Lender or any
commercial bank organized under the laws of the United States of America or any
state thereof or the District of Columbia having unimpaired capital and surplus
of not less than $250,000,000 (each Lender and each such commercial bank being
herein called a "CASH EQUIVALENT BANK"); and (v) Eurodollar time deposits having
a maturity of less than one year purchased directly from any Cash Equivalent
Bank (provided such deposit is with such Cash Equivalent Bank or any other Cash
Equivalent Bank).
"Cash Proceeds" means, with respect to any Asset Sale, Cash payments
(including any Cash received by way of deferred payment pursuant to, or
monetization of, a note receivable or otherwise, but only as and when so
received) received by Company or any of its Subsidiaries from such Asset Sale.
"Certificate re Non-Bank Status" means a certificate substantially in the
form of Exhibit XV annexed hereto delivered by a Lender to Chase
Co-Administrative Agent pursuant to subsection 2.7B(iii).
"Chase" means The Chase Manhattan Bank and its successors, including,
without limitation, its successors by merger.
"Chase Co-Administrative Agent" means Chase, in its capacity as a
Co-Administrative Agent, and any successor to Chase in such capacity appointed
pursuant to subsection 9.5A.
"Closing Date" means November 6, 1996.
"Co-Administrative Agent" and "Co-Administrative Agents" have the
respective meanings assigned to such terms in the introduction to this Agreement
and also mean and include any successor Co-Administrative Agent appointed
pursuant to subsection 9.5A.
"Collateral" means all of the properties and assets (including capital
stock) in which Liens are purported to be granted by the Collateral Documents.
"Collateral Account" has the meaning assigned to that term in the
Collateral Account Agreement.
"Collateral Account Agreement" means the Collateral Account Agreement
executed and delivered by Company and Chase Co-Administrative Agent on the
Closing Date, substantially in the form of Exhibit XVI annexed hereto, pursuant
to which Company may pledge cash to Chase Co-Administrative Agent to secure the
obligations of Company to reimburse Issuing Lenders for payments made under one
or more Letters of Credit as such Collateral Account Agreement may heretofore
have been or hereafter may be amended, restated, supplemented or otherwise
modified from time to time.
"Collateral Agent" means SunTrust, in its capacity as Collateral Agent, and
any successor to SunTrust, in such capacity appointed pursuant to subsection
9.5A.
"Collateral Documents" means the Pledge Agreement, the Security Agreement,
the Limited Partnership Security Agreement, the Trademark Security Agreement,
the Collateral Account Agreement, the Mortgages, the Deeds of Trust, and any
other documents, instruments or agreements delivered by any Loan Party pursuant
to this Agreement or any of the other Loan Documents in order to grant or
perfect liens on any assets of such Loan Party as security for the Obligations.
"Commercial Letter of Credit" means any letter of credit or similar
instrument issued for the purpose of providing the primary payment mechanism in
connection with the purchase of any materials, goods or services by Company or
any of its Subsidiaries in the ordinary course of business of Company or such
Subsidiary.
"Commitments" means (i) with respect to the period prior to the Effective
Date, the commitments of Lenders to make Loans as set forth in subsection 2.1A
of the Existing Credit Agreement, and (ii) thereafter, the commitments of
Lenders to make Loans as set forth in subsection 2.1A of this Agreement.
"Company Common Stock" means, collectively, Company's (i) Voting Common
Stock, par value $0.01 per share, (ii) Class A Non-Voting Common Stock, par
value $0.01 per share, (iii) Class B Non-Voting Common Stock, par value $0.01
per share, and (iv) Class C Non-Voting Common Stock, par value $0.01 per share.
"Company Preferred Stock" means Company's 8.0% Non-Voting Cumulative
Redeemable Exchangeable Preferred Stock outstanding as of the Closing Date in
the approximate amount of $10,800,000, together with any shares of such
preferred stock issued after the Closing Date as dividends thereon permitted
under subsection 7.5 of the Existing Credit Agreement or under subsection 7.5 of
this Agreement.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit X annexed hereto delivered to Chase Co-Administrative Agent by Company
pursuant to subsection 6.1(iv).
"Condemnation Proceeds" has the meaning assigned to that term in subsection
2.4B(iii)(d).
"Consolidated Capital Expenditures" means, for any period, the sum of (i)
the aggregate of all expenditures (whether paid in cash or other consideration
or accrued as a liability and including that portion of Capital Leases which is
capitalized on the consolidated balance sheet of Company and its Subsidiaries)
by Company and its Subsidiaries during that period that, in conformity with
GAAP, are included in "purchases of property, plant or equipment" or comparable
items reflected in the consolidated statement of cash flows of Company and its
Subsidiaries plus (ii) to the extent not covered by clause (i) of this
definition, the aggregate of all expenditures by Company and its Subsidiaries
during that period to acquire (by purchase or otherwise) the business, property
(except inventory, other than any receivables portfolios, in the ordinary course
of business) or fixed assets of any Person, or stock or other evidence of
beneficial ownership of any Person that, as a result of the acquisition of such
stock or other evidence, becomes a Subsidiary of Company.
"Consolidated Current Assets" means, as at any date of determination, the
total assets of Company and its Subsidiaries on a consolidated basis which may
properly be classified as current assets in conformity with GAAP, excluding Cash
and Cash Equivalents.
"Consolidated Current Liabilities" means, as at any date of determination,
the total liabilities of Company and its Subsidiaries on a consolidated basis
which may properly be classified as current liabilities in conformity with GAAP.
"Consolidated EBITDA" means, for any period, (i) the sum of the amounts for
such period of (a) Consolidated Net Income, (b) Consolidated Interest Expense,
(c) provisions for taxes based on income, (d) total depreciation expense, (e)
total amortization expense, (f) other non-cash items reducing Consolidated Net
Income, (g) to the extent deducted in determining Consolidated Net Income,
charges incurred during 1998 not in excess of $1,500,000 with respect to the
costs of implementing a new computer system at Payco and duplicative costs of
operating the old system concurrently, (h) to the extent deducted in determining
Consolidated Net Income, any non-recurring charges incurred after the Closing
Date in connection with the resolution of litigation of Company and its
Subsidiaries disclosed in that certain Offering Circular dated October 31, 1996
prepared in connection with the offering of the Subordinated Notes, and (i) to
the extent deducted in determining Consolidated Net Income for such period, any
non-recurring charges not to exceed $20 million in the aggregate incurred by
Union and/or its Subsidiaries during the period from January 1, 1998 through the
Union Merger Date to the extent such charges were incurred as a result of the
Union Acquisition (including approximately $14.5 million of "change of control"
payments to be paid by Union to employees and directors of Union in connection
with the Union Acquisition and approximately $5.5 million of fees and expenses)
less (ii) the sum of the amounts for such period of (a) other non-cash items
increasing Consolidated Net Income and (b) to the extent not otherwise deducted
in determining Consolidated Net Income, payments made during such period with
respect to Earn Out Agreements permitted hereunder and Management Fees, all of
the foregoing as determined on a consolidated basis for Company and its
Subsidiaries in conformity with GAAP.
"Consolidated Excess Cash Flow" means, for any period, an amount (if
positive) equal to (i) the sum, without duplication, of the amounts for such
period of (a) Consolidated EBITDA and (b) the Consolidated Working Capital
Adjustment minus (ii) the sum, without duplication, of the amounts for such
period of (a) voluntary and scheduled cash repayments of Consolidated Total Debt
(excluding repayments of Revolving Loans except to the extent the Revolving Loan
Commitments are permanently reduced in connection with such repayments), (b)
Consolidated Capital Expenditures (net of any proceeds of any related financings
with respect to such expenditures), (c) Consolidated Interest Expense, (d) the
provision for current taxes based on income of Company and its Subsidiaries and
payable in cash with respect to such period, and (e) to the extent not otherwise
deducted in calculating Consolidated Excess Cash Flow, cash payments made during
such period with respect to non-recurring charges described in subdivisions (g),
(h) and (i) of the definition of Consolidated EBITDA.
"Consolidated Fixed Charges" means, for any period, an amount equal to the
sum of the amounts for such period of (i) scheduled cash repayments of principal
of all Indebtedness, as reduced by prepayments previously made, (ii)
Consolidated Interest Expense, (iii) Consolidated Maintenance Capital
Expenditures and (iv) the portion of taxes based on income actually paid in
cash.
"Consolidated Interest Expense" means, for any period, total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP) payable in cash of Company and its Subsidiaries on a consolidated
basis with respect to all outstanding Indebtedness of Company and its
Subsidiaries, including, without limitation, all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net costs under Interest Rate Agreements, but
excluding, however, any amounts referred to in subsection 2.3 of this Agreement
or subsection 2.3 of the Existing Credit Agreement payable to Agents and Lenders
on or before the Effective Date or the Closing Date, respectively.
"Consolidated Maintenance Capital Expenditures" means, for any period, all
Consolidated Capital Expenditures for such period other than Consolidated
Capital Expenditures expended to make Permitted Acquisitions or Permitted
Portfolio Acquisitions.
"Consolidated Net Income" means, for any period, the net income (or loss)
of Company and its Subsidiaries on a consolidated basis for such period taken as
a single accounting period determined in conformity with GAAP; provided that
there shall be excluded (i) the income (or loss) of any Person (other than a
Subsidiary of Company) in which any other Person (other than Company or any of
its Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Company or any of its
Subsidiaries by such Person during such period, (ii) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of Company or is merged
into or consolidated with Company or any of its Subsidiaries or that Person's
assets are acquired by Company or any of its Subsidiaries, (iii) the income of
any Subsidiary of Company to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary, (iv) any after-tax gains or losses attributable
to Asset Sales, and (v) (to the extent not included in clauses (i) through (iv)
above) any net extraordinary gains or net non-cash extraordinary losses.
"Consolidated Total Debt" means, as at any date of determination, the
aggregate stated balance sheet amount of all outstanding Indebtedness of Company
and its Subsidiaries on a consolidated basis as determined in conformity with
GAAP.
"Consolidated Working Capital" means, as at any date of determination, the
excess of Consolidated Current Assets over Consolidated Current Liabilities.
"Consolidated Working Capital Adjustment" means, for any period on a
consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or is
less than) Consolidated Working Capital as of the end of such period.
"Contingent Obligation" means, as applied to any Person, any direct or
indirect liability, contingent or otherwise, of that Person (i) with respect to
any Indebtedness, lease, dividend or other obligation of another if the primary
purpose or intent thereof by the Person incurring the Contingent Obligation is
to provide assurance to the obligee of such obligation of another that such
obligation of another will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such obligation
will be protected (in whole or in part) against loss in respect thereof, (ii)
with respect to any letter of credit issued for the account of that Person or as
to which that Person is otherwise liable for reimbursement of drawings, or (iii)
under Interest Rate Agreements. Contingent Obligations shall include, without
limitation, (a) the direct or indirect guaranty, endorsement (otherwise than for
collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the obligation
of another, (b) the obligation to make take-or-pay or similar payments if
required regardless of non-performance by any other party or parties to an
agreement, and (c) any liability of such Person for the obligation of another
through any agreement (contingent or otherwise) (x) to purchase, repurchase or
otherwise acquire such obligation or any security therefor, or to provide funds
for the payment or discharge of such obligation (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise) or (y) to
maintain the solvency or any balance sheet item, level of income or financial
condition of another if, in the case of any agreement described under subclauses
(x) or (y) of this sentence, the primary purpose or intent thereof is as
described in the preceding sentence. The amount of any Contingent Obligation
shall be equal to the amount of the obligation so guaranteed or otherwise
supported or, if less, the amount to which such Contingent Obligation is
specifically limited.
"Continuing Director" shall mean, as of any date of determination, any
member of the Board of Directors of Company who (i) was a member of such Board
of Directors on the Closing Date or (ii) was nominated for election or elected
to such Board of Directors with the affirmative vote of the MDC Entities.
"Contractual Obligation" means, as applied to any Person, any provision of
any Security issued by that Person or of any material indenture, mortgage, deed
of trust, contract, undertaking, agreement or other instrument to which that
Person is a party or by which it or any of its properties is bound or to which
it or any of its properties is subject.
"Corporate Loan Party" means any Loan Party which is a corporation.
"CSI" means Chase Securities Inc. and its successors and assigns,
including, without limitation, its successors by merger.
"Custodian" means ChaseMellon Shareholder Services, L.C.C.
"Debt Collection Laws" means the Fair Debt Collection Practices Act and any
similar state laws relating to the collection of consumer debt.
"Deed of Trust" means any deed of trust granted by Company or any of its
Subsidiaries in any interest in real property to secure the Obligations, as such
deed of trust may be amended, restated, supplemented or otherwise modified from
time to time.
"Defaulting Lender" means any Lender with respect to which a Lender Default
is in effect.
"Delayed-Draw Term Loans" means a portion of the Tranche C Term Loans, in
an aggregate amount equal to the product of (x) $31.50 and (y) those shares of
Union Common Stock not purchased pursuant to the Tender Offer, that may be
borrowed by Company on the Union Merger Date.
"Deposit Account" means a demand, time, savings, passbook or like account
with a bank, savings and loan association, credit union or like organization,
other than an account evidenced by a negotiable certificate of deposit.
"Dollars" and the sign "$" mean the lawful money of the United States of
America.
"Earn Out Agreement" shall mean (i) the agreements set forth in Schedule
7.4(iv)(a) hereto and (ii) any other agreement entered into after the Closing
Date by Company to pay the seller or sellers of any Person or assets acquired in
accordance with the provisions of subsection 7.7(v) at any time following the
consummation of such acquisition by reference to the financial performance of
Company or the Person or assets acquired.
"Effective Date" means the date on or before February 15, 1998 on which the
conditions precedent set forth in subsections 4.2 and 4.4 shall be satisfied or
waived in accordance with the terms hereof.
"Eligible Assignee" means (i) (a) a commercial bank organized under the
laws of the United States or any state thereof; (b) a commercial bank organized
under the laws of any other country or a political subdivision thereof; provided
that (x) such bank is acting through a branch or agency located in the United
States or (y) such bank is organized under the laws of a country that is a
member of the Organization for Economic Cooperation and Development or a
political subdivision of such country; (c) any other entity which is an
"accredited investor" (as defined in Regulation D under the Securities Act)
which extends credit or buys loans as one of its businesses including, but not
limited to, insurance companies, mutual funds and lease financing companies; and
(d) any other financial institution or fund (whether a corporation, partnership,
trust or other entity) that is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its business and has
combined capital and surplus or net assets of at least $100,000,000, in each
case (under clauses (a) through (d) above) that is reasonably acceptable to
Co-Administrative Agents; and (ii) any Lender and any Affiliate of any Lender;
provided that no Affiliate of Company shall be an Eligible Assignee.
"Employee Benefit Plan" means any "employee benefit plan" as defined in
Section 3(3) of ERISA which is subject to ERISA and which is maintained or
contributed to by Company or any of its ERISA Affiliates.
"Environmental Claim" means any written accusation, allegation, notice of
violation, claim, demand, abatement order or other order or direction
(conditional or otherwise) by any governmental authority or any Person for any
damage, including, without limitation, personal injury (including sickness,
disease or death), tangible or intangible property damage, contribution,
indemnity, indirect or consequential damages, damage to the environment,
nuisance, pollution, contamination or other adverse effects on the environment,
or for fines, penalties or restrictions, in each case relating to, resulting
from or in connection with Hazardous Materials and relating to Company, any of
its Subsidiaries, any of their respective Affiliates that are directly or
indirectly controlled by Company, or any Facility.
"Environmental Laws" means all laws, statutes, ordinances, orders, rules,
regulations, plans, policies or decrees and the like relating to (i)
environmental matters, including, without limitation, those relating to fines,
injunctions, penalties, damages, contribution, cost recovery compensation,
losses or injuries resulting from the Release or threatened Release of Hazardous
Materials, (ii) the generation, use, storage, transportation or disposal of
Hazardous Materials, or (iii) occupational safety and health, public health and
safety, industrial hygiene or protection of wetlands, in any manner applicable
to Company or any of its Subsidiaries or any of their respective properties,
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. ss. 9601 et seq.), the Hazardous
Materials Transportation Act (49 U.S.C. ss. 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.), the Federal Water
Pollution Control Act ( 33 U.S.C. ss. 1251 et seq.), the Clean Air Act (42
U.S.C. ss. 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. ss. 2601
et seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C.
ss.136 et seq.), the Occupational Safety and Health Act (29 U.S.C. ss. 651 et
seq.) and the Emergency Planning and Community Right-to-Know Act (42 U.S.C. ss.
11001 et seq.), each as amended or supplemented, and any analogous future or
present local, state and federal statutes and regulations promulgated pursuant
thereto, each as in effect as of the date of determination.
"Equity Proceeds" means the cash proceeds (net of underwriting discounts
and commissions and other reasonable costs associated therewith) from the
issuance of any equity Securities of Company after the Effective Date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
"ERISA Affiliate" means, as applied to any Person, (i) any corporation
which is a member of a controlled group of corporations within the meaning of
Section 414(b) of the Internal Revenue Code of which that Person is a member;
(ii) any trade or business (whether or not incorporated) which is a member of a
group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii)
solely for purposes of obligations under Section 412 of the Internal Revenue
Code or under the applicable sections set forth in Section 414(t)(2) of the
Internal Revenue Code, any member of an affiliated service group within the
meaning of Section 414(m) or (o) of the Internal Revenue Code of which that
Person, any corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member.
"ERISA Event" means (i) a "reportable event" within the meaning of Section
4043(c) of ERISA and the regulations issued thereunder with respect to any
Pension Plan (excluding those for which the provision for 30-day notice to the
PBGC has been waived by regulation); (ii) the failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the
Internal Revenue Code) or the failure to make by its due date a required
installment under Section 412(m) of the Internal Revenue Code with respect to
any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan
pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such
plan in a distress termination described in Section 4041(c) of ERISA; (iv) the
withdrawal by Company or any of its ERISA Affiliates from any Pension Plan with
two or more contributing sponsors or the termination of any such Pension Plan
resulting, in either case, in liability pursuant to Section 4063 or 4064 of
ERISA, respectively; (v) the institution by the PBGC of proceedings to terminate
any Pension Plan pursuant to Section 4042 of ERISA; (vi) the imposition of
liability on Company or any of its ERISA Affiliates pursuant to Section 4062(e)
or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA;
(vii) the withdrawal by Company or any of its ERISA Affiliates in a complete or
partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from
any Multiemployer Plan resulting in withdrawal liability pursuant to Section
4201 of ERISA, or the receipt by Company or any of its ERISA Affiliates of
written notice from any Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to
terminate or has terminated under Section 4042 of ERISA or under Section 4041A
of ERISA if such termination would result in liability to Company or any of its
ERISA Affiliates; (viii) the imposition on Company or any of its ERISA
Affiliates of fines, penalties or taxes under Chapter 43 of the Internal Revenue
Code or under Section 409 or 502(c), (i) or (l) or 4071 of ERISA in respect of
any Employee Benefit Plan; (ix) the failure of any Pension Plan (or any other
Employee Benefit Plan intended to be qualified under Section 401(a) of the
Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue
Code, or the failure of any trust forming part of any Pension Plan to qualify
for exemption from taxation under Section 501(a) of the Internal Revenue Code;
or (x) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan.
"Eurodollar Rate Loans" means Loans bearing interest at rates determined by
reference to the Adjusted Eurodollar Rate as provided in subsection 2.2A.
"Event of Default" means each of the events set forth in Section 8.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor statute.
"Existing Credit Agreement" has the meaning assigned to that term in the
Recitals to this Agreement.
"Existing Lenders" has the meaning assigned to that term in the Recitals to
this Agreement.
"Existing Letters of Credit" has the meaning assigned to that term in
subsection 3.1.
"Existing Loan" or "Existing Loans" means, as the context requires, one or
more of the Existing Tranche A Term Loans, Existing Tranche B Term Loans or
Existing Revolving Loans or any combination thereof.
"Existing Revolving Loans" means, with respect to any Existing Lender, the
Revolving Loans under, as defined in, the Existing Credit Agreement held by such
Existing Lender, in the principal amount of such Loans outstanding immediately
prior to the Effective Date.
"Existing Seller Note" means that certain 9% Non-Negotiable Subordinated
Note issued by Outsourcing Solutions Incorporated to Alan Miller in the
principal amount of $5,000,000, due July 10, 2001, as in effect on the Closing
Date and as such note may heretofore have been or hereafter may be amended,
restated, supplemented or otherwise modified from time to time thereafter to the
extent permitted under subsection 7.12B.
"Existing Tranche A Term Loan" means, with respect to any Existing Lender,
the Tranche A Term Loan under, as defined in, the Existing Credit Agreement held
by such Existing Lender, in the principal amount of such Loan outstanding
immediately prior to the Effective Date, and "EXISTING TRANCHE A TERM LOANS"
means such Loans of all Existing Lenders, collectively.
"Existing Tranche B Term Loan" means, with respect to any Existing Lender,
the Tranche B Term Loan under, as defined in, the Existing Credit Agreement held
by such Existing Lender, in the principal amount of such Loan outstanding
immediately prior to the Effective Date, and "EXISTING TRANCHE B TERM LOANS"
means such Loans of all Existing Lenders, collectively.
"Facilities" means any and all real property (including, without
limitation, all buildings, fixtures or other improvements located thereon) now,
hereafter or heretofore owned, leased, operated or used by Company or any of its
Subsidiaries (but only as to portions of buildings actually leased or used) or
any of their respective predecessors or any of their respective Affiliates that
are directly or indirectly controlled by Company.
"Fair Debt Collection Practices Act" means the Federal Fair Debt Collection
Practices Act, as amended from time to time, and any successor statute.
"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by Chase Co-Administrative Agent from three Federal funds
brokers of recognized standing selected by Chase Co-Administrative Agent.
"First Amendment Date" means October 8, 1997.
"Fiscal Quarter" means a fiscal quarter of a Fiscal Year.
"Fiscal Year" means the fiscal year of Company and its Subsidiaries ending
on December 31 of each calendar year.
"Forward Flow Contract" shall mean (i) the agreement set forth in Schedule
7.4(iv)(b) hereto and (ii) any other agreement entered into after the Closing
Date by Company or any of its Subsidiaries to purchase receivables portfolios
from time to time meeting the criteria enumerated therein.
"Funding and Payment Office" means the office of Chase Co-Administrative
Agent and Swing Line Lender located at 270 Park Avenue, New York, New York 10017
or such offices of Chase Co-Administrative Agent or any successor Chase
Co-Administrative Agent specified by Chase Co-Administrative Agent or such
successor Chase Co-Administrative Agent in a written notice to Loan Parties and
Lenders).
"Funding Date" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application thereof set
forth in subsection 1.2, generally accepted accounting principles set forth in
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, in each case as the same are applicable to the circumstances as of
the date of determination and specifically, terms used herein applicable to
Company and its Subsidiaries defined by reference to GAAP shall give effect to
the subtraction of minority interests.
"Governmental Acts" has the meaning assigned to that term in subsection
3.5.
"Governmental Authorization" means any permit, license, authorization,
plan, directive, consent order or consent decree of or from any federal, state
or local governmental authority, agency or court.
"GSCP" means Goldman Sachs Credit Partners L.P., a Bermuda limited
partnership.
"Guaranty" means the Subsidiary Guaranty and any other guaranty of the
Obligations.
"Guarantors" means the Subsidiary Guarantors.
"Hazardous Materials" means (i) any chemical, material or substance defined
as or included in the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "extremely hazardous waste", "restricted hazardous
waste", "infectious waste", "toxic substances" or any other formulations
intended to define, list or classify substances by reason of deleterious
properties such as ignitability, corrosivity, reactivity, carcinogenicity,
toxicity, reproductive toxicity, "TCLP toxicity" or "EP toxicity" or words of
similar import under any applicable Environmental Laws; (ii) any oil, petroleum,
petroleum fraction or petroleum derived substance; (iii) any drilling fluids,
produced waters and other wastes associated with the exploration, development or
production of crude oil, natural gas or geothermal resources; (iv) any flammable
substances or explosives; (v) any radioactive materials; (vi) asbestos in any
form; (vii) urea formaldehyde foam insulation; (viii) electrical equipment which
contains any oil or dielectric fluid containing levels of polychlorinated
biphenyls in excess of fifty parts per million; (ix) pesticides; and (x) any
other chemical, material or substance, exposure to which is prohibited, limited
or regulated by any governmental authority.
"Immaterial Subsidiaries" means, with respect to any Person, any Subsidiary
or Subsidiaries of such Person the assets of which constitute, individually or
in the aggregate, less than 5% of the total assets of such Person and its
Subsidiaries.
"Indebtedness" means, as applied to any Person, (i) all indebtedness for
borrowed money, (ii) that portion of obligations with respect to Capital Leases
that is properly classified as a liability on a balance sheet in conformity with
GAAP, (iii) notes payable and drafts accepted representing extensions of credit
whether or not representing obligations for borrowed money (other than accounts
payable incurred in the ordinary course of business and accrued expenses
incurred in the ordinary course of business), (iv) any obligation owed for all
or any part of the deferred purchase price of property or services (excluding
any such obligations incurred under ERISA or under Earn Out Agreements), which
purchase price is (a) due more than six months from the date of incurrence of
the obligation in respect thereof or (b) evidenced by a note or similar written
instrument, and (v) all indebtedness secured by any Lien on any property or
asset owned or held by that Person regardless of whether the indebtedness
secured thereby shall have been assumed by that Person or is nonrecourse to the
credit of that Person. Obligations under Interest Rate Agreements, Currency
Agreements and Earn Out Agreements constitute Contingent Obligations and not
Indebtedness.
"Indemnitee" has the meaning assigned to that term in subsection 10.3.
"Insurance Proceeds" has the meaning assigned to that term in subsection
2.4B(iii)(d).
"Interest Coverage Ratio" means, as of any date of determination, the ratio
of Consolidated EBITDA to Consolidated Interest Expense, in each case calculated
for the 12 consecutive months ending on the last day of the month preceding such
date of determination.
"Interest Payment Date" means (i) with respect to any Base Rate Loan, each
January 15, April 15, July 15 and October 15 of each year, commencing on January
15, 1997 and (ii) with respect to any Eurodollar Rate Loan, the last day of each
Interest Period applicable to such Loan; provided that in the case of each
Interest Period of longer than three months, "Interest Payment Date" shall also
include the date that is three months after the commencement of such Interest
Period.
"Interest Period" has the meaning assigned to that term in subsection 2.2B.
"Interest Rate Agreement" means any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement or other similar agreement or
arrangement designed to hedge Company or any of its Subsidiaries against
fluctuations in interest rates.
"Interest Rate Determination Date" means each date for calculating the
Adjusted Eurodollar Rate, for purposes of determining the interest rate in
respect of an Interest Period. The Interest Rate Determination Date in respect
of calculating the Adjusted Eurodollar Rate shall be the second Business Day
prior to the first day of the related Interest Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
to the date hereof and from time to time hereafter.
"Investment" means (i) any direct or indirect purchase or other acquisition
by Company or any of its Subsidiaries of, or of a beneficial interest in, stock
or other Securities of any other Person (other than a Person that, prior to such
purchase or acquisition, was a Wholly Owned Subsidiary of Company), or (ii) any
direct or indirect loan, advance (other than advances to employees for moving,
entertainment and travel expenses, drawing accounts and similar expenditures in
the ordinary course of business) or capital contribution by Company or any of
its Subsidiaries to any other Person other than a Wholly Owned Subsidiary of
Company, including all indebtedness and accounts receivable acquired from that
other Person that are not current assets or did not arise from sales to that
other Person in the ordinary course of business; provided, however, that the
term "Investment" shall not include (a) current trade and customer accounts
receivable for goods furnished or services rendered in the ordinary course of
business and payable in accordance with customary trade terms, (b) advances and
prepayments to suppliers for goods and services in the ordinary course of
business, (c) stock or other securities acquired in connection with the
satisfaction or enforcement of Indebtedness or claims due or owing to Company or
any of its Subsidiaries or as security for any such Indebtedness or claims, (d)
Cash held in Deposit Accounts with banks and trust companies (other than
Lenders) not exceeding $2,000,000 in aggregate amount, (e) Cash held in Deposit
Accounts with banks and trust companies (other than Lenders) in which amounts
received from credit card issuers are concentrated and held to be swept to
Company's operating accounts with a Lender on a daily basis, (f) Cash held in
any Deposit Account with a Lender and (g) shares in a mutual fund that invests
solely in Cash Equivalents. The amount of any Investment shall be the original
cost of such Investment plus the cost of all additions thereto, without any
adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment.
"Issuing Lender" means, with respect to any Letter of Credit, the Lender
which agrees or is otherwise obligated to issue such Letter of Credit,
determined as provided in subsection 3.1B(ii).
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; provided
that in no event shall any corporate Subsidiary of any Person be considered to
be a Joint Venture to which such Person is a party.
"Lender" and "Lenders" means the persons identified as "Lenders" and listed
on the signature pages of this Agreement, together with their successors and
permitted assigns pursuant to subsection 10.1, and the term "Lenders" shall
include Swing Line Lender unless the context otherwise requires provided that
the term "Lenders", when used in the context of a particular Commitment, shall
mean Lenders having that Commitment. To the extent the context so requires, the
terms "LENDER" and "LENDERS" shall include "Lenders" under, and as defined in,
the Existing Credit Agreement.
"Lender Default" shall mean (i) the refusal (which has not been retracted)
of a Lender to make available its portion of any Loans (including any Revolving
Loans made to pay Refunded Swing Line Loans or to reimburse drawings under
Letters of Credit) in accordance with subsection 2.1A(iii) or its portion of any
unreimbursed drawing or payment under a Letter of Credit in accordance with
subsection 3.3C or (ii) a Lender having notified Company and/or Chase
Co-Administrative Agent in writing that it does not intend to comply with its
obligations under subsection 2.1 or subsections 3.1C, 3.3B or 3.3C, in any such
case as a result of any takeover of such Lender by any regulatory authority or
agency.
"Lending Office" means, as to any Lender, the office or offices of such
Lender specified as its "Lending Office" on Schedule 2.1, or such other office
or offices as such Lender may from time to time notify Company and Chase
Co-Administrative Agent.
"Letter of Credit" or "Letters of Credit" means Commercial Letters of
Credit and Standby Letters of Credit issued or to be issued by Issuing Lenders
for the account of Company pursuant to subsection 3.1.
"Letter of Credit Usage" means, as at any date of determination, the sum of
(i) the maximum aggregate amount which is or at any time thereafter may become
available for drawing under all Letters of Credit then outstanding plus (ii) the
aggregate amount of all drawings under Letters of Credit honored by Issuing
Lenders and not theretofore reimbursed by Company (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to subsection
3.3B).
"Leverage Ratio" means, as of any date of determination, the ratio of
Consolidated Total Debt, as of the date of determination, to Consolidated
EBITDA, for the 12 consecutive months ending on the last day of such month, in
each case, calculated for Company and its Subsidiaries on a consolidated basis
in accordance with GAAP and in accordance with the provisions of subsection
7.6E.
"Lien" means any lien, mortgage, pledge, assignment, security interest,
fixed or floating charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature thereof, and
any agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"Limited Partnership Security Agreement" means the Limited Partnership
Security Agreement entered into by and among Company, certain Subsidiary
Guarantors and Collateral Agent dated as of the Closing Date, substantially in
the form of Exhibit IX-B annexed hereto, as such Limited Partnership Security
Agreement may heretofore have been or hereafter may be amended, restated,
supplemented or otherwise modified from time to time.
"Loan" or "Loans" means, as the context requires, one or more of the
Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans, Revolving
Loans and Swing Line Loans or any combination thereof.
"Loan Documents" means this Agreement, the Notes, the Letters of Credit
(and any applications for, or reimbursement agreements or other documents or
certificates executed by Company in favor of an, Issuing Lender relating to, the
Letters of Credit), the Guaranty, the Collateral Documents, and the Second
Acknowledgement and Consent.
"Loan Parties" means Company and each Subsidiary Guarantor.
"Management Fees" means the fees payable by Company pursuant to the MDC
Advisory Services Agreement and the HBR Services Agreement.
"Margin Stock" has the meaning assigned to that term in Regulation U of the
Board of Governors of the Federal Reserve System as in effect from time to time.
"Material Adverse Effect" means (i) a material adverse effect upon the
business, operations, properties, assets, condition (financial or otherwise) or
prospects of Company and its Subsidiaries, taken as a whole, (ii) the material
impairment of the ability of any Loan Party to perform the Obligations and (iii)
a material adverse effect upon the legality, validity, binding effect or
enforceability against a Loan Party of a Loan Document to which it is a party;
provided that Company's consummation of the Payco Acquisition in accordance with
the terms of the Payco Acquisition Agreement or the Union Acquisition in
accordance with the terms of the Union Acquisition Agreement shall not be deemed
to have a Material Adverse Effect for purposes of subsection 5.4.
"MDC Advisory Services Agreement" means that certain Advisory Services
Agreement dated as of September 21, 1995, by and between Company and MDC
Management Company III, L.P., as in effect on the Closing Date and as such
agreement may heretofore have been or hereafter may be amended, restated,
supplemented or otherwise modified from time to time thereafter to the extent
permitted under subsection 7.12A.
"MDC Entities" means McCown De Leeuw & Co. III, L.P., a California limited
partnership, McCown De Leeuw & Co. III (Europe), L.P., a Bermuda limited
partnership, McCown De Leeuw & Co. III (Asia), L.P., a Bermuda limited
partnership and Gamma Fund LLC, a California limited liability company.
"Merger Sub" has the meaning assigned to that term in the Recitals to this
Agreement.
"Minimum Union Shares" means 66-2/3% of the outstanding shares of Union
Common Stock, on a fully-diluted basis.
"Mortgage" means any mortgage or legal charge granted by Company or any of
its Subsidiaries in any interest in real property to secure the Obligations, as
such mortgage may be amended, restated, supplemented or otherwise modified from
time to time.
"Multiemployer Plan" means a "multiemployer plan", as defined in Section
4001(a)(3) of ERISA which is subject to Title IV of ERISA, to which Company or
any of its ERISA Affiliates is contributing or to which Company or any of its
ERISA Affiliates has an obligation to contribute.
"Net Cash Proceeds" means, with respect to any Asset Sale, Cash Proceeds of
such Asset Sale net of bona fide direct costs of sale including, without
limitation, (i) income taxes reasonably estimated to be actually payable as a
result of such Asset Sale within one year of the date of receipt of such Cash
Proceeds, (ii) transfer, sales, use and other taxes payable in connection with
such Asset Sale, (iii) payment of the outstanding principal amount of, premium
or penalty, if any, and interest on any Indebtedness (other than the Loans) that
is secured by a Lien on the stock or assets in question and that is required to
be repaid under the terms thereof as a result of such Asset Sale, and (iv)
broker's commissions and reasonable fees and expenses of counsel and all other
professionals in connection with such Asset Sale.
"New Lender" means any Lender which is a party to this Agreement as of the
Effective Date and which is not an Existing Lender.
"Non-Defaulting Lender" means and includes each Lender other than a
Defaulting Lender.
"Notes" means one or more of the Term Notes, Revolving Notes or Swing Line
Note or any combination thereof.
"Notice of Borrowing" means (i) with respect to an Existing Loan, the
Notice of Borrowing under the Existing Credit Agreement delivered by Company
with respect to such Existing Loan and (ii) with respect to Loans to be made
under subsection 2.1A(ii), 2.1A(iii) or 2.1A(iv), a notice substantially in the
form of Exhibit I annexed hereto delivered by Company to Chase Co-Administrative
Agent pursuant to subsection 2.1B with respect to a proposed borrowing.
"Notice of Conversion/Continuation" means a notice substantially in the
form of Exhibit II annexed hereto delivered by Company to Chase
Co-Administrative Agent pursuant to subsection 2.2D with respect to a proposed
conversion or continuation of the applicable basis for determining the interest
rate with respect to the Loans specified therein.
"Notice of Issuance of Letter of Credit" means a notice in the form of
Exhibit III annexed hereto delivered by Company to Chase Co-Administrative Agent
pursuant to subsection 3.1B(i) with respect to the proposed issuance of a Letter
of Credit.
"NSA" has the meaning assigned to that term in the Recitals to this
Agreement.
"NSA Acquired Assets" has the meaning assigned to that term in the Recitals
to this Agreement.
"NSA Acquisition" means the transactions contemplated by the NSA
Acquisition Agreement.
"NSA Acquisition Agreement" means the Asset Purchase Agreement by and among
Company, NSA, NSA Acquisition Company, certain Subsidiaries of NSA, certain
stockholders of NSA and other parties indicated on the signature pages thereof,
in the form delivered to Arranging Agents on or prior to November 10, 1997 and
as such agreement may be amended, restated, supplemented or otherwise modified
from time to time to the extent permitted under subsection 7.12A.
"NSA Acquisition Loans" means the Additional Tranche B Term Loans in an
aggregate principal amount of $22,000,000 made to Company on October 8, 1997.
"Obligations" means all obligations of every nature of each Loan Party from
time to time owed to Agents, Lenders or any of them under the Loan Documents,
whether for principal, interest, reimbursement of amounts drawn under Letters of
Credit or payments for early termination of Interest Rate Agreements, fees,
expenses, indemnification or otherwise.
"Officer's Certificate" means, as applied to any corporation, a certificate
executed on behalf of such corporation by its chairman of the board (if an
officer), its president, its chief financial officer or a vice president;
provided that every Officer's Certificate with respect to the compliance with a
condition precedent to the making of any Loans hereunder shall include (i) a
statement that the officer making or giving such Officer's Certificate has read
such condition and any definitions or other provisions contained in this
Agreement relating thereto, (ii) a statement that, in the opinion of the signer
he or she has made or has caused to be made such examination or investigation as
is necessary to enable him or her to express an informed opinion as to whether
or not such condition has been complied with, and (iii) a statement as to
whether, in the opinion of the signer, such condition has been complied with.
"Operating Lease" means, as applied to any Person, any lease (including,
without limitation, leases that may be terminated by the lessee at any time) of
any property (whether real, personal or mixed) that is not a Capital Lease other
than any such lease under which that Person is the lessor.
"Original Credit Agreement" means that certain Credit Agreement dated as of
November 6, 1996 by and among Company, the financial institutions party thereto
from time to time, Goldman Sachs Credit Partners L.P. and The Chase Manhattan
Bank as Co-Administrative Agents, Goldman Sachs Credit Partners L.P. and Chase
Securities Inc., as Arranging Agents and SunTrust Bank, Atlanta as collateral
agent.
"Partnership Loan Party" means any Loan Party which is a limited
partnership.
"Payco" means Payco American Corporation, a Wisconsin corporation.
"Payco Acquisition" means the transactions contemplated by the Payco
Acquisition Agreement.
"Payco Acquisition Agreement" means that certain Agreement and Plan of
Merger dated as of August 13, 1996, by and among Company, Acquisition Sub and
Payco, as in effect on the Closing Date and as such agreement may heretofore
have been or hereafter may be amended, restated, supplemented or otherwise
modified from time to time to the extent permitted under subsection 7.12A.
"Payco Merger" means the merger of Acquisition Sub with and into Payco in
accordance with the terms of the Payco Acquisition Agreement, the Articles of
Merger and the Certificate of Merger, with Payco being the surviving corporation
in such merger.
"PBGC" means the Pension Benefit Guaranty Corporation established pursuant
to Section 4002 of ERISA (or any successor thereto).
"Pension Plan" means any Employee Benefit Plan, other than a Multiemployer
Plan, which is subject to Title IV of ERISA.
"Permitted Acquisition" means an acquisition of assets or a business (other
than Permitted Portfolio Acquisitions) effected prior to the Effective Date or
in accordance with the provisions of subsection 7.7(v) or 7.7(vi).
"Permitted Encumbrances" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or claims the
payment of which is not, at the time, required by subsection 6.3;
(ii) statutory Liens of landlords, statutory Liens of carriers,
warehousemen, mechanics and materialmen and other Liens imposed by law
(other than any such Lien imposed pursuant to Section 401(a)(29) or 412(n)
of the Internal Revenue Code or by ERISA) incurred in the ordinary course
of business for sums not yet delinquent or being contested in good faith,
if such reserve or other appropriate provision, if any, as shall be
required by GAAP shall have been made therefor;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(iv) any attachment or judgment Lien not constituting an Event of
Default under subsection 8.8;
(v) leases or subleases granted to others not interfering in any
material respect with the ordinary conduct of the business of Company or
any of its Subsidiaries;
(vi) easements, rights-of-way, restrictions, minor defects,
encroachments or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the ordinary
conduct of the business of Company or any of its Subsidiaries;
(vii) any (a) interest or title of a lessor or sublessor under any
Capital Lease permitted by subsection 7.1(iii) or any operating lease not
prohibited by this Agreement, (b) restriction or encumbrance that the
interest or title of such lessor or sublessor may be subject to, or (c)
subordination of the interest of the lessee or sublessee under such lease
to any restriction or encumbrance referred to in the preceding clause (b);
(viii) Liens arising from filing UCC financing statements relating
solely to leases permitted by this Agreement;
(ix) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(x) deposits in the ordinary course of business to secure liabilities
to insurance carriers, lessors, utilities and other service providers; and
(xi) bankers liens and rights of setoff with respect to customary
depository arrangements entered into in the ordinary course of business.
"Permitted Joint Venture" means an entity engaged in substantially the same
line of business as Company and its Subsidiaries on the date hereof in which (i)
except with respect to an entity the only other equity holder of which is
Goldman, Sachs & Co. or one or more of its designated affiliates, at least 51%
of the outstanding equity interests are owned by Company or a Wholly Owned
Subsidiary of Company, (ii) any equity interests (other than Regulatory Shares)
not owned by Company or a Wholly Owned Subsidiary of Company are beneficially
owned by non-Affiliates of Company and (iii) Company or a Wholly Owned
Subsidiary, as a general partner or otherwise, controls the management,
operations and policies.
"Permitted Portfolio Acquisition" means an acquisition of a receivables
portfolio effected in accordance with the provisions of subsection 7.7(v).
"Permitted Seller Note" means a promissory note substantially in the form
of Exhibit XIV annexed hereto representing any Indebtedness of Company incurred
in connection with any Permitted Acquisition payable to the seller in connection
therewith, as such note may be amended, restated, supplemented or otherwise
modified from time to time to the extent permitted under subsection 7.12B;
provided that no Permitted Seller Note shall (i) be guaranteed by any Subsidiary
of Company or secured by any property of Company or any of its Subsidiaries,
(ii) bear cash interest at a rate in excess of 12% per annum; or (iii) provide
for any prepayment or repayment of all or any portion of the principal thereof
prior to the date of the final scheduled installment of principal of any of the
Loans; provided that, up to $10,000,000 aggregate principal amount of Permitted
Seller Notes may provide for prepayment or repayment prior to the final
scheduled installment of principal of the Loans but in no event earlier than the
fifth anniversary of the Effective Date.
"Person" means and includes natural persons, corporations, limited
partnerships, general partnerships, joint stock companies, Joint Ventures,
associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"Pledge Agreement" means that certain Pledge Agreement by and among
Company, the Subsidiary Guarantors and Collateral Agent dated as of the Closing
Date and substantially in the form of Exhibit VIII annexed hereto, as such
Pledge Agreement may heretofore have been or hereafter may be amended, restated,
supplemented or otherwise modified from time to time.
"Portfolio Purchase Business" means assets or operations generating
revenues from collections on acquired or purchased portfolios of loans,
accounts, chattel paper, general intangibles or instruments.
"Potential Event of Default" means a condition or event that, after notice
or after any applicable grace period has lapsed, or both, would constitute an
Event of Default.
"Pricing Reduction" means, at any time after June 30, 1998, a pricing
reduction determined by reference to the correlative Leverage Ratio set forth
below:
============================================== =============================
LEVERAGE RATIO PRICING REDUCTION
============================================== =============================
Greater than or equal to 2.25:1.0, .25%
but less than 2.75:1.0
============================================== =============================
Less than 2.25:1.0 .50%
============================================== =============================
The Pricing Reduction shall be determined by reference to the Leverage Ratio set
forth in the most recent financial statements delivered by Company pursuant to
clause (ii) or (iii) of subsection 6.1 (accompanied by a Compliance Certificate
delivered by Company pursuant to clause (iv) of subsection 6.1). The Pricing
Reduction shall be effective on the day following delivery of the relevant
Compliance Certificate to Chase Co-Administrative Agent and shall remain in
effect through the next scheduled date for delivery of a Compliance Certificate.
It is understood that the Pricing Reductions set forth in the table above are
not cumulative. Notwithstanding anything herein to the contrary, at any time an
Event of Default shall have occurred and be continuing the Pricing Reduction
shall be zero.
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by Chase as its prime commercial lending rate in effect at its
principal office in New York City. The Prime Rate is a reference rate and does
not necessarily represent the lowest or best rate actually charged to any
customer. Chase or any other Lender may make commercial loans or other loans at
rates of interest at, above or below the Prime Rate.
"Projections" has the meaning assigned thereto in subsection 5.3B.
"Pro Rata Share" means (i) with respect to all payments, computations and
other matters relating to the Tranche A Term Loan Commitment or the Tranche A
Term Loan of any Lender, the percentage obtained by dividing (x) the Tranche A
Term Loan Exposure of that Lender by (y) the aggregate Tranche A Term Loan
Exposure of all Lenders; (ii) with respect to all payments, computations and
other matters relating to the Tranche B Term Loan Commitment or the Tranche B
Term Loan of any Lender, the percentage obtained by dividing (x) the Tranche B
Term Loan Exposure of that Lender by (y) the aggregate Tranche B Term Loan
Exposure of all Lenders; (iii) with respect to all payments, computations and
other matters relating to the Tranche C Term Loan Commitment or the Tranche C
Term Loans of any Lender, the percentage obtained by dividing (x) the Tranche C
Term Loan Exposure of that Lender by (y) the aggregate Tranche C Term Loan
Exposure of all Lenders; (iv) with respect to all payments, computations and
other matters relating to the Revolving Loan Commitment or the Revolving Loans
of any Lender or any Letters of Credit issued by any Lender or any
participations purchased by any Lender therein or in any Swing Line Loans, the
percentage obtained by dividing (x) the Revolving Loan Exposure of that Lender
by (y) the aggregate Revolving Loan Exposure of all Lenders; and (v) for all
other purposes with respect to each Lender, the percentage obtained by dividing
(x) the sum of the Tranche A Term Loan Exposure of that Lender plus the Tranche
B Term Loan Exposure of that Lender plus the Tranche C Term Loan Exposure of
that Lender plus the Revolving Loan Exposure of that Lender by (y) the sum of
the aggregate Tranche A Term Loan Exposure of all Lenders plus the aggregate
Tranche B Term Loan Exposure of all Lenders plus the aggregate Tranche C Term
Loan Exposure of all Lenders plus the aggregate Revolving Loan Exposure of all
Lenders; in any such case as the applicable percentage may be adjusted by
assignments permitted pursuant to subsection 10.1. The initial Pro Rata Share of
each Lender for purposes of each of clauses (i), (ii), (iii), (iv) and (v) of
the preceding sentence is set forth opposite the name of that Lender in Schedule
2.1 annexed hereto.
"Qualified Loan Portfolio" means a portfolio of loans, accounts, chattel
paper, general intangibles or instruments acquired or purchased by Company or
one of its Subsidiaries from any Person, where (i) the portfolio is free and
clear of all Liens, except Liens in favor of Collateral Agent for the benefit of
Agents and Lenders under this Agreement; (ii) no participation or other interest
in the portfolio or the collections from the portfolio exists in favor of any
other Person other than a participation or other interest which does not exceed
50% of the portfolio or collections from the portfolio and which is on terms
approved in advance by Co-Administrative Agents and Requisite Lenders; and (iii)
the portfolio consists of loans, accounts, chattel paper, general intangibles or
instruments similar in type, characteristics and quality to those owned or
previously owned by Company and its Subsidiaries. Notwithstanding the foregoing,
a Qualified Loan Portfolio may be subject to participations, interests and/or
Liens granted to Goldman, Sachs & Co. or its designated affiliate or affiliates
pursuant to arrangements in effect as of the Effective Date or substantially
similar thereto.
"Refunded Swing Line Loans" has the meaning assigned to that term in
subsection 2.1A(iv).
"Register" has the meaning assigned to that term in subsection 2.1D.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Regulatory Shares" means, with respect to any Person, shares of such
Person required to be issued as qualifying shares to directors or persons
similarly situated or shares issued to Persons other than Company or a Wholly
Owned Subsidiary of Company in response to regulatory requirements of foreign
jurisdictions pursuant to a resolution of the Board of Directors of such Person,
so long as such shares do not exceed one percent of the total outstanding shares
of equity such Person and any owners of such shares irrevocably covenant with
Company to remit to Company or waive any dividends or distributions paid or
payable in respect of such shares.
"Reimbursement Date" has the meaning assigned to that term in subsection
3.3B.
"Related Agreements" means the Subordinated Notes, the Subordinated Note
Indenture, the other Subordinated Note Documents, the Payco Acquisition
Agreement, the Articles of Merger, the Certificate of Merger, the NSA
Acquisition Agreement, the Accelerated Acquisition Agreement and the Union
Acquisition Documents.
"Release" means any release, spill, emission, leaking, pumping, pouring,
injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching
or migration of Hazardous Materials into the indoor or outdoor environment
(including, without limitation, the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Materials), or
into or out of any Facility, including the movement of any Hazardous Material
through the air, soil, surface water, groundwater or property.
"Requisite Lenders" means Non-Defaulting Lenders having or holding not less
than 51% of the sum of the aggregate Tranche A Term Loan Exposure of all
Non-Defaulting Lenders plus the aggregate Tranche B Term Loan Exposure of all
Non-Defaulting Lenders plus the aggregate Tranche C Term Loan Exposure of all
Non-Defaulting Lenders plus the aggregate Revolving Loan Exposure of all
Non-Defaulting Lenders.
"Restricted Junior Payment" means (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock of Company
now or hereafter outstanding, except a dividend payable solely in shares of that
class of stock to the holders of that class, (ii) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of stock of Company now or hereafter
outstanding, (iii) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class
of stock of Company now or hereafter outstanding, and (iv) any payment or
prepayment of principal of, premium, if any, or interest on, or redemption,
purchase, retirement, defeasance (including in-substance or legal defeasance),
sinking fund or similar payment with respect to, any Subordinated Indebtedness.
"Revolving Loan Commitment" means the commitment of a Lender to make
Revolving Loans to Company pursuant to subsection 2.1A(iii) and "REVOLVING LOAN
COMMITMENTS" means such commitments of all Lenders in the aggregate.
"Revolving Loan Commitment Termination Date" means October 15, 2001.
"Revolving Loan Exposure" means, with respect to any Lender as of any date
of determination (i) prior to the termination of the Revolving Loan Commitments,
that Lender's Revolving Loan Commitment and (ii) after the termination of the
Revolving Loan Commitments, the sum of (a) the aggregate outstanding principal
amount of the Revolving Loans of that Lender plus (b) in the event that Lender
is an Issuing Lender, the aggregate Letter of Credit Usage in respect of all
Letters of Credit issued by that Lender (net of any participations purchased by
other Lenders in such Letters of Credit) plus (c) the aggregate amount of all
participations purchased by that Lender in any outstanding Letters of Credit or
any unreimbursed drawings under any Letters of Credit plus (d) the aggregate
amount of all participations purchased by that Lender in any outstanding Swing
Line Loans plus (e) in the case of Swing Line Lender, the sum of the aggregate
outstanding principal amount of all Swing Line Loans (in each case net of any
participations therein purchased by other Lenders).
"Revolving Loans" means (i) the Loans made by Lenders to Company pursuant
to subsection 2.1A(iii) of the Original Credit Agreement and pursuant to
subsection 2.1A(iii) of the Existing Credit Agreement and outstanding after the
Effective Date and (ii) any Loans made by Lenders to Company pursuant to
subsection 2.1A(iii) of this Agreement.
"Revolving Notes" means (i) the promissory notes of Company issued pursuant
to the Original Credit Agreement and the Existing Credit Agreement and (ii) any
promissory notes issued by Company pursuant to the last sentence of subsection
10.1B(i) in connection with assignments of the Revolving Loan Commitment and
Revolving Loans of any Lender, in each case substantially in the form of Exhibit
V annexed hereto, as they may be amended, restated, supplemented or otherwise
modified from time to time.
"Second Acknowledgment and Consent" means that certain Acknowledgement and
Consent executed by Company and the Subsidiary Guarantors dated as of the
Effective Date and substantially in the form of Exhibit XII annexed hereto, as
such Acknowledgement and Consent may be amended, restated, supplemented or
otherwise modified from time to time.
"Securities" means any stock, shares, partnership interests, voting trust
certificates, certificates of interest or participation in any profit-sharing
agreement or arrangement, options, warrants, bonds, debentures, notes, or other
evidences of indebtedness, secured or unsecured, convertible, subordinated or
otherwise, or in general any instruments commonly known as "securities" or any
certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, and any successor statute.
"Security Agreement" means the Security Agreement entered into by and among
Company, the Subsidiary Guarantors and Collateral Agent dated as of the Closing
Date and substantially in the form of Exhibit IX annexed hereto, as such
Security Agreement may heretofore have been or hereafter may be amended,
restated, supplemented or otherwise modified from time to time.
"Solvent" means, with respect to any Person, that as of the date of
determination both (i) (a) the then fair saleable value of the property of such
Person is (y) greater than the total amount of liabilities (including contingent
liabilities) of such Person and (z) not less than the amount that will be
required to pay the probable liabilities on such Person's then existing debts as
they become absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person; (b) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (c) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (ii) such Person is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
"Standby Letter of Credit" means any standby letter of credit or similar
instrument issued for the purpose of supporting (i) workers' compensation
liabilities of Company or any of its Subsidiaries, (ii) the obligations of third
party insurers of Company or any of its Subsidiaries arising by virtue of the
laws of any jurisdiction requiring third party insurers, (iii) performance,
payment, deposit or surety obligations of Company or any of its Subsidiaries, in
any case if required by law or governmental rule or regulation or in accordance
with custom and practice in the industry, and (iv) such other obligations of
Company and its Subsidiaries as may be reasonably acceptable to
Co-Administrative Agents; provided that Standby Letters of Credit may not be
issued for the purpose of supporting (a) trade payables or (b) Indebtedness
constituting "antecedent debt" (as that term is used in Section 547 of the
Bankruptcy Code).
"Stockholders Agreement" means that certain Amended and Restated
Stockholders Agreement dated as of February 16, 1996, by and among Company and
various stockholders of Company, as in effect on the Closing Date and as such
agreement may heretofore have been or hereafter may be amended, restated,
supplemented or otherwise modified from time to time thereafter to the extent
permitted under subsection 7.12A.
"Subordinated Indebtedness" means (i) the Indebtedness of Company evidenced
by the Subordinated Notes, (ii) the Indebtedness of Company evidenced by the
Existing Seller Note and any Permitted Seller Notes and (iii) any other
Indebtedness of Company or any of its Subsidiaries subordinated in right of
payment to the Obligations pursuant to documentation containing maturities,
amortization schedules, covenants, defaults, remedies, subordination provisions
and other material terms in form and substance satisfactory to Co-Administrative
Agents and Requisite Lenders.
"Subordinated Note Documents" means the Subordinated Notes, the
Subordinated Note Indenture, the Subordinated Note Guaranty and each other
document executed in connection with the Subordinated Notes, as each such
document may heretofore have been or hereafter may be amended, restated,
supplemented or otherwise modified from time to time to the extent permitted by
subsection 7.12B.
"Subordinated Note Guaranty" means the guaranty of the Subordinated Notes
executed by certain Subsidiaries of Company and contained in the Subordinated
Note Indenture, as such guaranty may heretofore have been or hereafter may be
amended, restated, supplemented or otherwise modified from time to time
(including by any supplemental indenture thereto executed by any Subsidiary of
Company after the Closing Date) to the extent permitted under subsection 7.12B.
"Subordinated Note Indenture" means the indenture pursuant to which the
Subordinated Notes are issued, as in effect on the Closing Date and as such
indenture may heretofore have been or hereafter may be amended, restated,
supplemented or otherwise modified from time to time to the extent permitted
under subsection 7.12B.
"Subordinated Notes" means the $100,000,000 in aggregate principal amount
of 11% Senior Subordinated Notes due 2006 of Company issued pursuant to the
Subordinated Note Indenture.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, association, joint venture or other business entity of which more
than 50% of the total voting power of shares of stock or other ownership
interests entitled (without regard to the occurrence of any contingency) to vote
in the election of the Person or Persons (whether directors, managers, trustees
or other Persons performing similar functions) having the power to direct or
cause the direction of the management and policies thereof is at the time owned
or controlled, directly or indirectly, by that Person or one or more of the
other Subsidiaries of that Person or a combination thereof provided that, prior
to the Union Merger Date, neither Union nor any of its Subsidiaries shall be
deemed a Subsidiary of Company for purposes of Sections 5.16, 7.1, 7.2 or 7.3.
"Subsidiary Guarantor" means any Wholly Owned Subsidiary of Company that is
a party to the Subsidiary Guaranty on the Effective Date or at any time
thereafter pursuant to subsection 6.9.
"Subsidiary Guaranty" means the Subsidiary Guaranty, substantially in the
form of Exhibit VII annexed hereto, dated as of the Closing Date and delivered
by the existing Subsidiary Guarantors on the Effective Date and any additional
Subsidiary Guarantor from time to time thereafter pursuant to subsection 6.9, as
such Subsidiary Guaranty may heretofore have been or hereafter may be amended,
restated, supplemented or otherwise modified from time to time.
"SunTrust" means SunTrust Bank, Atlanta and its successors and assigns,
including, without limitation, its successors by merger.
"Swing Line Lender" means Chase, or any Person serving as a successor Chase
Co-Administrative Agent hereunder, in its capacity as Swing Line Lender
hereunder.
"Swing Line Loan Commitment" means the commitment of Swing Line Lender to
make Swing Line Loans to Company pursuant to subsection 2.1A(iv).
"Swing Line Loans" means the Loans made by Swing Line Lender pursuant to
subsection 2.1A(iv).
"Swing Line Note" means (i) the promissory note of Company issued pursuant
to the Existing Credit Agreement and the Original Credit Agreement and (ii) any
promissory note issued by Company to any successor Chase Co-Administrative Agent
and Swing Line Lender pursuant to the last sentence of subsection 9.5B, in each
case substantially in the form of Exhibit VI annexed hereto, as it may be
amended, restated, supplemented or otherwise modified from time to time.
"Tax" or "Taxes" means any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever called, by
whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or
assessed; provided that "TAX ON THE OVERALL NET INCOME" of a Person shall be
construed as a reference to a tax imposed by the jurisdiction in which that
Person's principal office (and/or, in the case of a Lender, its relevant Lending
Office) is located or in which that Person is deemed to be doing business on all
or part of the net income, profits or gains of that Person (whether worldwide,
or only insofar as such income, profits or gains are considered to arise in or
to relate to a particular jurisdiction, or otherwise).
"Tendered Union Shares" means all shares of Union Common Stock tendered to
and purchased by Merger Sub pursuant to the Tender Offer.
"Tender Offer" means the offer to purchase for cash all of the outstanding
shares of Union Common Stock by Merger Sub pursuant to the Tender Offer
Materials.
"Tender Offer Materials" means the Tender Offer Statement on Schedule 14D-1
filed by Merger Sub on December 24, 1997 with the Securities and Exchange
Commission pursuant to Section 14(d)(1) of the Exchange Act, together with all
exhibits, supplements and amendments thereto and any other amendments prior to
the date hereof that relate only to any extension of time during which the offer
to purchase remains outstanding or to the results of the Tender Offer and other
amendments that are approved by Arranging Agents.
"Term Loans" means, collectively, the Tranche A Term Loans, the Tranche B
Term Loans and the Tranche C Term Loans.
"Term Notes" means, collectively, the Tranche A Term Notes, the Tranche B
Term Notes and the Tranche C Term Notes.
"Total Utilization of Revolving Loan Commitments" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all outstanding
Revolving Loans (other than Revolving Loans made for the purpose of repaying any
Refunded Swing Line Loans or reimbursing the applicable Issuing Lender for any
amount drawn under any Letter of Credit but not yet so applied) plus (ii) the
aggregate principal amount of all outstanding Swing Line Loans plus (iii) the
Letter of Credit Usage.
"Trademark Security Agreement" means the Trademark Security Agreement
entered into by and among Company, the Subsidiary Guarantors and Collateral
Agent dated as of the Closing Date, substantially in the form of Exhibit IX-C
annexed hereto, as such Trademark Security Agreement may heretofore have been or
hereafter may be amended, restated, supplemented or otherwise modified from time
to time.
"Tranche A Term Loan Commitment" means the commitment of a Lender to make a
Tranche A Term Loan to Company on the Closing Date pursuant to subsection
2.1A(i) of the Original Credit Agreement and the Existing Credit Agreement, and
"TRANCHE A TERM LOAN COMMITMENTS" means such commitments of all Lenders in the
aggregate.
"Tranche A Term Loan Exposure" means, with respect to any Lender as of any
date of determination, the outstanding principal amount of the Tranche A Term
Loan of that Lender.
"Tranche A Term Loans" means the Existing Tranche A Term Loans.
"Tranche A Term Notes" means (i) the promissory notes of Company issued
pursuant to the Original Credit Agreement and the Existing Credit Agreement and
(ii) any promissory notes issued by Company pursuant to the last sentence of
subsection 10.1B(i) in connection with assignments of the Tranche A Term Loans
of any Lenders, in each case substantially in the form of Exhibit IV-A annexed
hereto, as they may be amended, restated, supplemented or otherwise modified
from time to time.
"Tranche B Term Loan Commitment" means the commitment of a Lender to make a
Tranche B Term Loan to Company on the Closing Date pursuant to subsection
2.1A(ii) of the Original Credit Agreement and the commitment of a Lender to make
Additional Tranche B Term Loans to Company pursuant to subsection 2.1A(ii) of
the Existing Credit Agreement, and "TRANCHE B TERM LOAN COMMITMENTS" means such
commitments of all Lenders in the aggregate.
"Tranche B Term Loan Exposure" means, with respect to any Lender as of any
date of determination the outstanding principal amount of the Tranche B Term
Loan of that Lender.
"Tranche B Term Loans" means the Existing Tranche B Term Loans.
"Tranche B Term Note Allonge" means the Allonges issued pursuant to
subsection 2.1E of the Existing Credit Agreement on the First Amendment Date
with respect to the Tranche B Term Notes, as they may be amended, restated,
supplemented or otherwise modified from time to time.
"Tranche B Term Notes" means (i) the promissory notes of Company issued
pursuant to the Original Credit Agreement, in each case as amended on the First
Amendment Date by the Tranche B Term Note Allonges, (ii) the promissory notes of
Company issued pursuant to subsection 2.1E(ii) of the Existing Credit Agreement
on the First Amendment Date, and (iii) any promissory notes issued by Company
pursuant to the last sentence of subsection 10.1B(i) in connection with
assignments of the Tranche B Term Loans of any Lenders, in each case
substantially in the form of Exhibit IV-B annexed hereto, as they may be
amended, restated, supplemented or otherwise modified from time to time.
"Tranche C Term Loan Commitment" means the commitment of a Lender to make a
Tranche C Term Loan to Company pursuant to subsection 2.1A(ii), and "Tranche C
Term Loan Commitments" means such commitments of all Lenders in the aggregate.
"Tranche C Term Loan Exposure" means, with respect to any Lender as of any
date of determination (i) prior to the funding of the Tranche C Term Loans, that
Lender's Tranche C Term Loan Commitment, (ii) after the initial funding of the
Tranche C Term Loans but before the date (the "TRANCHE C TERM LOAN COMMITMENT
TERMINATION DATE") that is 120 days after the Effective Date or (if earlier) the
date on which the Delayed-Draw Term Loans are made, the outstanding principal
amount of the Tranche C Term Loans of that Lender plus the unfunded portion of
the Tranche C Term Loan Commitment, and (iii) after the Tranche C Term Loan
Commitment Termination Date, the outstanding principal amount of the Tranche C
Term Loans of that Lender.
"Tranche C Term Loans" means the Loans made by Lenders to Company pursuant
to subsection 2.1A(ii).
"Tranche C Term Notes" means (i) the promissory notes of Company issued
pursuant to subsection 2.1E on the Effective Date and (ii) any promissory notes
issued by Company pursuant to the last sentence of subsection 10.1B(i) in
connection with assignments of the Tranche C Term Loan Commitments or Tranche C
Term Loans of any Lenders, in each case substantially in the form of Exhibit
IV-C annexed hereto, as they may be amended, restated, supplemented or otherwise
modified from time to time.
"Transaction Costs" means the fees, costs and expenses payable by Company
and its Subsidiaries and in connection with the transactions contemplated hereby
to occur on the Effective Date and the Funding Date for the Delayed-Draw Term
Loan.
"Unfunded Current Liability" means, with respect to any Pension Plan, the
amount, if any, by which the actuarial present value of the accumulated plan
benefits under such Pension Plan as of the close of its most recent plan year
exceeds the fair market value of the assets allocable thereto, each determined
in accordance with Statement of Financial Accounting Standards No. 35, based
upon the actuarial assumptions used by such Pension Plan's actuary in the most
recent annual valuation of such Pension Plan.
"Union" has the meaning assigned to that term in the recitals to this
Agreement.
"Union Acquisition" means the transactions contemplated by the Union
Acquisition Agreement.
"Union Acquisition Agreement" that certain Share Purchase Agreement and
Plan of Merger dated as of December 22, 1997 by and among Company, Merger Sub
and Union.
"Union Acquisition Documents" means the Union Acquisition Agreement, the
Tender Offer Materials and the Union Certificate of Merger.
"Union Certificate of Merger" means the Certificate of Merger by and
between Merger Sub and Union to be filed with the Secretary of State of Delaware
as contemplated by the Union Acquisition Agreement, as such certificate may be
amended, restated, supplemented or otherwise modified from time to time
thereafter to the extent permitted under subsection 7.12A.
"Union Common Stock" means the common stock of Union, par value $.50 per
share, issued and outstanding prior to the Union Merger.
"Union Letters of Credit" has the meaning assigned to that term in
subsection 3.1A.
"Union Merger" means the merger of Merger Sub with and into Union in
accordance with the terms of the Union Acquisition Agreement and the Union
Certificate of Merger, with Union being the surviving corporation.
"Union Merger Date" means the date that the Union Merger becomes effective
in accordance with the terms of the Union Acquisition Agreement.
"Wholly Owned Subsidiary" means, with respect to any Person, a Subsidiary
of such Person all of the outstanding capital stock or other ownership interests
of which (other than Regulatory Shares) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS UNDER
AGREEMENT.
Except as otherwise expressly provided in this Agreement, all accounting
terms not otherwise defined herein shall have the meanings assigned to them in
conformity with GAAP. Financial statements and other information required to be
delivered by Company to Lenders pursuant to clauses (i), (ii), (iii) and (xiii)
of subsection 6.1 shall be prepared in accordance with GAAP (except, with
respect to interim financial statements, normal year-end audit adjustments and
the absence of explanatory footnotes) as in effect at the time of such
preparation (and delivered together with the reconciliation statements provided
for in subsection 6.1(v)). Calculations in connection with the definitions,
covenants and other provisions of this Agreement shall utilize accounting
principles and policies in conformity with those used to prepare the financial
statements referred to in subsection 5.3A.
1.3 OTHER DEFINITIONAL PROVISIONS.
References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided. Any of the terms defined in subsection 1.1 may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference. The words "includes", "including" and similar terms used in any Loan
Document shall be construed as if followed by the words "without limitation".
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; LOANS.
A. COMMITMENTS. Subject to the terms and conditions of this Agreement and
in reliance upon the representations and warranties of Loan Parties set forth
herein and in the other Loan Documents, each Lender hereby severally agrees to
make (or maintain, as the case may be) the Loans described in subsections
2.1A(i), 2.1A(ii) and 2.1A(iii) and Swing Line Lender hereby agrees to make the
Swing Line Loans as described in subsection 2.1A(iv).
(i) Existing Loans. Company acknowledges and confirms that each
Existing Lender holds Existing Loans in the respective principal amounts
outstanding as of the Effective Date set forth opposite its name on
Schedule 2.1 annexed hereto. Company hereby represents, warrants, agrees,
covenants and (1) reaffirms that it has no (and it permanently and
irrevocably waives and releases Agents and Lenders from any, to the extent
arising on or prior to the Effective Date) defense, set off, claim or
counterclaim against any Agent or Lender in regard to its Obligations in
respect of such Existing Loans and (2) reaffirms its obligation to pay such
Loans in accordance with the terms and conditions of this Agreement and the
other Loan Documents. Based on the foregoing, (A) Company and each Lender
agree that (x) the Existing Tranche A Term Loans, (y) the Existing Tranche
B Term Loans and (z) the Existing Revolving Loans, and any amounts owed
(whether or not presently due and payable, and including all interest
accrued to the Effective Date (which shall be payable on the next Interest
Payment Date with respect to the Loans to which such interest relates)) by
Company to Lenders thereunder or in respect thereof, shall, as of the
Effective Date, be converted to, maintained as, and owed by Company under
or in respect of Tranche A Term Loans, Tranche B Term Loans and Revolving
Loans, respectively, hereunder. Amounts repaid or prepaid in respect of
Tranche A Term Loans and Tranche B Term Loans may not be reborrowed.
Amounts repaid or prepaid in respect of the foregoing Revolving Loans may
be repaid and reborrowed to but excluding the Revolving Loan Commitment
Termination Date.
(ii) Tranche C Term Loans. Each Lender severally agrees (a) to lend to
Company on the Effective Date (in the case of Tranche C Term Loans other
than Delayed-Draw Term Loans) and (b) to lend to Company within 120 days
after the Effective Date (in the case of Delayed-Draw Term Loans) an
aggregate amount not exceeding its Pro Rata Share of the aggregate amount
of the Tranche C Term Loan Commitments to be used for the purposes
identified in subsection 2.5B. The amount of each Lender's Tranche C Term
Loan Commitment is set forth opposite its name on Schedule 2.1 annexed
hereto and the aggregate amount of the Tranche C Term Loan Commitments is
$225,000,000; provided that the Tranche C Term Loan Commitments of Lenders
shall be adjusted to give effect to any assignments of the Tranche C Term
Loan Commitments pursuant to subsection 10.1B. Each Lender's Tranche C Term
Loan Commitment shall expire immediately and without further action on
February 15, 1998 if the initial Tranche C Term Loans are not made on or
before that date, and each Lender's Tranche C Term Loan Commitment in
respect of the Delayed-Draw Term Loans shall expire immediately and without
further action on the date that is 120 days after the Effective Date in the
event that the Delayed-Draw Term Loans are not made on or before that date.
Company may make only two borrowings under the Tranche C Term Loan
Commitments. Amounts borrowed under this subsection 2.1A(ii) and
subsequently repaid or prepaid may not be reborrowed.
(iii) Revolving Loans. Each Lender severally agrees, subject to the
limitations set forth below with respect to the maximum amount of Revolving
Loans permitted to be outstanding from time to time, to lend to Company
from time to time during the period from the Effective Date to but
excluding the Revolving Loan Commitment Termination Date an aggregate
amount which, when aggregated with any outstanding Existing Loans of the
Lender that are Revolving Loans, shall not exceed its Pro Rata Share of the
aggregate amount of the Revolving Loan Commitments, to be used for the
purposes identified in subsection 2.5C. The original amount of each
Lender's Revolving Loan Commitment is set forth opposite its name on
Schedule 2.1 annexed hereto and the aggregate original amount of the
Revolving Loan Commitments is $58,000,000; provided that the Revolving Loan
Commitments of Lenders shall be adjusted to give effect to any assignments
of the Revolving Loan Commitments pursuant to subsection 10.1B; provided
further that the amount of the Revolving Loan Commitments shall be reduced
from time to time by the amount of any reductions thereto made pursuant to
subsection 2.4B. Each Lender's Revolving Loan Commitment shall expire on
the Revolving Loan Commitment Termination Date and all Revolving Loans and
all other amounts owed hereunder with respect to the Revolving Loans and
the Revolving Loan Commitments shall be paid in full no later than that
date. Amounts borrowed under this subsection 2.1A(iii) as Revolving Loans
may be repaid and reborrowed to but excluding the Revolving Loan Commitment
Termination Date.
Notwithstanding anything contained herein to the contrary, in no event
shall the Total Utilization of Revolving Loan Commitments at any time
exceed the Revolving Loan Commitments then in effect.
(iv) Swing Line Loans. Swing Line Lender hereby agrees, subject to the
limitations set forth below with respect to the maximum aggregate amount of
all Swing Line Loans outstanding from time to time, to make a portion of
the Revolving Loan Commitments available to Company from time to time
during the period from the Effective Date to but excluding the Revolving
Loan Commitment Termination Date by making Base Rate Loans as Swing Line
Loans to Company in an aggregate amount not to exceed the amount of the
Swing Line Loan Commitment, to be used for the purposes identified in
subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when
aggregated with the sum of Swing Line Lender's outstanding Revolving Loans
and Swing Line Lender's Pro Rata Share of the Letter of Credit Usage then
in effect, may exceed Swing Line Lender's Revolving Loan Commitment. The
original amount of the Swing Line Loan Commitment is $5,000,000; provided
that the amounts of the Swing Line Loan Commitment are subject to reduction
as provided in clause (b) of the next paragraph. The Swing Line Loan
Commitment shall expire on the Revolving Loan Commitment Termination Date
and all Swing Line Loans and all other amounts owed hereunder with respect
to the Swing Line Loans shall be paid in full no later than that date.
Amounts borrowed under this subsection 2.1A(iv) may be repaid and
reborrowed to but excluding the Revolving Loan Commitment Termination Date.
Notwithstanding anything contained herein to the contrary, the Swing Line
Loans, and the Swing Line Loan Commitment shall be subject to the following
limitations in the amounts indicated:
(a) in no event shall the Total Utilization of Revolving Loan
Commitments at any time exceed the Revolving Loan Commitments then in
effect;
(b) any reduction of the Revolving Loan Commitments made pursuant
to subsection 2.4B which reduces the aggregate Revolving Loan
Commitments to an amount less than the then current sum of the Swing
Line Loan Commitment shall result in an automatic corresponding pro
rata reduction of the Swing Line Loan Commitment such that the sum
thereof equals the amount of the Revolving Loan Commitments, as so
reduced, without any further action on the part of Company, Chase
Co-Administrative Agent or Swing Line Lender.
With respect to any Swing Line Loans which have not been voluntarily
prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may,
at any time in its sole and absolute discretion, deliver to Chase
Co-Administrative Agent (with a copy to Company), no later than 12:00 Noon
(New York time) at least one Business Day in advance of the proposed
Funding Date, a notice (which shall be deemed to be a Notice of Borrowing
given by Company) requesting Lenders to make Revolving Loans that are Base
Rate Loans to Company on such Funding Date in an amount equal to the amount
of such Swing Line Loans (the "REFUNDED SWING LINE LOANS") outstanding on
the date such notice is given which Swing Line Lender requests Lenders to
prepay. Anything contained in this Agreement to the contrary
notwithstanding, (i) the proceeds of such Revolving Loans made by Lenders
other than Swing Line Lender shall be immediately delivered by
Co-Administrative Agents to Swing Line Lender (and not to Company) and
applied to repay a corresponding portion of the Refunded Swing Line Loans
and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro
Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with
the proceeds of a Revolving Loan made by Swing Line Lender to Company, and
such portion of the Swing Line Loans deemed to be so paid shall no longer
be outstanding as Swing Line Loans and shall no longer be due under the
Swing Line Note of Swing Line Lender but shall instead constitute part of
Swing Line Lender's outstanding Revolving Loans to Company and shall be due
under the Revolving Note issued by Company to Swing Line Lender. Company
hereby authorizes each of Chase Co-Administrative Agent and Swing Line
Lender to charge Company's accounts with Chase Co-Administrative Agent and
Swing Line Lender (up to the amount available in each such account) in
order to immediately pay Swing Line Lender the amount of the Refunded Swing
Line Loans to the extent the proceeds of such Revolving Loans made by
Lenders, including the Revolving Loan deemed to be made by Swing Line
Lender, are not sufficient to repay in full the Refunded Swing Line Loans.
If any portion of any such amount paid (or deemed to be paid) to Swing Line
Lender should be recovered by or on behalf of Company from Swing Line
Lender in bankruptcy, by assignment for the benefit of creditors or
otherwise, the loss of the amount so recovered shall be ratably shared
among all Lenders in the manner contemplated by subsection 10.5.
If for any reason Revolving Loans are not made pursuant to this
subsection 2.1A(iv) in an amount sufficient to repay any amounts owed to
Swing Line Lender in respect of any outstanding Swing Line Loans on or
before the third Business Day after demand for payment thereof by Swing
Line Lender, each Lender shall be deemed to, and hereby agrees to, have
purchased a participation in such outstanding Swing Line Loans, and in an
amount equal to its Pro Rata Share of the applicable unpaid amount together
with accrued interest thereon. Upon one Business Day's notice from Swing
Line Lender, each Lender shall deliver to Swing Line Lender an amount in
equal to its respective participation in the applicable unpaid amount in
same day funds at the Funding and Payment Office. In order to evidence such
participation each Lender agrees to enter into a participation agreement at
the request of Swing Line Lender in form and substance satisfactory to
Swing Line Lender. In the event any Lender fails to make available to Swing
Line Lender the amount of such Lender's participation as provided in this
paragraph, Swing Line Lender shall be entitled to recover such amount on
demand from such Lender together with interest thereon at the rate
customarily used by Swing Line Lender for the correction of errors among
banks for three Business Days and thereafter at the Base Rate, as
applicable.
Notwithstanding anything contained herein to the contrary, (i) each
Lender's obligation to make Revolving Loans for the purpose of repaying any
Refunded Swing Line Loans pursuant to the second preceding paragraph and
each Lender's obligation to purchase a participation in any unpaid Swing
Line Loans pursuant to the immediately preceding paragraph shall be
absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (a) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against Swing Line
Lender, Company or any other Person for any reason whatsoever; (b) the
occurrence or continuation of an Event of Default or a Potential Event of
Default; (c) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any
of its Subsidiaries; (d) any breach of this Agreement or any other Loan
Document by any party thereto; or (e) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing; provided
that no Lender shall have any such obligation unless (x) Swing Line Lender
believed in good faith that all conditions under Section 4 to the making of
the applicable Refunded Swing Line Loans or other unpaid Swing Line Loans,
were satisfied at the time such Refunded Swing Line Loans or unpaid Swing
Line Loans were made, or (y) such Lender had actual knowledge, by receipt
of any notices required to be delivered to Lenders pursuant to subsection
6.1(ix) or otherwise, that any such condition under Section 4 had not been
satisfied and such Lender failed to notify Swing Line Lender and Chase
Co-Administrative Agent in writing that it had no obligation to make
Revolving Loans until such condition was satisfied (any such notice to be
effective as of the date of receipt thereof by Swing Line Lender and Chase
Co-Administrative Agent), or (z) the satisfaction of any such condition
under Section 4 not satisfied had been waived by Requisite Lenders prior to
or at the time such Refunded Swing Line Loans or other unpaid Swing Line
Loans were made; and (ii) Swing Line Lender shall not be obligated to make
any Swing Line Loans if it has elected not to do so after the occurrence
and during the continuation of a Potential Event of Default or Event of
Default.
B. BORROWING MECHANICS. Term Loans or Revolving Loans (including any such
Loans made as Eurodollar Rate Loans with a particular Interest Period) made on
any Funding Date (other than Revolving Loans made pursuant to a request by Swing
Line Lender pursuant to subsection 2.1A(iv) for the purpose of repaying any
Refunded Swing Line Loans or Revolving Loans made pursuant to subsection 3.3B
for the purpose of reimbursing any Issuing Lender for the amount of a drawing or
payment under a Letter of Credit issued by it) shall be in an aggregate minimum
amount of $1,000,000 and integral multiples of $100,000 in excess of that
amount. Swing Line Loans made on any Funding Date shall be in an aggregate
minimum amount of $250,000 and integral multiples of $100,000 in excess of that
amount. Whenever Company desires that Lenders make Term Loans or Revolving Loans
it shall deliver to Chase Co-Administrative Agent on behalf of Company a Notice
of Borrowing no later than 12:00 Noon (New York time), at least three Business
Days in advance of the proposed Funding Date in the case of a Eurodollar Rate
Loan, or at least one Business Day in advance of the proposed Funding Date in
the case of a Base Rate Loan; provided, however, that Company may deliver to
Chase Co-Administrative Agent a Notice of Borrowing no later than 11:00 AM (New
York time) on the proposed Funding Date of any Tranche C Term Loans (other than
Delayed-Draw Term Loans) to be borrowed at the Base Rate. Whenever Company
desires that Swing Line Lender make a Swing Line Loan, it shall deliver to Chase
Co-Administrative Agent a Notice of Borrowing no later than 12:00 Noon (New York
time) on the proposed Funding Date. The Notice of Borrowing shall specify (i)
the proposed Funding Date (which shall be a Business Day), (ii) the amount and
type of Loans requested, (iii) in the case of Swing Line Loans, that such Loans
shall be Base Rate Loans, (iv) in the case of any Loans other than Swing Line
Loans, whether such Loans shall be Base Rate Loans or Eurodollar Rate Loans, and
(v) in the case of any Loans requested to be made as Eurodollar Rate Loans, the
initial Interest Period requested therefor. Term Loans and Revolving Loans may
be continued as or converted into Base Rate Loans and Eurodollar Rate Loans in
the manner provided in subsection 2.2D. In lieu of delivering the
above-described Notice of Borrowing, Company may give Chase Co-Administrative
Agent telephonic notice by the required time of any proposed borrowing under
this subsection 2.1B; provided that such notice shall be promptly confirmed in
writing by delivery of a Notice of Borrowing to Chase Co-Administrative Agent on
or before the applicable Funding Date.
Neither Chase Co-Administrative Agent nor any Lender shall incur any
liability to Company in acting upon any telephonic notice referred to above that
Chase Co-Administrative Agent believes in good faith to have been given by a
duly authorized officer or other person authorized to borrow on behalf of
Company or for otherwise acting in good faith under this subsection 2.1B, and
upon funding of Loans by Lenders in accordance with this Agreement pursuant to
any such telephonic notice Company shall have effected Loans hereunder.
Company shall notify Chase Co-Administrative Agent prior to the funding of
any Loans in the event that any of the matters to which Company is required to
certify in the applicable Notice of Borrowing are no longer true and correct as
of the applicable Funding Date, and the acceptance by Company of the proceeds of
any Loans shall constitute a re-certification by Company, as of the applicable
Funding Date, as to the matters to which Company is required to certify in the
applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice
of Borrowing for a Eurodollar Rate Loan (or telephonic notice in lieu thereof)
shall be irrevocable on and after the related Interest Rate Determination Date,
and Company shall be bound to make a borrowing in accordance therewith.
C. DISBURSEMENT OF FUNDS. All Term Loans and all Revolving Loans under this
Agreement shall be made by Lenders simultaneously and proportionately to their
respective Pro Rata Shares, it being understood that no Lender shall be
responsible for any default by any other Lender in that other Lender's
obligation to make a Loan requested hereunder nor shall the Commitment of any
Lender to make the particular type of Loan requested be increased or decreased
as a result of a default by any other Lender in that other Lender's obligation
to make a Loan requested hereunder. Promptly after receipt by Co-Administrative
Agents of a Notice of Borrowing pursuant to subsection 2.1B (or telephonic
notice in lieu thereof), Chase Co-Administrative Agent shall notify each Lender
or Swing Line Lender, as the case may be, of the proposed borrowing and of the
amount of such Lender's Pro Rata Share of the applicable Loans.
Each Lender shall make the amount of its Loan available to Chase
Co-Administrative Agent not later than 12:00 Noon (New York time) on the
applicable Funding Date, and Swing Line Lender shall make the amount of its
Swing Line Loan available to Chase Co-Administrative Agent not later than 12:00
Noon (New York time) on the applicable Funding Date, in each case in same day
funds, at the Funding and Payment Office. Except as provided in subsection
2.1A(iv) or subsection 3.3B with respect to Revolving Loans used to repay
Refunded Swing Line Loans or to reimburse any Issuing Lender for the amount of
an honored drawing or payment under a Letter of Credit issued by it, upon
satisfaction or waiver of the conditions precedent specified in subsections 4.2
(in the case of Loans made on the Effective Date), 4.3 (in the case of the
Delayed-Draw Term Loans) and 4.4 (in the case of all Loans), Chase
Co-Administrative Agent shall make the proceeds of such Loans available to
Company on the applicable Funding Date by causing an amount of same day funds
equal to the proceeds of all such Loans received by Chase Co-Administrative
Agent from Lenders or Swing Line Lender, as the case may be, to be credited to
the account of Company at the Funding and Payment Office.
Unless Chase Co-Administrative Agent shall have been notified by any Lender
prior to the Funding Date for any Loans that such Lender does not intend to make
available to Chase Co-Administrative Agent the amount of such Lender's Loan
requested on such Funding Date, Chase Co-Administrative Agent may assume that
such Lender has made such amount available to Chase Co-Administrative Agent on
such Funding Date and Chase Co-Administrative Agent may, in its sole discretion,
but shall not be obligated to, make available to Company a corresponding amount
on such Funding Date. If such corresponding amount is not in fact made available
to Chase Co-Administrative Agent by such Lender, Chase Co-Administrative Agent
shall be entitled to recover such corresponding amount on demand from such
Lender together with interest thereon, for each day from such Funding Date until
the date such amount is paid to Chase Co-Administrative Agent, at the customary
rate set by Chase Co-Administrative Agent for the correction of errors among
banks for three Business Days and thereafter at the Base Rate. If such Lender
does not pay such corresponding amount forthwith upon Chase Co-Administrative
Agent's demand therefor, Chase Co-Administrative Agent shall promptly notify
Company and Company shall immediately pay such corresponding amount in the to
Chase Co-Administrative Agent together with interest thereon, for each day from
such Funding Date until the date such amount is paid to Chase Co-Administrative
Agent, at the rate applicable to such Loan. Nothing in this subsection 2.1C
shall be deemed to relieve any Lender from its obligation to fulfill its
Commitments hereunder or to prejudice any rights that Company may have against
any Lender as a result of any default by such Lender hereunder.
D. THE REGISTER.
(i) Chase Co-Administrative Agent shall maintain, at the address
referred to in subsection 10.8, a register for the recordation of the names
and addresses of Lenders and the Commitments and Loans of each Lender from
time to time (the "REGISTER"). The Register shall be available for
inspection by Company or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(ii) Chase Co-Administrative Agent shall record in the Register the
Commitments and the outstanding Loans from time to time of each Lender and
each repayment or prepayment in respect of the principal amount of the
outstanding Loans of each Lender. Any such recordation shall be conclusive
and binding on Company and each Lender, absent manifest error; provided
that failure to make any such recordation, or any error in such
recordation, shall not affect Company's Obligations in respect of the
applicable Loans.
(iii) Each Lender shall record on its internal records (including,
without limitation, the Notes held by such Lender) the amount of each Loan
made by it and each payment in respect thereof. Any such recordation shall
be prima facie evidence of the amount of such Loans; provided that failure
to make any such recordation, or any error in such recordation, shall not
affect Company's Obligations in respect of the applicable Loans; and
provided, further that in the event of any inconsistency between the
Register and any Lender's records, the recordations in the Register shall
govern.
(iv) Company, Agents and Lenders shall deem and treat the Persons
listed as Lenders in the Register as the holders and owners of the
corresponding Commitments and Loans listed therein for all purposes hereof,
and no assignment or transfer of any Commitment or Loan shall be effective,
in each case unless an until an Assignment Agreement effecting the
assignment or transfer thereof shall have been accepted by Chase
Co-Administrative Agent and recorded in the Register as provided in
subsection 10.1B(ii). Prior to such recordation, all amounts owed with
respect to the applicable Commitment or Loan shall be owed to the Lender
listed in the Register as the owner thereof, and any request, authority or
consent of any Person who, at the time of making such request or giving
such authority or consent, is listed in the Register as a Lender shall be
conclusive and binding on any subsequent holder, assignee or transferee of
the corresponding Commitments or Loans.
(v) Company hereby designates Chase, and any financial institution
serving as a successor Chase Co-Administrative Agent, to serve as Company's
agent solely for purposes of maintaining the Register as provided in this
subsection 2.1D, and Company hereby agrees that, to the extent Chase serves
in such capacity, Chase and its officers, directors, employees, agents and
affiliates shall constitute Indemnitees for all purposes under subsection
10.3.
E. TRANCHE C TERM NOTES. Company shall execute and deliver on the Effective
Date to each Lender providing a Tranche C Term Loan Commitment (or to
Co-Administrative Agents for that Lender) a Tranche C Term Note, substantially
in the form of Exhibit IV-C annexed hereto, to evidence that Lender's Tranche C
Term Loans in the principal amount of that Lender's Tranche C Term Loans and
with other appropriate insertions. The Notes and the Obligations evidenced
thereby shall be governed by, subject to and benefit from all of the terms and
conditions of this Agreement and the other Loan Documents and shall be
guaranteed and/or secured by the Collateral as provided in the Loan Documents.
2.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. Subject to the provisions of subsections 2.6 and 2.7,
each Term Loan and each Revolving Loan shall bear interest on the unpaid
principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Base Rate or
the Adjusted Eurodollar Rate, as the case may be. Subject to the provisions of
subsection 2.7, each Swing Line Loan shall bear interest on the unpaid principal
amount thereof from the date made through maturity (whether by acceleration or
otherwise) at a rate determined by reference to the Base Rate. The applicable
basis for determining the rate of interest with respect to any Loan shall be
selected by Company initially at the time a Notice of Borrowing is given with
respect to such Loan pursuant to subsection 2.1B. The basis for determining the
interest rate with respect to any Term Loan or any Revolving Loan may be changed
from time to time pursuant to subsection 2.2D. If on any day any Term Loan or
Revolving Loan is outstanding with respect to which notice has not been
delivered to Co-Administrative Agents in accordance with the terms of this
Agreement specifying the applicable basis for determining the rate of interest,
then for that day that Loan shall bear interest determined by reference to the
Base Rate.
Subject to the provisions of subsections 2.2E and 2.7, the Term Loans and
the Revolving Loans shall bear interest through maturity as follows:
(i) if a Base Rate Loan, then at the sum of the Base Rate plus
the Applicable Base Rate Margin; or
(ii) if a Eurodollar Rate Loan, then at the sum of the Adjusted
Eurodollar Rate plus the Applicable Eurodollar Rate Margin.
Subject to the provisions of subsections 2.2E and 2.7, the Swing Line Loans
shall bear interest through maturity at the sum of the Base Rate plus the
Applicable Base Rate Margin less 0.50% per annum.
B. INTEREST PERIODS. In connection with each Eurodollar Rate Loan, Company
may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"INTEREST PERIOD") to be applicable to such Loan, which Interest Period shall
be, at Company's option, either a one, three or six month period; provided that:
(i) the initial Interest Period for any Eurodollar Rate Loan shall
commence on the Funding Date in respect of such Loan, in the case of a Loan
initially made as a Eurodollar Rate Loan, or on the date specified in the
applicable Notice of Conversion/Continuation, in the case of a Loan
converted to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods applicable
to a Eurodollar Rate Loan continued as such pursuant to a Notice of
Conversion/Continuation, each successive Interest Period shall commence on
the day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided that, if any Interest Period would
otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall,
subject to clause (v) of this subsection 2.2B, end on the last Business Day
of a calendar month;
(v) no Interest Period with respect to any portion of the Tranche A
Term Loans shall extend beyond October 15, 2001, no Interest Period with
respect to any portion of the Tranche B Term Loans shall extend beyond
October 15, 2003 and no Interest Period with respect to any portion of the
Tranche C Term Loans shall extend beyond October 15, 2004 and no Interest
Period with respect to any portion of the Revolving Loans shall extend
beyond the Revolving Loan Commitment Termination Date;
(vi) no Interest Period with respect to any portion of the Tranche A
Term Loans, Tranche B Term Loans or Tranche C Term Loans shall extend
beyond a date on which Company is required to make a scheduled payment of
principal of the Tranche A Term Loans, Tranche B Term Loans or Tranche C
Term Loans, as the case may be, unless the sum of (a) the aggregate
principal amount of Tranche A Term Loans, Tranche B Term Loans or Tranche C
Term Loans, as the case may be, that are Base Rate Loans plus (b) the
aggregate principal amount of Tranche A Term Loans, Tranche B Term Loans or
Tranche C Term Loans, as the case may be, that are Eurodollar Rate Loans
with Interest Periods expiring on or before such date equals or exceeds the
principal amount required to be paid on the Tranche A Term Loans, Tranche B
Term Loans or Tranche C Term Loans, as the case may be, on such date;
(vii) no Interest Period with respect to any portion of the Revolving
Loans shall extend beyond the date on which a permanent reduction of the
Revolving Loan Commitments is scheduled to occur unless the sum of (a) the
aggregate principal amount of Revolving Loans that are Base Rate Loans plus
(b) the aggregate principal amount of Revolving Loans that are Eurodollar
Rate Loans with Interest Periods expiring on or before such date plus (c)
the excess of the Revolving Loan Commitments then in effect over the
aggregate principal amount of Revolving Loans then outstanding equals or
exceeds the permanent reduction of the Revolving Loan Commitments that is
scheduled to occur on such date;
(viii) Company may not select an initial Interest Period of longer
than one month with respect to Tranche C Term Loans made on the Effective
Date.
(ix) there shall be no more than ten (10) Interest Periods outstanding
at any time; and
(x) in the event Company fails to specify an Interest Period for any
Eurodollar Rate Loan in the applicable Notice of Borrowing or Notice of
Conversion/Continuation, Company shall be deemed to have selected an
Interest Period of one month.
C. INTEREST PAYMENTS. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity); provided that in the event that any Swing Line Loans, any Revolving
Loans or any Term Loans that are Base Rate Loans are prepaid pursuant to
subsection 2.4B(i), interest accrued on such Swing Line Loans, Revolving Loans
or Term Loans through the date of such prepayment shall be payable on the next
succeeding Interest Payment Date applicable to Base Rate Loans (or, if earlier,
at final maturity).
D. CONVERSION OR CONTINUATION. Subject to the provisions of subsection 2.6,
Company shall have the option (i) to convert at any time all or any part of its
outstanding Term Loans or Revolving Loans equal to $1,000,000 and integral
multiples of $100,000 in excess of that amount from Loans bearing interest at a
rate determined by reference to one basis to Loans bearing interest at a rate
determined by reference to an alternative basis or (ii) upon the expiration of
any Interest Period applicable to a Eurodollar Rate Loan, to continue all or any
portion of such Loan equal to $1,000,000 and integral multiples of $100,000 in
excess of that amount as a Eurodollar Rate Loan; provided, however, that a
Eurodollar Rate Loan may only be converted into a Base Rate Loan on the
expiration date of an Interest Period applicable thereto.
Company shall deliver a Notice of Conversion/Continuation to Chase
Co-Administrative Agent no later than 12:00 Noon (New York time) at least one
Business Day in advance of the proposed conversion date (in the case of a
conversion to a Base Rate Loan), and at least three Business Days in advance of
the proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan). A Notice of Conversion/Continuation
shall specify (i) the proposed conversion/continuation date (which shall be a
Business Day), (ii) the amount and type of the Loan to be converted/continued,
(iii) the nature of the proposed conversion/continuation, (iv) in the case of a
conversion to, or a continuation of, a Eurodollar Rate Loan, the requested
Interest Period, and (v) in the case of a conversion to, or a continuation of, a
Eurodollar Rate Loan, that no Potential Event of Default or Event of Default has
occurred and is continuing. In lieu of delivering the above-described Notice of
Conversion/Continuation, Company may give Chase Co-Administrative Agent
telephonic notice by the required time of any proposed conversion/continuation
under this subsection 2.2D; provided that such notice shall be promptly
confirmed in writing by delivery of a Notice of Conversion/Continuation to Chase
Co-Administrative Agent on or before the proposed conversion/continuation date.
Neither Chase Co-Administrative Agent nor any Lender shall incur any
liability to Company in acting upon any telephonic notice referred to above that
Chase Co-Administrative Agent believes in good faith to have been given by a
duly authorized officer or other person authorized to act on behalf of Company
or for otherwise acting in good faith under this subsection 2.2D, and upon
conversion or continuation of the applicable basis for determining the interest
rate with respect to any Loans in accordance with this Agreement pursuant to any
such telephonic notice Company shall have effected a conversion or continuation,
as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice
of Conversion/Continuation for conversion to, or continuation of, a Eurodollar
Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable on and
after the related Interest Rate Determination Date, and Company shall be bound
to effect a conversion or continuation in accordance therewith.
E. POST-DEFAULT INTEREST. Upon the occurrence and during the continuation
of any Event of Default, the outstanding principal amount of all Loans and, to
the extent permitted by applicable law, any interest payments thereon not paid
when due and any fees and other amounts then due and payable hereunder, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code, or other applicable bankruptcy or insolvency laws)
payable upon demand at a rate that is 2% per annum in excess of the interest
rate otherwise payable under this Agreement with respect to the applicable Loans
(or, in the case of any such fees and other amounts, at a rate which is 2% per
annum in excess of the interest rate otherwise payable under this Agreement for
Revolving Loans bearing interest at a rate determined by reference to the Base
Rate); provided that, in the case of Eurodollar Rate Loans, upon the expiration
of the Interest Period in effect at the time any such increase in interest rate
is effective such Eurodollar Rate Loans shall thereupon become Base Rate Loans
and shall thereafter bear interest payable upon demand at a rate equal to 2% per
annum in excess of the interest rate otherwise payable under this Agreement for
Base Rate Loans that are Tranche A Term Loans, Tranche B Term Loans, Tranche C
Term Loans, or Revolving Loans, as applicable. Payment or acceptance of the
increased rates of interest provided for in this subsection 2.2E is not a
permitted alternative to timely payment and shall not constitute a waiver of any
Event of Default or otherwise prejudice or limit any rights or remedies of any
Agent or Lender.
F. COMPUTATION OF INTEREST. Interest on Loans shall be computed (i) in the
case of Base Rate Loans based on the Prime Rate, on the basis of a 365-day or
366-day year, as the case may be, and (ii) in the case of all other Base Rate
Loans and Eurodollar Rate Loans, on the basis of a 360-day year, in each case
for the actual number of days elapsed in the period during which it accrues. In
computing interest on any Loan, the date of the making of such Loan or the first
day of an Interest Period applicable to such Loan or, with respect to a Base
Rate Loan being converted from a Eurodollar Rate Loan, the date of conversion of
such Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shall be
included, and the date of payment of such Loan or the expiration date of an
Interest Period applicable to such Loan or, with respect to a Base Rate Loan
being converted to a Eurodollar Rate Loan, the date of conversion of such Base
Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded;
provided that if a Loan is repaid on the same day on which it is made, one day's
interest shall be paid on that Loan.
2.3 FEES.
A. COMMITMENT FEES. Company agrees to pay to Chase Co-Administrative Agent,
for distribution to each Lender in proportion to that Lender's Pro Rata Share
with respect to the Revolving Loan Commitments for the period from and including
the Closing Date to and excluding the Revolving Loan Commitment Termination Date
commitment fees equal to (i) the average of the daily excess of the Revolving
Loan Commitments over the sum of (x) the aggregate principal amount of Revolving
Loans outstanding (but not any Swing Line Loans outstanding) plus (y) the Letter
of Credit Usage, multiplied by (ii) 1/2 of 1% per annum. Company also agrees to
pay to Chase Co-Administrative Agent, for distribution to each Lender in
proportion to that Lender's Pro Rata Share with respect to the Tranche C Term
Loan Commitments for the period from and including the Effective Date to and
excluding the earlier of the Funding Date of the Delayed-Draw Term Loans and the
date which is 120 days after the Effective Date, commitment fees equal to (i)
the average daily unfunded portion of the Tranche C Term Loan Commitments,
multiplied by (ii) 1/2 of 1% per annum. All such commitment fees shall be
calculated on the basis of a 360-day year and the actual number of days elapsed
and shall be payable quarterly in arrears on January 15, April 15, July 15 and
October 15 of each year, commencing on January 15, 1997.
B. ANNUAL COLLATERAL AGENT'S FEE. Company agrees to pay to Collateral Agent
an annual Collateral Agent's fee in such amounts as may be agreed between them
from time to time.
C. OTHER FEES. Company agrees to pay to Agents such other fees in the
amounts and at the times separately agreed upon between Company and the
applicable Agents.
2.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN COMMITMENTS;
GENERAL PROVISIONS REGARDING PAYMENTS.
A. SCHEDULED PAYMENTS OF TERM LOANS.
(i) Scheduled Payments of Tranche A Term Loans. Company shall make
principal payments on the Tranche A Term Loans in installments on the dates
and in the amounts set forth below:
=========================================== ===================================
SCHEDULED REPAYMENT
DATE OF TRANCHE A
TERM LOANS
=========================================== ===================================
=========================================== ===================================
April 15, 1998 $3,312,500
July 15, 1998 $3,312,500
October 15, 1998 $3,312,500
=========================================== ===================================
January 15, 1999 $3,312,500
April 15, 1999 $3,312,500
July 15, 1999 $3,312,500
October 15, 1999 $3,312,500
=========================================== ===================================
January 15, 2000 $4,250,000
April 15, 2000 $4,250,000
July 15, 2000 $4,250,000
October 15, 2000 $4,250,000
=========================================== ===================================
January 15, 2001 $4,750,000
April 15, 2001 $4,750,000
July 15, 2001 $4,750,000
October 15, 2001 $4,750,000
=========================================== ===================================
; provided that the scheduled installments of principal of the Tranche A
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche A Term Loans in
accordance with subsection 2.4C; and provided further, that the Tranche A
Term Loans and all other amounts owed hereunder with respect to the Tranche
A Term Loans shall be paid in full no later than October 15, 2001, and the
final installment payable by Company in respect of the Tranche A Term Loans
on such date shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by Company under
this Agreement with respect to the Tranche A Term Loans.
(ii) Scheduled Payments of Tranche B Term Loans. Company shall make
principal payments on the Tranche B Term Loans in installments on the dates
and in the amounts set forth below:
=========================================== ===================================
DATE SCHEDULED REPAYMENT
OF TRANCHE B
TERM LOANS
=========================================== ===================================
=========================================== ===================================
April 15, 1998 $ 446,149
July 15, 1998 $ 446,149
October 15, 1998 $ 446,149
=========================================== ===================================
January 15, 1999 $ 446,149
April 15, 1999 $ 446,149
July 15, 1999 $ 446,149
October 15, 1999 $ 446,149
=========================================== ===================================
January 15, 2000 $ 446,149
April 15, 2000 $ 446,149
July 15, 2000 $ 446,149
October 15, 2000 $ 446,149
=========================================== ===================================
January 15, 2001 $ 446,149
April 15, 2001 $ 446,149
July 15, 2001 $ 446,149
October 15, 2001 $ 446,149
=========================================== ===================================
January 15, 2002 $12,492,171
April 15, 2002 $12,492,171
July 15, 2002 $12,492,171
October 15, 2002 $12,492,171
=========================================== ===================================
January 15, 2003 $16,953,660
April 15, 2003 $16,953,660
July 15, 2003 $16,953,660
October 15, 2003 $16,953,655
=========================================== ===================================
; provided that the scheduled installments of principal of the Tranche B
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche B Term Loans in
accordance with subsection 2.4C; and provided, further that the Tranche B
Term Loans and all other amounts owed hereunder with respect to the Tranche
B Term Loans shall be paid in full no later than October 15, 2003, and the
final installment payable by Company in respect of the Tranche B Term Loans
on such date shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by Company under
this Agreement with respect to the Tranche B Term Loans.
(iii) Scheduled Payments of Tranche C Term Loans. Company shall make
principal payments on the Tranche C Term Loans in installments on the dates
and in the amounts set forth below (it being understood and agreed that (a)
the amounts set forth below reflect the borrowing of the full amount of
Tranche C Term Loans on or prior to April 15, 1998; (b) in the event the
Delayed-Draw Term Loans have not been funded on or prior to April 15, 1998,
the amounts of the scheduled installments of principal (including the
installment due April 15, 1998) set forth below shall be reduced ratably in
an aggregate amount equal to the amount of unfunded Tranche C Term Loan
Commitments as of April 15, 1998; and (c) in the event that the Funding
Date of the Delayed-Draw Term Loans occurs after April 15, 1998, the
amounts of the scheduled installments of principal set forth below (as
adjusted in accordance with clause (b) above) for the period after April
15, 1998 shall be, as of such Funding Date, increased ratably in an
aggregate amount equal to the amount of such borrowing of Delayed-Draw Term
Loans):
============================ ===============================
DATE SCHEDULED
REPAYMENT OF
TRANCHE C TERM
LOANS
============================ ===============================
April 15, 1998 $ 250,000
July 15, 1998 $ 250,000
October 15, 1998 $ 250,000
============================ ===============================
January 15, 1999 $ 250,000
April 15, 1999 $ 250,000
July 15, 1999 $ 250,000
October 15, 1999 $ 250,000
---------------------------- ===============================
January 15, 2000 $ 250,000
April 15, 2000 $ 250,000
July 15, 2000 $ 250,000
October 15, 2000 $ 250,000
---------------------------- ===============================
January 15, 2001 $ 250,000
April 15, 2001 $ 250,000
July 15, 2001 $ 250,000
October 15, 2001 $ 250,000
---------------------------- ===============================
January 15, 2002 $ 250,000
April 15, 2002 $ 250,000
July 15, 2002 $ 250,000
October 15, 2002 $ 250,000
============================ ===============================
January 15, 2003 $ 250,000
April 15, 2003 $ 250,000
July 15, 2003 $ 250,000
October 15, 2003 $ 250,000
============================ ===============================
January 15, 2004 $ 54,750,000
April 15, 2004 $ 54,750,000
July 15, 2004 $ 54,750,000
October 15, 2004 $ 55,000,000
============================ ===============================
; provided that the scheduled installments of principal of the Tranche C
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche C Term Loans in
accordance with subsection 2.4C; and provided further, that the Tranche C
Term Loans and all other amounts owed hereunder with respect to the Tranche
C Term Loans shall be paid in full no later than October 15, 2004, and the
final installment payable by Company in respect of the Tranche C Term Loans
on such date shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by Company under
this Agreement with respect to the Tranche C Term Loans.
B. PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN COMMITMENTS.
(i) Voluntary Prepayments. Company may, upon written or telephonic
notice to Chase Co-Administrative Agent on or prior to 12:00 Noon (New York
time) on the date of prepayment, which notice, if telephonic, shall be
promptly confirmed in writing, at any time and from time to time prepay,
without premium or penalty, any Swing Line Loan on any Business Day in
whole or in part in an aggregate minimum amount of $250,000 and integral
multiples of $50,000 in excess of that amount. In addition, so long as no
Swing Line Loans are then outstanding, Company may, upon not less than one
Business Day's prior written or telephonic notice, in the case of Base Rate
Loans, and three Business Days' prior written or telephonic notice, in the
case of Eurodollar Rate Loans, in each case confirmed in writing to Chase
Co-Administrative Agent (which notice Chase Co-Administrative Agent will
promptly transmit by telefacsimile or telephone to each Lender), at any
time and from time to time prepay, without premium or penalty, the Loans
other than Swing Line Loans on any Business Day in whole or in part in an
aggregate minimum amount of $1,000,000 and integral multiples of $250,000
in excess of that amount; provided, however, that in the event Company
shall prepay a Eurodollar Rate Loan other than on the expiration of the
Interest Period applicable thereto, Company shall, at the time of such
prepayment, also pay the amount payable under Section 2.6D hereof. Notice
of prepayment having been given as aforesaid, the Loans shall become due
and payable on the prepayment date specified in such notice and in the
aggregate principal amount specified therein. Any voluntary prepayments
pursuant to this subsection 2.4B(i) shall be applied as specified in
subsection 2.4C.
(ii) Voluntary Reductions of Revolving Loan Commitments. Company may,
upon not less than three Business Days' prior written or telephonic notice
confirmed in writing to Chase Co-Administrative Agent (which notice Chase
Co-Administrative Agent will promptly transmit by telefacsimile or
telephone to each Lender), at any time and from time to time terminate in
whole or permanently reduce in part, without premium or penalty, (y) the
Revolving Loan Commitments in an amount up to the amount by which the
Revolving Loan Commitments exceed the Total Utilization of Revolving Loan
Commitments at the time of such proposed termination or reduction; provided
that any such partial reduction of the Revolving Loan Commitments shall be
in an aggregate minimum amount of $1,000,000 and integral multiples of
$250,000 in excess of that amount. Company's notice to Chase
Co-Administrative Agent shall designate the date (which shall be a Business
Day) of such termination or reduction and the amount of any partial
reduction, and such termination or reduction of the Revolving Loan
Commitments shall be effective on the date specified in such notice and
shall reduce the Revolving Loan Commitment, as applicable, of each Lender
proportionately to its Pro Rata Share. Any such voluntary reduction of the
Revolving Loan Commitments shall be applied as specified in subsection
2.4C.
(iii) Mandatory Prepayments and Mandatory Reductions of Revolving Loan
Commitments.
The Loans shall be prepaid and the Revolving Loan Commitments shall be
reduced in the manner provided in subsection 2.4C upon the occurrence of the
following circumstances:
(a) Prepayments and Reductions from Asset Sales. No later than
the first Business Day following the date of receipt by Company or any
of its Subsidiaries of the Cash Proceeds of any Asset Sale (other than
any portion of such proceeds that is reinvested (or scheduled for
reinvestment) in a Qualified Loan Portfolio and/or assets of the
general type used in the business of Company and its Subsidiaries
within 270 days from the date of receipt of such proceeds), Company
shall prepay the Loans (and/or the Revolving Loan Commitments shall be
reduced) in the amount of such proceeds not so reinvested (or
scheduled for such reinvestment); provided, that if the Net Cash
Proceeds of all such Asset Sales exceed $20,000,000 during Fiscal Year
1998 or $15,000,000 in any Fiscal Year thereafter, then in each case
the amount of such excess Net Cash Proceeds may not be reinvested (or
scheduled for reinvestment); provided further, that if the Net Cash
Proceeds of Asset Sales of businesses in any Fiscal Year exceed 10% of
Consolidated EBITDA for the preceding Fiscal Year, then the amount of
such excess Net Cash Proceeds may not be reinvested (or scheduled for
reinvestment); and provided further, that Company may not reinvest (or
schedule for reinvestment) Net Cash Proceeds upon the occurrence and
during the continuation of an Event of Default. Company shall, no
later than 365 days after receipt of any such Net Cash Proceeds that
have not theretofore been applied to the Obligations, make an
additional prepayment of the Loans (and/or the Revolving Loan
Commitments shall be reduced) in the full amount of all such proceeds
that have not therefore been so reinvested. Concurrently with any
prepayment of the Loans and/or reduction of the Commitments pursuant
to this subsection 2.4B(iii)(a), Company shall deliver to Chase
Co-Administrative Agent an Officer's Certificate demonstrating the
derivation of the Net Cash Proceeds of the correlative Asset Sale from
the gross sales price thereof. In the event that Company shall, at any
time after receipt of Cash Proceeds of any Asset Sale requiring a
prepayment or a reduction of the Revolving Loan Commitments pursuant
to this subsection 2.4B(iii)(a), determine that the prepayments and/or
reductions of the Revolving Loan Commitments previously made in
respect of such Asset Sale were in an aggregate amount less than that
required by the terms of this subsection 2.4B(iii)(a), Company shall
promptly cause to be made an additional prepayment of the Loans
(and/or reduction in the Revolving Loan Commitments) in an amount
equal to the amount of any such deficit, and Company shall
concurrently therewith deliver to Co-Administrative Agents an
Officer's Certificate demonstrating the derivation of the additional
Net Cash Proceeds resulting in such deficit.
(b) Prepayments and Reductions Due to Issuance of Debt. On or
prior to the first Business Day after receipt by Company or any of its
Subsidiaries of any proceeds of any Indebtedness (other than the Loans
and any other Indebtedness permitted by this Agreement), Company shall
prepay the Loans (and/or the Revolving Loan Commitments shall be
reduced) in an amount equal to the amount of such proceeds; provided
that payment or acceptance of the amounts provided for in this
subsection 2.4B(iii)(b) shall not constitute a waiver of any Event of
Default resulting from the incurrence of such Indebtedness or
otherwise prejudice any rights or remedies of Agents or Lenders.
(c) Prepayments and Reductions Due to Issuance of Equity
Securities. On or prior to the first Business Day after receipt by
Company or any of its Subsidiaries of any Equity Proceeds, Company
shall prepay the Loans (and/or the Revolving Loan Commitments shall be
reduced) in an amount equal to such Equity Proceeds; provided that
such Equity Proceeds shall not be applied to prepay Loans pursuant to
this subsection if (1) such Equity Proceeds were not derived from a
public offering of Securities and (2) such Equity Proceeds (y) are,
upon receipt, designated for reinvestment in the businesses of Company
and its Subsidiaries and (z) are within 30 days of receipt thereof by
Company or any of its Subsidiaries, reinvested in the businesses of
Company and its Subsidiaries.
(d) Prepayments and Reductions from Insurance and Condemnation
Proceeds. No later than the second Business Day following the date of
receipt by Company or any of its Subsidiaries of any cash payments
under any of the casualty insurance policies covering damage to or
loss of property maintained pursuant to subsection 6.4 resulting from
damage to or loss of all or any portion of the Collateral or any other
tangible asset (net of actual and documented reasonable costs incurred
by Company or any of its Subsidiaries in connection with adjustment
and settlement thereof, "INSURANCE PROCEEDS") or any proceeds
resulting from the taking of assets by the power of eminent domain,
condemnation or otherwise (net of actual and documented reasonable
costs incurred by Company or any of its Subsidiaries in connection
with adjustment and settlement thereof, "CONDEMNATION PROCEEDS")
(other than any portion of any such proceeds that is reinvested (or
scheduled for reinvestment) in assets of the general type used in the
business of Company and its Subsidiaries within 270 days from the date
of receipt of such proceeds), Company shall prepay the Loans (and/or
the Revolving Loan Commitments shall be reduced) in the amount of such
proceeds not so reinvested (or scheduled for such reinvestment).
Company shall, no later than 270 days after receipt of any such
Insurance Proceeds or Condemnation Proceeds that have not theretofore
been applied to the Obligations, make an additional prepayment of the
Loans (and/or the Revolving Loan Commitments shall be reduced) in the
full amount of all such proceeds that have not therefore been
reinvested in such assets.
(e) Prepayments and Reductions from Consolidated Excess Cash
Flow. In the event that there shall be Consolidated Excess Cash Flow
for any Fiscal Year (commencing with the Fiscal Year ending December
31, 1998), Company shall, no later than 100 days after the end of such
Fiscal Year, prepay the Loans (and/or the Revolving Loan Commitments
shall be reduced) in an aggregate amount equal to 50% of such
Consolidated Excess Cash Flow for such Fiscal Year; provided that, in
the event that, as of the last day of any such Fiscal Year, the
Leverage Ratio is less than 3.0:1.00, then for such Fiscal Year the
amount required to be prepaid pursuant to this subsection 2.4B(iii)(e)
shall be reduced to 25% of Consolidated Excess Cash Flow for such
Fiscal Year.
(f) Prepayments Due to Reductions or Restrictions of Revolving
Loan Commitments. Company shall prepay the Swing Line Loans and/or the
Revolving Loans from time to time to the extent necessary so that (y)
the Total Utilization of Revolving Loan Commitments shall not at any
time exceed the Revolving Loan Commitments then in effect, and (z) the
aggregate principal amount of all outstanding Swing Line Loans shall
not at any time exceed the Swing Line Loan Commitment then in effect.
All Swing Line Loans shall be prepaid in full prior to the prepayment
of any Revolving Loans pursuant to this subsection 2.4B(iii)(f).
C. APPLICATION OF PREPAYMENTS AND REDUCTIONS OF REVOLVING LOAN
COMMITMENTS.
(i) Application of Voluntary Prepayments by Type of Loans. Any
voluntary prepayments pursuant to subsection 2.4B(i) shall be applied:
first to repay outstanding Swing Line Loans to the full extent thereof,
second to repay outstanding Revolving Loans to the full extent thereof, and
third, to repay outstanding Term Loans to the full extent thereof.
(ii) Application of Mandatory Prepayments by Type of Loans. Any amount
(the "APPLIED AMOUNT") required to be applied as a mandatory prepayment of
the Loans and/or a reduction of the Revolving Loan Commitments pursuant to
subsections 2.4B(iii)(a)-(e) shall be applied first to prepay the Term
Loans to the full extent thereof, second, to the extent of any remaining
portion of the Applied Amount, to prepay the Swing Line Loans to the full
extent thereof and to permanently reduce the Revolving Loan Commitments by
the amount of such prepayment, third, to the extent of any remaining
portion of the Applied Amount, to prepay the Revolving Loans to the full
extent thereof and to further permanently reduce the Revolving Loan
Commitments by the amount of such prepayment, and fourth, to the extent of
any remaining portion of the Applied Amount, to further permanently reduce
the Revolving Loan Commitments to the full extent thereof.
(iii) Application of Prepayments of Term Loans to Tranche A Term
Loans, Tranche B Term Loans and Tranche C Term Loans and the Scheduled
Installments of Principal Thereof. Any prepayments of the Term Loans
pursuant to subsection 2.4B(i) or 2.4B(iii) shall be applied to prepay the
Tranche A Term Loans, the Tranche B Term Loans and the Tranche C Term Loans
on a pro rata basis in accordance with the respective outstanding principal
amounts thereof. Any mandatory prepayments applied to the Tranche A Term
Loans, the Tranche B Term Loans or the Tranche C Term Loans pursuant to
this subsection shall be applied on a pro rata basis (in accordance with
the respective outstanding principal amounts thereof) to each scheduled
installment of principal of the Tranche A Term Loans, the Tranche B Term
Loans or the Tranche C Term Loans, as the case may be, set forth in
subsection 2.4A(i), 2.4A(ii) or 2.4A(iii), respectively, that is unpaid at
the time of such prepayment.
(iv) Application of Prepayments to Base Rate Loans and Eurodollar Rate
Loans. Considering Tranche A Term Loans, Tranche B Term Loans, Tranche C
Term Loans and Revolving Loans being prepaid separately, any prepayment
thereof shall be applied first to Base Rate Loans to the full extent
thereof before application to Eurodollar Rate Loans, in each case in a
manner which minimizes the amount of any payments required to be made by
Company pursuant to subsection 2.6D.
D. APPLICATION OF PROCEEDS OF COLLATERAL AND PAYMENTS UNDER
SUBSIDIARY GUARANTY.
(i) Application of Proceeds of Collateral. Except as provided in
subsection 2.4B(iii)(a) with respect to prepayments from Net Asset Sale
Proceeds, all proceeds received by Collateral Agent in respect of any sale
of, collection from, or other realization upon all or any part of the
Collateral under any Collateral Document may, in the discretion of
Collateral Agent, be held by Collateral Agent as Collateral for, and/or
(then or at any time thereafter) applied in full or in part by Collateral
Agent against, the applicable Secured Obligations (as defined in such
Collateral Document) in the following order of priority:
(a) To the payment of all costs and expenses of such sale,
collection or other realization, including without limitation
reasonable compensation to Collateral Agent and its agents and
counsel, and all other reasonable expenses, liabilities and advances
made or incurred by Collateral Agent in connection therewith, and all
amounts for which Collateral Agent is entitled to indemnification
under such Collateral Document and all advances made by Collateral
Agent thereunder for the account of the applicable Loan Party, and to
the payment of all reasonable costs and expenses paid or incurred by
Collateral Agent in connection with the exercise of any right or
remedy under such Collateral Document, all in accordance with the
terms of this Agreement and such Collateral Document;
(b) thereafter, to the extent of any excess such proceeds, to the
payment of all other such Secured Obligations for the ratable benefit
of the holders thereof; and
(c) thereafter, to the extent of any excess such proceeds, to the
payment to or upon the order of such Loan Party or to whosoever may be
lawfully entitled to receive the same or as a court of competent
jurisdiction may direct.
(ii) Application of Payments Under Subsidiary Guaranty. All payments
received by Collateral Agent under the Subsidiary Guaranty shall be applied
promptly from time to time by Collateral Agent in the following order of
priority:
(a) To the payment of the reasonable costs and expenses of any
collection or other realization under the Subsidiary Guaranty,
including without limitation reasonable compensation to Collateral
Agent and its agents and counsel, and all expenses, liabilities and
advances made or incurred by Collateral Agent in connection therewith,
all in accordance with the terms of this Agreement and the Subsidiary
Guaranty;
(b) thereafter, to the extent of any excess such payments, to the
payment of all other Guaranteed Obligations (as defined in the
Subsidiary Guaranty) for the ratable benefit of the holders thereof;
and
(c) thereafter, to the extent of any excess such payments, to the
payment to the applicable Subsidiary Guarantor or to whosoever may be
lawfully entitled to receive the same or as a court of competent
jurisdiction may direct.
E. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) Manner and Time of Payment. All payments by Company of principal,
interest, fees and other Obligations hereunder and under the Notes shall be
made in same day funds and without defense, setoff or counterclaim, free of
any restriction or condition, and delivered to Chase Co-Administrative
Agent not later than 12:00 Noon (New York time) on the date due at the
Funding and Payment Office for the account of Lenders; funds received by
Chase Co-Administrative Agent after that time on such due date shall be
deemed to have been paid by Company on the next succeeding Business Day.
Company hereby authorizes Chase Co-Administrative Agent to charge its
accounts with such Chase Co-Administrative Agent in order to cause timely
payment to be made to Chase Co-Administrative Agent of all principal,
interest, fees and expenses due hereunder (subject to sufficient funds
being available in its accounts for that purpose).
(ii) Application of Payments to Principal and Interest. Except as
provided in subsection 2.2C, all payments in respect of the principal
amount of any Loan shall include payment of accrued interest on the
principal amount being repaid or prepaid, and all such payments (and in any
event any payments made in respect of any Loan on a date when interest is
due and payable with respect to such Loan) shall be applied to the payment
of interest before application to principal.
(iii) Apportionment of Payments. Aggregate principal and interest
payments shall be apportioned among all outstanding Loans to which such
payments relate, in each case proportionately to Lenders' respective Pro
Rata Shares. Chase Co-Administrative Agent shall promptly distribute to
each Lender, at its applicable Lending Office specified on Schedule 2.1 or
at such other address as such Lender may request, its Pro Rata Share of all
such payments received by Chase Co-Administrative Agent and the commitment
fees of such Lender when received by Chase Co-Administrative Agent pursuant
to subsection 2.3. Notwithstanding the foregoing provisions of this
subsection 2.4E(iii) if, pursuant to the provisions of subsection 2.6C, any
Notice of Conversion/Continuation is withdrawn as to any Affected Lender or
if any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share
of any Eurodollar Rate Loans, Chase Co-Administrative Agent shall give
effect thereto in apportioning payments received thereafter.
(iv) Payments on Business Days. Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day,
such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the payment of
interest hereunder or of the commitment fees hereunder, as the case may be.
(v) Notation of Payment. Each Lender agrees that before disposing of
any Note held by it, or any part thereof (other than by granting
participations therein), that Lender will make a notation thereon of all
Loans evidenced by that Note and all principal payments previously made
thereon and of the date to which interest thereon has been paid; provided
that the failure to make (or any error in the making of) a notation of any
Loan made under such Note shall not limit or otherwise affect the
obligations of Company hereunder or under such Note with respect to any
Loan or any payments of principal or interest on such Note.
2.5 USE OF PROCEEDS.
A. TRANCHE A TERM LOANS AND TRANCHE B TERM LOANS. The proceeds of the
Tranche A Term Loans and the Tranche B Term Loans were applied in accordance
with the provisions of the Original Credit Agreement and the Existing Credit
Agreement.
B. TRANCHE C TERM LOANS. The proceeds of the Tranche C Term Loans shall be
applied by Company (a) on the date of the initial funding of the Tranche C Term
Loans (x) to repay Existing Revolving Loans and (y) to make capital
contributions and/or loans to Merger Sub, which will utilize the proceeds
thereof to pay for Tendered Union Shares and to pay costs and expenses arising
from the Tender Offer and related transactions and (b) in the case of
Delayed-Draw Term Loans, to make cash payments to the holders of Union Common
Stock pursuant to the Union Merger Agreement.
C. REVOLVING LOANS; SWING LINE LOANS. Revolving Loans and Swing Line Loans
in an aggregate amount not to exceed $10,000,000 at any time outstanding may be
used to finance the general corporate purposes of Company and its Subsidiaries.
Revolving Loans and Swing Line Loans in an additional amount not to exceed
$48,000,000 at any time outstanding may be used to finance expenditures which
are included in the definition of Consolidated Capital Expenditures; provided
that Revolving Loans and Swing Line Loans in an aggregate amount not to exceed
$58,000,000 at any time outstanding may be used to finance such acquisitions if
at all times such additional amount of Revolving Loans is outstanding the sum of
(i) unrestricted Cash and Cash Equivalents on the balance sheet of Company plus
(ii) the excess of the Revolving Loan Commitments over the Total Utilization of
Revolving Loan Commitments equals or exceeds $10,000,000.
D. COMPLIANCE WITH LAWS. Company hereby undertakes that no portion of the
proceeds of any Loans or other extensions of credit under this Agreement shall
be used by any Loan Party in any manner which would be illegal under, or which
would cause the invalidity or unenforceability (in each case in whole or in
part) of any Loan Document under, any applicable law.
E. MARGIN REGULATIONS. Without limiting the generality of subsection 2.5,
no portion of the proceeds of any borrowing under this Agreement shall be used
by Company or any of its Subsidiaries in any manner that might cause the
borrowing or the application of such proceeds to violate Regulation G,
Regulation U, Regulation T or Regulation X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board or to violate the
Exchange Act, in each case as in effect on the date or dates of such borrowing
and such use of proceeds.
2.6 SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS.
Notwithstanding any other provision of this Agreement to the contrary, the
following provisions shall govern with respect to Eurodollar Rate Loans as to
the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as practicable
after 11:00 A.M. (New York time) on each Interest Rate Determination Date,
Chase Co-Administrative Agent shall determine (which determination shall,
absent manifest error, be final, conclusive and binding upon all parties)
the interest rate that shall apply to the Eurodollar Rate Loans for which
an interest rate is then being determined for the applicable Interest
Period and shall promptly give notice thereof (in writing or by telephone
confirmed in writing) to Company and each Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event that
Chase Co-Administrative Agent shall have reasonably determined (which
determination shall be final and conclusive and binding upon all parties
hereto), on any Interest Rate Determination Date with respect to any
Eurodollar Rate Loans, that by reason of circumstances arising after the
date of this Agreement affecting the London interbank market, adequate and
fair means do not exist for ascertaining the interest rate applicable to
such Loans on the basis provided for in the definition of Adjusted
Eurodollar Rate Chase Co-Administrative Agent shall on such date give
notice (by telecopy or by telephone confirmed in writing) to Company and
each Lender of such determination, whereupon (i) no Loans may be made as,
or converted to, Eurodollar Rate Loans, until such time as Chase
Co-Administrative Agent notifies Company and Lenders that the circumstances
giving rise to such notice no longer exist (such notification not to be
unreasonably withheld or delayed) and (ii) any Notice of Borrowing or
Notice of Conversion/Continuation given by Company with respect to the
Loans in respect of which such determination was made shall be deemed to be
rescinded by Company.
C. ILLEGALITY OR IMPRACTICABILITY OF EURODOLLAR RATE LOANS. In the
event that on any date any Lender shall have reasonably determined (which
determination shall be final and conclusive and binding upon all parties
hereto but shall be made only after consultation with Company and Chase
Co-Administrative Agent) that the making, maintaining or continuation of
its Eurodollar Rate Loans (i) has become unlawful as a result of compliance
by such Lender in good faith with any law, treaty, governmental rule,
regulation, guideline or order (or would conflict with any such treaty,
governmental rule, regulation, guideline or order not having the force of
law even though the failure to comply therewith would not be unlawful) or
(ii) has become impracticable, or would cause such Lender material
hardship, as a result of contingencies occurring after the date of this
Agreement which materially and adversely affect the London interbank
market, then, and in any such event, such Lender shall be an "AFFECTED
LENDER" and it shall on that day give notice (by telecopy or by telephone
confirmed in writing) to Company and Chase Co-Administrative Agent of such
determination (which notice Chase Co-Administrative Agent shall promptly
transmit to each other Lender). Thereafter (a) the obligation of the
Affected Lender to make Loans as, or to convert Loans to, Eurodollar Rate
Loans, shall be suspended until such notice shall be withdrawn by the
Affected Lender, (b) to the extent such determination by the Affected
Lender relates to a Eurodollar Rate Loan then being requested by Company
pursuant to a Notice of Borrowing or a Notice of Conversion/Continuation,
the Affected Lender shall make such Loan as (or convert such Loan to, as
the case may be) a Base Rate Loan, (c) the Affected Lender's obligation to
maintain its outstanding Eurodollar Rate Loans, as the case may be (the
"AFFECTED LOANS"), shall be terminated at the earlier to occur of the
expiration of the Interest Period then in effect with respect to the
Affected Loans or when required by law, and (d) the Affected Loans shall
automatically convert into Base Rate Loans on the date of such termination.
Notwithstanding the foregoing, to the extent a determination by an Affected
Lender as described above relates to a Eurodollar Rate Loan then being
requested by Company pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, Company shall have the option, subject to the
provisions of subsection 2.6D, to rescind such Notice of Borrowing or
Notice of Conversion/Continuation as to all Lenders by giving notice (by
telecopy or by telephone confirmed in writing) to Chase Co-Administrative
Agent of such rescission on the date on which the Affected Lender gives
notice of its determination as described above (which notice of rescission
Chase Co-Administrative Agent shall promptly transmit to each other
Lender). Except as provided in the immediately preceding sentence, nothing
in this subsection 2.6C shall affect the obligation of any Lender other
than an Affected Lender to make or maintain Loans as, or to convert Loans
to, Eurodollar Rate Loans in accordance with the terms of this Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST PERIODS.
Company shall compensate each Lender, upon written request by that Lender
(which request shall set forth the basis for requesting such amounts), for
all reasonable losses, expenses and liabilities (including, without
limitation, any interest paid by that Lender to lenders of funds borrowed
by it to make or carry its Eurodollar Rate Loans and any loss, expense or
liability sustained by that Lender in connection with the liquidation or
re-employment of such funds) which that Lender may sustain: (i) if for any
reason (other than a default by that Lender) a borrowing of any Eurodollar
Rate Loan does not occur on a date specified therefor in a Notice of
Borrowing or a telephonic request for borrowing, or a conversion to or
continuation of any Eurodollar Rate Loan does not occur on a date specified
therefor in a Notice of Conversion/Continuation or a telephonic request for
conversion or continuation, (ii) if any prepayment (including without
limitation any prepayment pursuant to subsection 2.4B(i)) or conversion of
any of its Eurodollar Rate Loans occurs on a date that is not the last day
of an Interest Period applicable to that Loan, (iii) if any prepayment of
any of its Eurodollar Rate Loans is not made on any date specified in a
notice of prepayment given by Company, or (iv) as a consequence of any
other default by Company in the repayment of its Eurodollar Rate Loans when
required by the terms of this Agreement.
E. BOOKING OF EURODOLLAR RATE LOANS. Any Lender may make, carry or
transfer Eurodollar Rate Loans at, to, or for the account of any of its
branch offices or the office of an Affiliate of that Lender.
F. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR RATE LOANS.
Calculation of all amounts payable to a Lender under this subsection 2.6
and under subsection 2.7A shall be made as though that Lender had actually
funded each of its relevant Eurodollar Rate Loans through the purchase of a
Eurodollar deposit bearing interest at the rate obtained pursuant to clause
(i) of the definition of Adjusted Eurodollar Rate in an amount equal to the
amount of such Eurodollar Rate Loan and having a maturity comparable to the
relevant Interest Period and through the transfer of such Eurodollar
deposit from an offshore office of that Lender to a domestic office of that
Lender in the United States of America; provided, however, that each Lender
may fund each of its Eurodollar Rate Loans in any manner it sees fit and
the foregoing assumptions shall be utilized only for the purposes of
calculating amounts payable under this subsection 2.6 and under subsection
2.7A.
G. EURODOLLAR RATE LOANS AFTER DEFAULT. After the occurrence of and
during the continuation of a Potential Event of Default or an Event of
Default, (i) Company may not elect to have a Loan be made or maintained as,
or converted to, a Eurodollar Rate Loan after the expiration of any
Interest Period then in effect for that Loan and (ii) subject to the
provisions of subsection 2.6D, any Notice of Borrowing or Notice of
Conversion/Continuation given by Company with respect to a requested
borrowing or conversion/continuation that has not yet occurred shall be
deemed to be rescinded by Company.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to the provisions of
subsection 2.7B (which shall be controlling with respect to the matters covered
thereby), in the event that any law, treaty or governmental rule, regulation or
order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or
governmental authority, in each case that becomes effective after the Closing
Date, or compliance by such Lender with any guideline, request or directive
issued or made after the Closing Date by any central bank or other governmental
or quasi-governmental authority (whether or not having the force of law):
(i) results in a change in the basis of taxation of such Lender (or
its applicable lending office) (other than a change with respect to any Tax
on the overall net income of such Lender) with respect to this Agreement or
any of its obligations hereunder or any payments to such Lender (or its
applicable lending office) of principal, interest, fees or any other amount
payable hereunder;
(ii) imposes, modifies or holds applicable any reserve (including,
without limitation, any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement against assets held by, or deposits or other liabilities in or
for the account of, or advances or loans by, or other credit extended by,
or any other acquisition of funds by, any office of such Lender (other than
any such reserve or other requirements with respect to Eurodollar Rate
Loans that are reflected in the definition of Adjusted Eurodollar Rate; or
(iii) imposes any other condition (other than with respect to a Tax
matter) on or affecting such Lender (or its applicable lending office) or
its obligations hereunder, or the London interbank market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Eurodollar Rate Loans hereunder or to
reduce any amount received or receivable by such Lender (or its applicable
lending office) with respect thereto; then, in any such case, Lender shall
promptly notify Company and Chase Co-Administrative Agent thereof and Company
shall promptly pay to such Lender, upon receipt of the statement referred to in
the next sentence, such additional amount or amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Lender shall reasonably determine) as may be necessary to compensate
such Lender for any such increased cost or reduction in amounts received or
receivable hereunder. Such Lender shall deliver to Company (with a copy to Chase
Co-Administrative Agent) a written statement, setting forth in reasonable detail
the basis for calculating the additional amounts owed to such Lender under this
subsection 2.7A, which statement shall be prima facie evidence of such
additional amounts.
B. WITHHOLDING OF TAXES.
(i) Payments to Be Free and Clear. All sums payable by Company under
this Agreement and the other Loan Documents shall (except to the extent
required by law) be paid free and clear of, and without any deduction or
withholding on account of, any Tax (other than a Tax on the overall net
income of any Lender) imposed, levied, collected, withheld or assessed by
or within the United States of America or any political subdivision in or
of the United States of America or any other jurisdiction from which a
payment is made by or on behalf of Company.
(ii) Withholding of Taxes. If Company or any other Person is required
by law to make any deduction or withholding on account of any such Tax from
any sum paid or payable by Company to Chase Co-Administrative Agent or any
Lender under any of the Loan Documents:
(a) Company shall notify Chase Co-Administrative Agent of any
such requirement or any change in any such requirement as soon as
Company becomes aware of it;
(b) Company shall pay any such Tax before the date on which
penalties attach thereto, such payment to be made (if the liability to
pay is imposed on Company) for its own account or (if that liability
is imposed on Chase Co-Administrative Agent or such Lender, as the
case may be) on behalf of and in the name of Chase Co-Administrative
Agent or such Lender;
(c) the sum payable by Company in respect of which the relevant
deduction, withholding or payment is required shall be increased to
the extent necessary to ensure that, after the making of that
deduction, withholding or payment, Chase Co-Administrative Agent or
such Lender, as the case may be, receives on the due date a net sum
equal to what it would have received had no such deduction,
withholding or payment been required or made; and
(d) within 30 days after paying any sum from which it is required
by law to make any deduction or withholding, and within 30 days after
the due date of payment of any Tax which it is required by clause (b)
above to pay, Company shall deliver to Chase Co-Administrative Agent
evidence of such deduction, withholding or payment and of the
remittance thereof to the relevant taxing or other authority;
provided that no such additional amount shall be required to be paid to any
Lender under clause (c) above except to the extent that any change after the
Closing Date (in the case of each Existing Lender), after the Effective Date (in
the case of each New Lender) or after the date of the Assignment Agreement
pursuant to which such Lender became a Lender (in the case of each other Lender)
in any such requirement for a deduction, withholding or payment as is mentioned
therein shall result in an increase in the rate of such deduction, withholding
or payment from that in effect at the date of this Agreement or at the date of
such Assignment Agreement, as the case may be, in respect of payments to such
Lender.
(iii) Evidence of Exemption from U.S. Withholding Tax.
(a) Each Lender that is organized under the laws of any
jurisdiction other than the United States or any state or other
political subdivision thereof (for purposes of this subsection
2.7B(iii), a "Non-U.S. Lender") shall deliver to Chase
Co-Administrative Agent for transmission to Company, on or prior to
the Closing Date (in the case of each Existing Lender), on or prior to
the Effective Date (in the case of each New Lender) or on or prior to
the date of the Assignment Agreement pursuant to which it becomes a
Lender (in the case of each other Lender), and at such other times as
may be necessary in the determination of Company or Chase
Co-Administrative Agent (each in the reasonable exercise of its
discretion), (1) two original copies of Internal Revenue Service Form
1001 or 4224 (or any successor forms), accurately completed and duly
executed by such Lender, together with any other certificate or
statement of exemption required under the Internal Revenue Code or the
regulations issued thereunder to establish that such Lender is not
subject to deduction or withholding of United States federal income
tax with respect to any payments to such Lender of principal,
interest, fees or other amounts payable under any of the Loan
Documents or (2) if such Lender is not a "bank" or other Person
described in Section 881(c)(3) of the Internal Revenue Code and cannot
deliver either Internal Revenue Service Form 1001 or 4224 (or any
successor forms) pursuant to clause (1) above, a Certificate re
Non-Bank Status together with two original copies of Internal Revenue
Service Form W-8 (or any successor form), properly completed and duly
executed by such Lender, together with any other certificate or
statement of exemption required under the Internal Revenue Code or the
regulations issued thereunder to establish that such Lender is not
subject to deduction or withholding of United States federal income
tax with respect to any payments to such Lender of interest payable
under any of the Loan Documents.
(b) Each Lender required to deliver any forms, certificates or
other evidence with respect to United States federal income tax
withholding matters pursuant to subsection 2.7B(iii)(a) hereby agrees,
from time to time after the initial delivery by such Lender of such
forms, certificates or other evidence, whenever a lapse in time or
change in circumstances renders such forms, certificates or other
evidence obsolete or inaccurate in any material respect, such Lender
shall (1) deliver to Chase Co-Administrative Agent for transmission to
Company two new original copies of Internal Revenue Service Form 1001
or 4224 (or any successor forms), or a Certificate re Non-Bank Status
and two original copies of Internal Revenue Service Form W-8 (or any
successor form), as the case may be, accurately completed and duly
executed by such Lender, together with any other certificate or
statement of exemption required in order to confirm or establish that
such Lender is not subject to deduction or withholding of United
States federal income tax with respect to payments to such Lender
under the Loan Documents or (2) immediately notify Chase
Co-Administrative Agent and Company of its inability to deliver any
such forms, certificates or other evidence.
(c) Company shall not be required to pay any additional amount to
any Non-U.S. Lender under clause (c) of subsection 2.7B(ii) in respect
of deductions or withholdings of United States federal income taxes if
such Lender shall have failed to satisfy the requirements of
subsection 2.7B(iii)(a) or 2.7B(iii)(b); provided that if such Lender
shall have satisfied such requirements on the Closing Date (in the
case of each Existing Lender), on the Effective Date (in the case of
each New Lender) or on the date of the Assignment Agreement pursuant
to which it became a Lender (in the case of each other Lender),
nothing in this subsection 2.7B(iii)(c) shall relieve Company of its
obligation to pay any additional amounts pursuant to clause (c) of
subsection 2.7B(ii) in the event that, as a result of any change after
the Closing Date in any applicable law, treaty or governmental rule,
regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer
properly entitled to deliver forms, certificates or other evidence at
a subsequent date establishing the fact that such Lender is not
subject to withholding as described in subsection 2.7B(iii)(a) or
2.7B(iii)(b).
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have determined that
the adoption, effectiveness, phase-in or applicability after the Closing Date of
any law, rule or regulation (or any provision thereof) regarding capital
adequacy, or any change therein or in the interpretation or administration
thereof by the National Association of Insurance Commissioners, any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its applicable lending
office) with any guideline, request or directive regarding capital adequacy
(whether or not having the force of law) of the National Association of
Insurance Commissioners, any such governmental authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on the capital of such Lender or any corporation controlling such Lender as a
consequence of, or with reference to, such Lender's Loans or Commitments or
Letters of Credit or participations therein or other obligations hereunder with
respect to the Loans or the Letters of Credit to a level below that which such
Lender reasonably determines such Lender or such controlling corporation could
have achieved but for such adoption, effectiveness, phase-in, applicability,
change or compliance (taking into consideration the policies of such Lender or
such controlling corporation with regard to capital adequacy), then from time to
time, within fifteen Business Days after receipt by Company from such Lender of
the statement referred to in the next sentence, Company shall pay to such Lender
such additional amount or amounts as will compensate such Lender or such
controlling corporation on an after-tax basis for such reduction. Such Lender
shall deliver to Company (with a copy to Chase Co-Administrative Agent) a
written statement, setting forth in reasonable detail the basis of the
calculation of such additional amounts, which statement shall be conclusive and
binding upon all parties hereto absent manifest error.
D. SUBSTITUTE LENDERS. In the event Company is required under the
provisions of this subsection 2.7 to make payments in a material amount to any
Lender or in the event any Lender fails to lend to Company in accordance with
this Agreement, Company may, so long as no Event of Default or Potential Event
of Default shall have occurred and be continuing, elect to terminate such Lender
as a party to this Agreement; provided that, concurrently with such termination,
(i) Company shall pay that Lender all principal, interest and fees and other
amounts (including without limitation amounts, if any, owed under this
subsection 2.7) due to be paid to such Lender with respect to all periods
through such date of termination, (ii) another financial institution
satisfactory to Company and Co-Administrative Agents (or, in the case of a
Co-Administrative Agent that is also the Lender to be terminated, its successor
Co-Administrative Agent) shall agree, as of such date, to become a Lender for
all purposes under this Agreement (whether by assignment or amendment) and to
assume all obligations of the Lender to be terminated as of such date, and (iii)
all documents and supporting materials necessary, in the judgment of
Co-Administrative Agents (or, in the case of a Co-Administrative Agent that is
also the Lender to be terminated, its successor Co-Administrative Agent) to
evidence the substitution of such Lender shall have been received and approved
by Co-Administrative Agents as of such date.
2.8 OBLIGATION OF LENDERS AND ISSUING LENDERS TO MITIGATE.
Each Lender and Issuing Lender agrees that, as promptly as practicable
after the officer of such Lender or Issuing Lender responsible for administering
the Loans or Letters of Credit of such Lender or Issuing Lender, as the case may
be, becomes aware of the occurrence of an event or the existence of a condition
that would cause such Lender to become an Affected Lender or that would entitle
such Lender or Issuing Lender to receive payments under subsection 2.7 or
subsection 3.6, it will, to the extent not inconsistent with the internal
policies of such Lender or Issuing Lender and any applicable legal or regulatory
restrictions, use reasonable efforts (i) to make, issue, fund or maintain the
Commitments of such Lender or the affected Loans or Letters of Credit of such
Lender or Issuing Lender through another lending or letter of credit office of
such Lender or Issuing Lender, or (ii) take such other measures as such Lender
or Issuing Lender may deem reasonable, if as a result thereof the circumstances
which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such
Lender or Issuing Lender pursuant to subsection 2.7 or subsection 3.6 would be
materially reduced and if, as determined by such Lender or Issuing Lender in its
sole discretion, the making, issuing, funding or maintaining of such Commitments
or Loans or Letters of Credit through such other lending or letter of credit
office or in accordance with such other measures, as the case may be, would not
otherwise materially adversely affect such Commitments or Loans or Letters of
Credit or the interests of such Lender or Issuing Lender; provided that such
Lender or Issuing Lender will not be obligated to utilize such other lending or
letter of credit office pursuant to this subsection 2.8 unless Company agrees to
pay all incremental expenses incurred by such Lender or Issuing Lender as a
result of utilizing such other lending or letter of credit office. A certificate
as to the amount of any such expenses payable by Company pursuant to this
subsection 2.8 (setting forth in reasonable detail the basis for requesting such
amount) submitted by such Lender or Issuing Lender to Company (with a copy to
Chase Co-Administrative Agent) shall be conclusive absent manifest error.
SECTION 3.
LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF PARTICIPATIONS
THEREIN.
A. LETTERS OF CREDIT. Company acknowledges and confirms that Schedule 3.1
annexed hereto sets forth each letter of credit issued under the Existing Credit
Agreement (collectively, the "EXISTING LETTERS OF CREDIT") and outstanding as of
the Effective Date. Company hereby represents, warrants, agrees, covenants and
(a) reaffirms that it has no (and it permanently and irrevocably waives and
releases Agents and Lenders from any, to the extent arising on or prior to the
Effective Date) defense, set off, claim or counterclaim against any Agent or
Lender in regard to its Obligations in respect of such Existing Letters of
Credit and (b) reaffirms its obligation to reimburse the applicable Issuing
Lenders for honored drawings under such Existing Letters of Credit in accordance
with the terms and conditions of this Agreement and the other Loan Documents
applicable to Letters of Credit issued hereunder. Based on the foregoing, each
Lender agrees that (1) each Existing Letter of Credit which is a Standby Letter
of Credit shall, as of the Effective Date, be deemed for all purposes of this
Agreement to be a Standby Letter of Credit issued hereunder, and (2) each
Existing Letter of Credit which is a Commercial Letter of Credit shall, as of
the Effective Date, be deemed for all purposes of this Agreement to be a
Commercial Letter of Credit issued hereunder. Company also acknowledges that set
forth on Schedule 3.1 are certain letters of credit (the "UNION LETTERS OF
CREDIT") issued by BankBoston, N.A. for the account of Union and/or its
Subsidiaries which are outstanding as of the Effective Date. Company hereby
requests, and the Lenders hereby agree that, from and after the Union Merger
Date such letters of credit shall be deemed to be Letters of Credit issued and
outstanding under this Agreement from and after the Union Effective Date;
provided that, the Company hereby releases Agents and Lenders, to the extent
arising prior to the Union Merger Date, from any defense, setoff, claim or
counterclaim against Agent or Lender in regard to its Obligations in respect of
such Letters of Credit. In addition to the foregoing and in addition to Company
requesting that Lenders make Revolving Loans pursuant to subsection 2.1A(iii),
and that Swing Line Lender make Swing Line Loans pursuant to subsection
2.1A(iv), Company may request, in accordance with the provisions of this
subsection 3.1, from time to time during the period from the Effective Date to
but excluding the Revolving Loan Commitment Termination Date, that one or more
Lenders issue Letters of Credit for the account of Company for the purposes
specified in the definitions of Commercial Letters of Credit and Standby Letters
of Credit. Subject to the terms and conditions of this Agreement and in reliance
upon the representations and warranties of Company herein set forth, any one or
more Lenders may, but (except as provided in subsection 3.1B(ii)) shall not be
obligated to, issue such Letters of Credit in accordance with the provisions of
this subsection 3.1; provided that Company shall not request that any Lender
issue (and no Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the
Total Utilization of Revolving Loan Commitments would exceed the Revolving
Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance,
the Letter of Credit Usage would exceed $15,000,000;
(iii) any Standby Letter of Credit having an expiration date later
than the earlier of (a) the Revolving Loan Commitment Termination Date and
(b) the date which is one year from the date of issuance of such Standby
Letter of Credit; provided that the immediately preceding clause (b) shall
not prevent any Issuing Lender from agreeing that a Standby Letter of
Credit will automatically be extended for one or more successive periods
not to exceed one year each unless such Issuing Lender elects not to extend
for any such additional period; provided further that, unless Requisite
Lenders otherwise consent, such Issuing Lender shall give notice that it
will not extend such Standby Letter of Credit if it has knowledge that an
Event of Default has occurred and is continuing on the last day on which
such Issuing Lender may give notice to the beneficiary that it will not
extend such Standby Letter of Credit;
(iv) any Commercial Letter of Credit (a) having an expiration date
later than the earlier of (X) 30 days prior to the Revolving Loan
Commitment Termination Date and (Y) the date which is 180 days from the
date of issuance of such Commercial Letter of Credit or (b) that is
otherwise unacceptable to the applicable Issuing Lender in its reasonable
discretion;
(v) any Letter of Credit denominated in a currency other than Dollars;
or
(vi) any Letter of Credit during any period when a Lender Default
exists, unless each Issuing Lender has entered into arrangements
satisfactory to it and Company to eliminate such Issuing Lender's risk with
respect to the Defaulting Lender, including by cash collateralizing such
Defaulting Lender's Pro Rata Share of the Letter of Credit Usage (after
giving effect to the issuance of the proposed Letter of Credit).
B. MECHANICS OF ISSUANCE.
(i) Notice of Issuance. Whenever Company desires the issuance of a
Letter of Credit, it shall deliver to Chase Co-Administrative Agent, at the
Funding and Payment Office, a Notice of Issuance of Letter of Credit no
later than 12:00 Noon (New York time) at least five Business Days, or such
shorter period as may be agreed to by the Issuing Lender in any particular
instance, in advance of the proposed date of issuance. The Notice of
Issuance of Letter of Credit shall specify (a) the proposed date of
issuance (which shall be a Business Day), (b) the face amount of or maximum
aggregate liability under, as applicable, the Letter of Credit, (c) the
expiration date of the Letter of Credit, (d) the name and address of the
beneficiary, and (e) the verbatim text of the proposed Letter of Credit or
the proposed terms and conditions thereof, including a precise description
of any documents and the verbatim text of any certificates to be presented
by the beneficiary which, if presented by the beneficiary prior to the
expiration date of the Letter of Credit, would require the Issuing Lender
to make payment under the Letter of Credit; provided that the Issuing
Lender, in its reasonable discretion, may require changes in the text of
the proposed Letter of Credit or any such documents or certificates;
provided further that no Letter of Credit shall require payment against a
conforming draft or other request for payment to be made thereunder on the
same business day (under the laws of the jurisdiction in which the office
of the Issuing Lender to which such draft or other request for payment is
required to be presented is located) that such draft or other request for
payment is presented if such presentation is made after 10:00 A.M. (in the
time zone of such office of the Issuing Lender) on such business day.
Company shall notify the applicable Issuing Lender (and Chase
Co-Administrative Agent, if Chase Co-Administrative Agent is not such
Issuing Lender) prior to the issuance of any Letter of Credit in the event
that any of the matters to which Company is required to certify in the
applicable Notice of Issuance of Letter of Credit is no longer true and
correct as of the proposed date of issuance of such Letter of Credit, and
upon the issuance of any Letter of Credit, Company shall be deemed to have
re-certified, as of the date of such issuance, as to the matters to which
Company is required to certify in the applicable Notice of Issuance of
Letter of Credit.
(ii) Determination of Issuing Lender. Upon receipt by Chase
Co-Administrative Agent of a Notice of Issuance of Letter of Credit
pursuant to subsection 3.1B(i) requesting the issuance of a Letter of
Credit, in the event Chase Co-Administrative Agent elects to issue such
Letter of Credit, Chase Co-Administrative Agent shall promptly so notify
Company, and such Chase Co-Administrative Agent shall be the Issuing Lender
with respect thereto. In the event that Chase Co-Administrative Agent, in
its sole discretion, elects not to issue such Letter of Credit, Chase
Co-Administrative Agent shall promptly so notify the Company, whereupon
Company may request any other Lender to issue such Letter of Credit by
delivering to such Lender a copy of the applicable Notice of Issuance of
Letter of Credit. Any Lender so requested to issue such Letter of Credit
shall promptly notify Company and Chase Co-Administrative Agent whether or
not, in its sole discretion, it has elected to issue such Letter of Credit,
and any such Lender which so elects to issue such Letter of Credit shall be
the Issuing Lender with respect thereto. In the event that all other
Lenders shall have declined to issue such Letter of Credit, notwithstanding
the prior election of Chase Co-Administrative Agent not to issue such
Letter of Credit, Chase Co-Administrative Agent shall be obligated to issue
such Letter of Credit and shall be the Issuing Lender with respect thereto,
notwithstanding the fact that the sum of the Letter of Credit Usage with
respect to such Letter of Credit and with respect to all other Letters of
Credit issued by Chase Co-Administrative Agent, when aggregated with Chase
Co-Administrative Agent's outstanding Revolving Loans and Swing Line Loans,
may exceed Chase Co-Administrative Agent's Revolving Loan Commitment then
in effect.
(iii) Issuance of Letter of Credit. Upon satisfaction or waiver (in
accordance with subsection 10.6) of the conditions set forth in subsection
4.5, the Issuing Lender shall issue the requested Letter of Credit in
accordance with the Issuing Lender's standard operating procedures (any
such issuance by Chase Co-Administrative Agent being effected through the
Funding and Payment Office), and upon its issuance of such Letter of Credit
the Issuing Lender shall promptly notify Chase Co-Administrative Agent and
each Lender of such issuance, which notice shall be accompanied by a copy
of such Letter of Credit.
(iv) Reports to Lenders. Within 30 days after the end of each calendar
quarter ending after the Closing Date, so long as any Letter of Credit
shall have been outstanding during such calendar quarter, each Issuing
Lender shall deliver to Chase Co-Administrative Agent and Chase
Co-Administrative Agent shall deliver to each Lender a report setting forth
for such calendar quarter the daily maximum amount available to be drawn
under the Letters of Credit that were outstanding during such calendar
quarter.
C. LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS OF CREDIT. Immediately
upon the issuance of each Letter of Credit, each Lender having a Revolving Loan
Commitment shall be deemed to, and hereby agrees to, have irrevocably purchased
from the Issuing Lender a participation in such Letter of Credit and any
drawings honored or payments made thereunder in an amount equal to such Lender's
Pro Rata Share (with respect to the Revolving Loan Commitments) of the maximum
amount which is or at any time may become available to be drawn or required to
be paid thereunder.
3.2 LETTER OF CREDIT FEES.
Company agrees to pay the following amounts to each Issuing Lender with
respect to Letters of Credit issued by it for the account of Company:
(i) with respect to each Letter of Credit, (a) a fronting fee equal to
1/4 of 1% per annum of the daily maximum amount available to be drawn under
such Letter of Credit and (b) a Letter of Credit fee equal to the product
of (x) the Applicable Eurodollar Rate Margin with respect to Revolving
Loans and (y) the daily maximum amount available to be drawn under such
Letter of Credit, in each case payable in arrears on and to each January
15, April 15, July 15 and October 15 of each year, and computed on the
basis of a 360-day year for the actual number of days elapsed; and
(ii) with respect to the issuance, amendment or transfer of each
Letter of Credit and each drawing made thereunder (without duplication of
the fees payable under clause (i) above), documentary and processing
charges in accordance with such Issuing Lender's standard schedule for such
charges in effect at the time of such issuance, amendment, transfer or
drawing, as the case may be.
Promptly upon receipt by such Issuing Lender of any amount described in clause
(i)(b) of this subsection 3.2, such Issuing Lender shall distribute to each
other Lender its Pro Rata Share of such amount.
3.3 DRAWINGS AND PAYMENTS AND REIMBURSEMENT OF AMOUNTS PAID UNDER LETTERS
OF CREDIT.
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO REQUESTS FOR DRAWINGS
AND PAYMENTS. In determining whether to honor any drawing or request for payment
under any Letter of Credit by the beneficiary thereof, the Issuing Lender shall
be responsible only to determine that the documents and certificates required to
be delivered under such Letter of Credit have been delivered and that they
comply on their face with the requirements of such Letter of Credit.
B. REIMBURSEMENT BY COMPANY OF AMOUNTS PAID UNDER LETTERS OF CREDIT. In the
event an Issuing Lender has determined to honor a drawing or request for payment
under a Letter of Credit issued by it, such Issuing Lender shall immediately
notify Company and Chase Co-Administrative Agent, and Company shall reimburse
such Issuing Lender on or before the Business Day immediately following the date
on which such drawing is honored or such payment is made (the applicable
"REIMBURSEMENT DATE"), in an amount in same day funds equal to the amount of
such drawing; provided that, anything contained in this Agreement to the
contrary notwithstanding, (i) unless Company shall have notified Chase
Co-Administrative Agent and such Issuing Lender prior to 12:00 Noon (New York
time) on the date of such drawing or request for payment that Company intends to
reimburse such Issuing Lender for the amount of such honored drawing or payment
with funds other than the proceeds of Revolving Loans, Company shall be deemed
to have given a timely Notice of Borrowing to Chase Co-Administrative Agent
requesting Lenders to make Revolving Loans which are Base Rate Loans, on the
applicable Reimbursement Date in an amount equal to the amount of such honored
drawing or payment and (ii) subject to satisfaction or waiver of the conditions
specified in subsection 4.4B, Lenders shall, on the applicable Reimbursement
Date, make Revolving Loans and in the amount of such honored drawing or payment,
the proceeds of which shall be applied directly by Chase Co-Administrative Agent
to reimburse such Issuing Lender for the amount of such honored drawing or
payment; provided further that if for any reason proceeds of Revolving Loans are
not received by such Issuing Lender on the applicable Reimbursement Date in an
amount equal to the amount of such honored drawing or payment, Company shall
reimburse such Issuing Lender, on demand, in an amount in Dollars and in same
day funds equal to the excess of the amount of such honored drawing or payment
over the aggregate amount of such Revolving Loans, if any, which are so
received. Nothing in this subsection 3.3B shall be deemed to relieve any Lender
from its obligation to make Revolving Loans on the terms and conditions set
forth in this Agreement, and Company shall retain any and all rights it may have
against any Lender resulting from the failure of such Lender to make such
Revolving Loans under this subsection 3.3B.
C. PAYMENT BY LENDERS OF UNREIMBURSED PAYMENTS UNDER LETTERS OF CREDIT.
(i) Payment by Lenders. In the event that Company shall fail for any
reason to reimburse any Issuing Lender as provided in subsection 3.3B in an
amount equal to the amount of any honored drawing or payment made by such
Issuing Lender under a Letter of Credit issued by it, such Issuing Lender
shall promptly notify each other Lender of the unreimbursed amount of such
honored drawing or payment and of such other Lender's respective
participation therein based on such Lender's Pro Rata Share of the
Revolving Loan Commitments. Each Lender shall make available to such
Issuing Lender an amount equal to its respective participation, in same day
funds, at the office of such Issuing Lender specified in such notice, not
later than 12:00 Noon (New York time) on the first business day (under the
laws of the jurisdiction in which such office of such Issuing Lender is
located) after the date notified by such Issuing Lender. In the event that
any Lender fails to make available to such Issuing Lender on such business
day the amount of such Lender's participation in such Letter of Credit as
provided in this subsection 3.3C, such Issuing Lender shall be entitled to
recover such amount on demand from such Lender together with interest
thereon at the rate customarily used by such Issuing Lender for the
correction of errors among banks for three Business Days and thereafter at
the Base Rate. Nothing in this subsection 3.3C shall be deemed to prejudice
the right of any Lender to recover from any Issuing Lender any amounts made
available by such Lender to such Issuing Lender pursuant to this subsection
3.3C in the event that it is determined by the final judgment of a court of
competent jurisdiction that the payment with respect to a Letter of Credit
by such Issuing Lender in respect of which payment was made by such Lender
constituted gross negligence or willful misconduct on the part of such
Issuing Lender.
(ii) Distribution to Lenders of Reimbursements Received From Company.
In the event any Issuing Lender shall have been reimbursed by other Lenders
pursuant to subsection 3.3C(i) for all or any portion of any honored
drawing or payment made by such Issuing Lender under a Letter of Credit
issued by it, such Issuing Lender shall distribute to each other Lender
which has paid all amounts payable by it under subsection 3.3C(i) with
respect to such honored drawing or payment such other Lender's Pro Rata
Share of all payments subsequently received by such Issuing Lender from
Company in reimbursement of such honored drawing or payment when such
payments are received. Any such distribution shall be made to a Lender at
its primary address set forth below its name on the appropriate signature
page hereof or at such other address as such Lender may request.
D. INTEREST ON AMOUNTS PAID UNDER LETTERS OF CREDIT.
(i) Payment of Interest by Company. Company agrees to pay to each
Issuing Lender, with respect to drawings honored or payments made under any
Letters of Credit issued by it, interest on the amount paid by such Issuing
Lender in respect of each such drawing or payment from the date such
drawing is honored or payment is made to but excluding the date such amount
is reimbursed by Company (including any such reimbursement out of the
proceeds of Revolving Loans pursuant to subsection 3.3B) at a rate equal to
(a) for the period from the date such drawing is honored or payment is made
to but excluding the applicable Reimbursement Date, the Base Rate plus the
Applicable Base Rate Margin with respect to Revolving Loans, and (b)
thereafter, a rate which is 2% per annum in excess of the rate of interest
described in the foregoing clause (a). Interest payable pursuant to this
subsection 3.3D(i) shall be computed on the basis of a 360-day year for the
actual number of days elapsed in the period during which it accrues and
shall be payable on demand or, if no demand is made, on the date on which
the related drawing or payment under a Letter of Credit is reimbursed in
full.
(ii) Distribution of Interest Payments by Issuing Lender. Promptly
upon receipt by any Issuing Lender of any payment of interest pursuant to
subsection 3.3D(i), (a) such Issuing Lender shall distribute to each other
Lender, out of the interest received by such Issuing Lender in respect of
the period from the date of the applicable honored drawing or payment under
a Letter of Credit issued by such Issuing Lender to but excluding the date
on which such Issuing Lender is reimbursed for the amount of such drawing
or payment (including any such reimbursement out of the proceeds of
Revolving Loans pursuant to subsection 3.3B), the amount that such other
Lender would have been entitled to receive in respect of the Letter of
Credit fee that would have been payable in respect of such Letter of Credit
for such period pursuant to subsection 3.2 if no drawing had been honored
or payment had been made under such Letter of Credit, and (b) in the event
such Issuing Lender shall have been reimbursed by other Lenders pursuant to
subsection 3.3C(i) for all or any portion of such drawing or payment, such
Issuing Lender shall distribute to each other Lender which has paid all
amounts payable by it under subsection 3.3C(i) with respect to such drawing
or payment such other Lender's Pro Rata Share of any interest received by
such Issuing Lender in respect of that portion of such drawing or payment
so reimbursed by other Lenders for the period from the date on which such
Issuing Lender was so reimbursed by other Lenders to and including the date
on which such portion of such drawing or payment is reimbursed by Company.
Any such distribution shall be made to a Lender at its Lending Office set
forth on Schedule 2.1 or at such other address as such Lender may request.
3.4 OBLIGATIONS ABSOLUTE.
The obligation of Company to reimburse each Issuing Lender for drawings
honored or payments made under the Letters of Credit issued by it and to repay
any Revolving Loans made by Lenders pursuant to subsection 3.3B and the
obligations of Lenders under subsection 3.3C(i) shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right which
Company or any Lender may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), any Issuing Lender or other Lender or any other
Person or, in the case of a Lender, against Company whether in connection
with this Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between Company or one of
its Subsidiaries and the beneficiary for which any Letter of Credit was
procured);
(iii) any draft, demand, certificate or other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) payment by the applicable Issuing Lender under any Letter of
Credit against presentation of a demand, draft or certificate or other
document which does not substantially comply with the terms of such Letter
of Credit;
(v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any
of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by any
party thereto;
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing;
provided, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question
(as determined by a final judgment of a court of competent jurisdiction).
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDER'S DUTIES.
A. INDEMNIFICATION. In addition to amounts payable as provided in
subsection 3.6, Company hereby agrees to protect, indemnify, pay and save
harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which such Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit by such Issuing
Lender, other than as a result of (a) the gross negligence or willful misconduct
of such Issuing Lender as determined by a final judgment of a court of competent
jurisdiction or (b) subject to the following clause (ii), the wrongful dishonor
by such Issuing Lender of a proper demand for payment made under any Letter of
Credit issued by it or (ii) the failure of such Issuing Lender to honor a
drawing or other request for payment under any such Letter of Credit as a result
of any act or omission, whether rightful or wrongful, of any present or future
de jure or de facto government or governmental authority (all such acts or
omissions herein called "GOVERNMENTAL ACTS").
B. NATURE OF ISSUING LENDERS' DUTIES. As between Company and any Issuing
Lender, Company assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by such Issuing Lender by, the respective beneficiaries
of such Letters of Credit. In furtherance and not in limitation of the
foregoing, such Issuing Lender shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing or
payment under such Letter of Credit; or (viii) any consequences arising from
causes beyond the control of such Issuing Lender, including, without limitation,
any Governmental Acts, and none of the above shall affect or impair, or prevent
the vesting of, any of such Issuing Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by any Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to Company.
Notwithstanding anything to the contrary contained in this subsection 3.5,
Company shall retain any and all rights it may have against any Issuing Lender
for any liability arising solely out of the gross negligence or willful
misconduct of such Issuing Lender, as determined by a final judgment of a court
of competent jurisdiction.
3.6 INCREASED COSTS AND TAXES RELATING TO LETTERS OF CREDIT.
In the event that any law, treaty or governmental rule, regulation or
order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or
governmental authority, in each case that becomes effective after the Closing
Date, or compliance by any Issuing Lender or Lender with any guideline, request
or directive issued or made after the Closing Date by any central bank or other
governmental or quasi-governmental authority (whether or not having the force of
law):
(i) results in any change in the basis of taxation of such Issuing
Lender or Lender (or its applicable lending or letter of credit office)
(other than a change with respect to any Tax on the overall net income of
such Issuing Lender or Lender) with respect to the issuing or maintaining
of any Letters of Credit or the purchasing or maintaining of any
participations therein or any other obligations under this Section 3,
whether directly or by such being imposed on or suffered by any particular
Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve (including,
without limitation, any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement in respect of any Letters of Credit issued by any Issuing
Lender or participations therein purchased by any Lender; or
(iii) imposes any other condition on or affecting such Issuing Lender
or Lender (or its applicable lending or letter of credit office) regarding
this Section 3 or any Letter of Credit or any participation therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Lender or Lender of agreeing to issue, issuing or maintaining any Letter of
Credit or agreeing to purchase, purchasing or maintaining any participation
therein or to reduce any amount received or receivable by such Issuing Lender or
Lender (or its applicable lending or letter of credit office) with respect
thereto; then, in any case, Company shall promptly pay to such Issuing Lender or
Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or amounts (reasonably determined by such Issuing Lender or
Lender) as may be necessary to compensate such Issuing Lender or Lender for any
such increased cost or reduction in amounts received or receivable hereunder.
Such Issuing Lender or Lender shall deliver to Company a written statement,
setting forth in reasonable detail the basis for calculating the additional
amounts owed to such Issuing Lender or Lender under this subsection 3.6, which
statement shall be prima facie evidence of such additional amounts.
SECTION 4.
CONDITIONS TO LOANS AND LETTERS OF CREDIT
4.1 CONDITIONS TO EXISTING LOANS AND LETTERS OF CREDIT.
The conditions to the making of the Existing Loans and the issuance of the
Existing Letters of Credit have been satisfied.
4.2 CONDITIONS TO TRANCHE C TERM LOANS.
The obligations of Lenders to make the initial Tranche C Term Loans are, in
addition to the conditions precedent specified in subsection 4.4, subject to
prior or concurrent satisfaction of the following conditions:
A. COMPANY DOCUMENTS. On or before the Effective Date, Company shall
deliver or cause to be delivered to Lenders (or to Chase Co-Administrative Agent
for Lenders with sufficient originally executed copies, where appropriate, for
each Lender and its counsel) the following, each, unless otherwise noted, dated
the Effective Date:
(i) Certified copies of its Certificate of Incorporation, together
with a good standing certificate from the Secretary of State of the State
of Delaware and each other state in which it is qualified as a foreign
corporation to do business, each dated a recent date prior to the Effective
Date;
(ii) Copies of its Bylaws, certified as of the Effective Date by its
corporate secretary or an assistant secretary;
(iii) Resolutions of its Board of Directors approving and authorizing
the execution, delivery and performance of this Agreement, other Loan
Documents and the Union Acquisition Documents to which it is a party and
approving and authorizing the consummation of the Tender Offer and the
Union Merger in the manner contemplated by the Union Acquisition Documents,
certified as of the Effective Date by its corporate secretary or an
assistant secretary as being in full force and effect without modification
or amendment;
(iv) Signature and incumbency certificates of its officers executing
this Agreement and the other Loan Documents;
(v) Executed originals of this Agreement and (to the extent not
previously executed and delivered to Lenders) the other Loan Documents to
which it is a party; and
(vi) Such other documents as Agents may reasonably request.
B. SUBSIDIARY DOCUMENTS. On or before the Effective Date, Company shall
deliver or cause to be delivered to Lenders (or to Chase Co-Administrative Agent
for Lenders with sufficient originally executed copies, where appropriate, for
each Lender and its counsel) the following for such Subsidiary (other than Union
and its Subsidiaries) as specified, each, unless otherwise noted, dated the
Effective Date:
(i) Certified copies of the Certificate of Incorporation (or
equivalent organizational document) of each domestic corporate Wholly Owned
Subsidiary of Company (or, in lieu thereof, a certificate of the corporate
secretary of such Subsidiary certifying as of the Effective Date that its
Certificate of Incorporation previously delivered to Existing Lenders is in
full force and effect without modification or amendment), together with a
good standing certificate from the secretary of state of its jurisdiction
of incorporation and each other state in which it is qualified as a foreign
corporation to do business (except any such other state or states in which
failure to be so qualified could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect) (or, in lieu
thereof, a certificate of the secretary of such Subsidiary certifying as of
the Effective Date that such Subsidiary is in good standing in all such
jurisdictions), each dated a recent date prior to the Effective Date;
(ii) Copies of the Bylaws of each such domestic corporate Wholly Owned
Subsidiary of Company, certified as of the Effective Date by its corporate
secretary, or an assistant secretary (or, in lieu thereof, a certificate of
such secretary certifying as of the Effective Date that the Bylaws of such
Subsidiary previously delivered to Existing Lenders are in full force and
effect without modification or amendment);
(iii) Resolutions of the Board of Directors of each such domestic
corporate Wholly Owned Subsidiary of Company approving and authorizing the
execution, delivery and performance of the Subsidiary Guaranty, the
Security Agreement, the Pledge Agreement, the Trademark Security Agreement,
the Limited Partnership Security Agreement (as applicable) and the other
Loan Documents to which such Subsidiary is party and, in the case of Merger
Sub, approving and authorizing the consummation of the Tender Offer and the
Union Merger in the manner contemplated by the Union Acquisition Documents,
certified as of the Effective Date by its corporate secretary or an
assistant secretary as being in full force and effect without modification
or amendment;
(iv) Conformed copies of the partnership agreement of each domestic
Subsidiary of Company that is a partnership, certified by each general
partner of such partnership Subsidiary as of the Effective Date as being in
full force and effect without modification or amendment (or, in lieu
thereof, a certificate of such general partner certifying as of the
Effective Date that the partnership agreement of such partnership
Subsidiary delivered on the Closing Date pursuant to subsection 4.2 of the
Existing Credit Agreement is in full force and effect without modification
or amendment);
(v) Certificates of limited partnership or statements of partnership,
as applicable, of each such Subsidiary of Company that is a partnership,
certified by the Secretary of State (or similar official) of its
jurisdiction of formation (or, in lieu thereof, a certificate of the
general partner of such partnership Subsidiary certifying as of the
Effective Date that the certificate of limited partnership or statement of
partnership of such Subsidiary delivered on the Closing Date pursuant to
subsection 4.2 of the Existing Credit Agreement is in full force and effect
without modification or amendment), and a certificate of existence or good
standing, as the case may be, from the Secretary of State (or similar
official) of such jurisdiction, together with a certificate or other
evidence of good standing from the secretary of state of each other state
in which it is authorized as a foreign limited partnership to do business
(except any such other state or states in which failure to be so qualified
could not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect), each dated as of a recent date prior to the
Effective Date;
(vi) All documents executed by the appropriate partners of each
Subsidiary of Company that is a partnership approving or authorizing the
execution, delivery and performance of the Subsidiary Guaranty, the
Security Agreement, the Pledge Agreement, the Trademark Security Agreement,
the Limited Partnership Security Agreement (as applicable) and the other
Loan Documents to which such Subsidiary is a party, each certified as of
the Effective Date by the general partner of such partnership Subsidiary or
other Loan Party;
(vii) Signature and incumbency certificates of its officers, partners
or other Persons executing the Subsidiary Guaranty, the Security Agreement,
the Pledge Agreement, the Trademark Security Agreement, the Limited
Partnership Security Agreement (as applicable) and the other Loan Documents
to which such Subsidiary is party;
(viii) Executed originals (to the extent not previously executed and
delivered to Lenders) of the Subsidiary Guaranty, the Security Agreement,
the Pledge Agreement and the other Loan Documents to which any corporate or
partnership Subsidiary of Company is a party; and
(ix) Such other documents as Agents may reasonably request.
C. UNION DOCUMENTS. On or before the Effective Date, Company shall, or
shall cause Union to, deliver to Lenders (or to Chase Co-Administrative Agent
for Lenders with sufficient originally executed copies, where appropriate, for
each Lender and its counsel) the following with respect to Union, each dated the
Effective Date:
(i) Certified copies of the Certificate of Incorporation of Union,
together with a good standing certificate from the Secretary of State of
Delaware and each other state in which Union is qualified as a foreign
corporation to do business and, to the extent generally available, a
certificate or other evidence of good standing as to payment of any
applicable franchise or similar taxes from the appropriate taxing authority
of each of such jurisdictions, each dated a recent date prior to the
Effective Date;
(ii) Copies of the Bylaws of Union, certified as of the Effective Date
by its corporate secretary or an assistant secretary;
(iii) Resolutions of the Board of Directors of Union approving and
authorizing the execution, delivery and performance of the Union
Acquisition Agreement, and approving and authorizing the consummation of
the Union Merger in the manner contemplated by the Union Acquisition
Documents, certified as of the Effective Date by the secretary or an
assistant secretary of Union as being in full force and effect without
modification or amendment; and
(iv) Signature and incumbency certificates of the officers of Union
executing the Union Acquisition Agreement.
D. TENDERED UNION SHARES. There shall have been validly tendered to Merger
Sub pursuant to the Tender Offer and not withdrawn shares of Union Common Stock
which constitute the Minimum Union Shares at the price per share specified to be
paid pursuant to the Tender Offer Materials; the shares of Union Common Stock to
be purchased shall be free and clear of all Liens and restrictions to purchase
imposed by applicable law or otherwise and such shares of Union Common Stock
shall be available for purchase in accordance with the terms and conditions set
forth in the Tender Offer Materials. Company shall have delivered to
Co-Administrative Agents (a) a certificate of Custodian certifying as to the
number of tendered shares of Union Common Stock, and (b) an Officers'
Certificate of Company certifying that the tendered shares of Union Common Stock
to be purchased with the proceeds of the initial Tranche C Term Loans represent,
in the aggregate, not less than the Minimum Union Shares.
E. UNION ACQUISITION DOCUMENTS.
(i) Union Acquisition Documents. Agents shall have received a fully
executed or conformed copy of each Union Acquisition Document (other than
the Union Certificate of Merger) and any other documents executed in
connection therewith, and the Union Acquisition Agreement and the other
Union Acquisition Documents shall be reasonably satisfactory in form and
substance to Arranging Agents and Requisite Lenders. The Union Acquisition
Documents (other than the Union Certificate of Merger) shall each be in
full force and effect and no provision thereof shall have been modified or
waived in any respect determined by Arranging Agents to be material, in
each case without the consent of Arranging Agents and Requisite Lenders,
such consent not to be unreasonably withheld.
(ii) No Material Litigation. There shall be no material litigation
pending which challenges the Tender Offer or the Union Merger in any
respect which is, in the reasonable judgment of Arranging Agents or
Co-Administrative Agents, material.
F. NO MATERIAL ADVERSE EFFECT. Since December 31, 1996, there shall not
have been an adverse change, or any development involving a prospective adverse
change, in or affecting the general affairs, management, financial position,
shareholders' equity or results of operation of Company and its Subsidiaries
which is, in the reasonable judgment of Arranging Agents, Co-Administrative
Agents or Requisite Lenders, material. Since June 30, 1997, there shall not have
been an adverse change, or any development involving a prospective adverse
change, in or affecting the general affairs, management, financial position,
shareholders' equity or results of operation of Union and its Subsidiaries which
is, in the reasonable judgment of Arranging Agents, Co-Administrative Agents or
Requisite Lenders, material.
G. NECESSARY GOVERNMENTAL AUTHORIZATIONS AND CONSENTS; EXPIRATION OF
WAITING PERIODS, ETC. Company shall have obtained all Governmental
Authorizations and all consents of other Persons, in each case that are
necessary or advisable in connection with the Tender Offer and the Union Merger,
the other transactions contemplated by the Loan Documents and the Related
Agreements, and the continued operation of the business conducted by Union and
its Subsidiaries in substantially the same manner as conducted prior to the
consummation of the Tender Offer, and each of the foregoing shall be in full
force and effect and in form and substance satisfactory to Arranging Agents
(except as disclosed to and approved by Arranging Agents). All applicable
waiting periods shall have expired without any action being taken or threatened
by any competent authority which would restrain, prevent or otherwise impose
adverse conditions on the Tender Offer or the Union Merger or the financing
thereof. No action, request for stay, petition for review or rehearing,
reconsideration, or appeal with respect to any of the foregoing shall be
pending, and the time for any applicable agency to take action to set aside its
consent on its own motion shall have expired.
H. OPINIONS OF LOAN PARTIES' COUNSEL. Lenders and their respective counsel
shall have received originally executed copies of one or more favorable written
opinions of White & Case, counsel for the Loan Parties, in form and substance
reasonably satisfactory to Arranging Agents and their counsel, dated as of the
Effective Date and setting forth substantially the matters in the opinions
designated in Exhibit XI annexed hereto and as to such other matters as
Arranging Agents acting on behalf of Lenders may reasonably request. Company
hereby requests that such counsel deliver such opinions on the Effective Date to
Agents and Lenders.
I. FEES. Company shall have paid to Agents, for distribution (as
appropriate hereunder or under the terms of the Existing Credit Agreement, as
the case may be) to Agents and Lenders, the fees payable on the Effective Date
referred to in subsection 2.3C.
J. ENVIRONMENTAL REPORTS. Lenders shall have received reports and/or other
information reasonably satisfactory to Arranging Agents regarding environmental
matters with respect to Union and its Subsidiaries.
K. CORPORATE STRUCTURE; MANAGEMENT.
(i) Corporate Structure. The corporate organizational structure,
capital structure and ownership of Company and its Subsidiaries, after
giving effect to the Tender Offer and the Union Merger, shall be as set
forth on Schedule 4.2J annexed hereto.
(ii) Management. The management structure of Company, after giving
effect to the Tender Offer and the Union Merger, shall be as set forth on
Schedule 4.2J annexed hereto.
L. BUSINESS PLAN. Arranging Agents shall have received a business plan in
form, scope and substance reasonably satisfactory to Arranging Agents submitted
by management of Company and its Subsidiaries with respect to the incorporation
of Union and its Subsidiaries into Company's existing business.
M. REPAYMENT OF SWING LINE LOANS. On the Effective Date, immediately before
and after giving effect to any borrowings hereunder on such date, no Swing Line
Loans shall be outstanding. N. No Event of Default. Company shall have delivered
to Chase Co-Administrative Agent an Officer's Certificate, in form and substance
satisfactory to Chase Co-Administrative Agent, to the effect that immediately
prior to the Effective Date, no event has occurred and is continuing that would
constitute an Event of Default or Potential Event of Default under the Existing
Credit Agreement.
O. COMPLETION OF PROCEEDINGS. All corporate and other proceedings taken or
to be taken in connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by Arranging
Agents, acting on behalf of Requisite Lenders, and their counsel shall be
satisfactory in form and substance to Arranging Agents and such counsel, and
Arranging Agents and such counsel shall have received all such counterpart
originals or certified copies of such documents as Arranging Agents may
reasonably request.
P. FINANCIAL STATEMENTS; PRO FORMA BALANCE SHEET. On or before the
Effective Date, Lenders shall have received from Company and be satisfied with
(i) audited financial statements of Union and its Subsidiaries for the period
ending June 30, 1997, consisting of consolidated and consolidating balance
sheets and the related consolidated and consolidating statements of income,
stockholders' equity and cash flows for such period, (ii) unaudited financial
statements of Union and its Subsidiaries for the period from June 30, 1997
through November 30, 1997, consisting of a consolidated balance sheet (prepared
on a divisional basis) and the related consolidated statements of income,
stockholders' equity and cash flows for the period ending on each such date, all
in reasonable detail and certified by the chief financial officer of Union that
they fairly present, in all material respects, the financial condition of Union
and its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, subject to changes
resulting from audit and normal year-end adjustments, (iii) audited financial
statements of the Company and its Subsidiaries for the period ending December
31, 1996, consisting of consolidated and consolidating balance sheets and the
related consolidated and consolidating statements of income, stockholders'
equity and cash flows for such period, (iv) unaudited financial statements of
Company and its Subsidiaries for the period from January 1, 1997 through
December 31, 1997, consisting of a consolidated balance sheet and the related
consolidated statements of income, stockholders' equity and cash flows for the
period ending on each such date, all in reasonable detail and certified by the
chief financial officer of the Company that they fairly present, in all material
respects, the financial condition of the Company and its Subsidiaries as at the
dates indicated and the results of their operations and their cash flows for the
periods indicated, subject to changes resulting from audit and normal year-end
adjustments, (v) pro forma combined balance sheets of Company and its
Subsidiaries as at November 30, 1997, prepared in accordance with GAAP and
reflecting the consummation of the Merger, the related financings and the other
transactions contemplated by the Loan Documents and the Related Agreements,
which pro forma financial statements shall be in form and substance satisfactory
to Lenders, and (vi) the Projections.
Q. SOLVENCY ASSURANCES. On the Effective Date, Arranging Agents,
Co-Administrative Agents and Lenders shall have received (i) a letter from
Murray Devine & Co. dated the Effective Date and addressed to Arranging Agents,
Co-Administrative Agents and Lenders, in form and substance satisfactory to
Arranging Agents and Lenders and with appropriate attachments and (ii) a
certificate from the chief financial officer of Company, in form, scope and
substance satisfactory to Arranging Agents, with appropriate attachments, in
each case demonstrating that, after giving effect to the consummation of the
Union Acquisition and the making of the Tranche C Term Loans and the
Delayed-Draw Term Loans, Company and its Subsidiaries will be Solvent.
R. REPAYMENT OF REVOLVING LOANS. On the Effective Date, Arranging Agents
shall have received evidence reasonably satisfactory to them that after giving
effect to the payment of consideration for the Tendered Union Shares, and the
payment of Transaction Costs, the remaining proceeds of the Tranche C Term Loans
(other than the amount of the Delayed-Draw Term Loans) shall be applied on the
Effective Date to repay Revolving Loans.
S. PERFECTION OF SECURITY INTERESTS IN PERSONAL PROPERTY AND MIXED
COLLATERAL. Company shall have taken or caused to be taken such actions in such
a manner so that Collateral Agent has, for the benefit of Agents and Lenders, a
valid and perfected first priority security interest in the entire personal
property and mixed Collateral (subject to Liens permitted by this Agreement);
provided, however, that prior to the Union Merger, (i) Merger Sub shall only be
required to provide a first priority security interest in any Union Common Stock
acquired through the Tender Offer to the extent requested by Co-Administrative
Agents and to the extent such Union Common Stock can be pledged in compliance
with applicable law and (ii) Company shall not be required to provide a first
priority security interest in the assets of Union or any of its Subsidiaries.
Such actions shall include, without limitation: (i) the delivery pursuant to the
applicable Collateral Documents of (a) certificates (which certificates shall be
properly endorsed in blank for transfer or accompanied by irrevocable undated
stock powers duly endorsed in blank, all in form and substance satisfactory to
Chase Co-Administrative Agent) representing all of the shares of capital stock
required to be pledged pursuant to the Collateral Documents, and (b) all
promissory notes or other instruments (duly endorsed, where appropriate, in a
manner reasonably satisfactory to Chase Co-Administrative Agent) evidencing any
Collateral; (ii) delivery to Agents of (a) the results of a recent search, by a
Person satisfactory to Agents, of all effective UCC financing statements and
fixture filings and all judgment and tax lien filings which may have been made
with respect to any personal or mixed property of Union and its Subsidiaries,
together with copies of all such filings disclosed by such search; (iii) the
delivery to Chase Co-Administrative Agent of UCC financing statements executed
by the applicable Loan Parties as to all such Collateral granted by such Loan
Parties for all jurisdictions as may be necessary or desirable to perfect
Collateral Agent's security interest in such Collateral; and (iv) the delivery
to Chase Co-Administrative Agent of evidence reasonably satisfactory to Chase
Co-Administrative Agent that all other filings (including, without limitation,
UCC termination statements and filings with the United States Patent and
Trademark Office of trademark assignments for all trademarks used by Company and
its Subsidiaries registered in the United States), recordings and other actions
that either Chase Co-Administrative Agent or Collateral Agent deems necessary or
advisable to establish, preserve and perfect the first priority Liens (subject
to Liens consented to in writing by Co-Administrative Agents and Requisite
Lenders or permitted by subsection 7.2 with respect to such Collateral) granted
to Collateral Agent in personal and mixed property shall have been made.
T. TRANSACTION COSTS. Company shall have delivered to Co-Administrative
Agents a schedule, in a form satisfactory to Co-Administrative Agents, setting
forth Company's reasonable best estimate of the Transaction Costs (other than
amounts payable to Agents and Lenders) relating to the Union Acquisition.
U. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS. Company shall
have delivered to Chase Co-Administrative Agent an Officer's Certificate, in
form and substance satisfactory to Chase Co-Administrative Agent, to the effect
that the representations and warranties in Section 5 hereof are true and correct
in all material respects on and as of the Effective Date to the same extent as
though made on and as of such date and that Company shall have performed in all
material respects all agreements and satisfied all conditions which this
Agreement provides shall be performed or satisfied by them on or before such
date, except as otherwise disclosed to and agreed to in writing by Chase
Co-Administrative Agent.
Each Lender, by delivering its signature page to this Agreement and, in the
case of Lenders having Tranche C Term Loan Exposure, funding its initial Tranche
C Term Loans on the Effective Date, shall be deemed to have acknowledged receipt
of, and consented to and approved (as long as substantially in the form
delivered to Lenders including any changed pages thereto delivered to Lenders),
each Loan Document and each other document required to be approved by Requisite
Lenders or Lenders, as applicable.
4.3 CONDITIONS TO DELAYED-DRAW TERM LOANS.
The obligations of Lenders to make the Delayed-Draw Term Loans are, in
addition to the conditions precedent specified in subsection 4.4, subject to
satisfaction of the following conditions:
A. CONSUMMATION OF UNION MERGER.
(i) The Union Merger shall have been consummated pursuant to the Union
Acquisition Agreement and no provision of such thereof shall have been
amended, supplemented, waived or otherwise modified in any material respect
without the prior consent of the Agents.
(ii) All of the issued and outstanding Union Common Stock shall be
owned by the Company.
(iii) After giving effect to the consummation of the Union Merger and
the payment of any portion of the aggregate consideration for the Union
Common Stock (and any related transaction fees and expenses) that becomes
due and payable thereupon, the aggregate amount of the consideration paid
for the Union Common Stock (and all such transaction fees and expenses)
shall not exceed $207,500,000.
(iv) Concurrently with the consummation of the Union Merger, all
existing Indebtedness of Union and its Subsidiaries in respect of borrowed
money (other than obligations with respect to industrial development bonds)
shall be repaid in full, except for the Union Letters of Credit.
(v) The execution by Union and each of its Subsidiaries and the
delivery thereof to Chase Co-Administrative Agent and Collateral Agent of
counterparts to the Subsidiary Guaranty.
(vi) Arranging Agents shall have received an Officer's Certificate of
Company to the effect set forth in clauses (i)-(v) above.
B. PERFECTION OF SECURITY INTERESTS IN UNION PERSONAL PROPERTY AND MIXED
COLLATERAL. Company shall have taken or caused to be taken such actions in such
a manner so that Collateral Agent has, for the benefit of Agents and Lenders, a
valid and perfected first priority security interest in all of the outstanding
capital stock of Union and in the entire personal property and mixed Collateral
(subject to Liens permitted by this Agreement) of Union and its Subsidiaries.
Such actions shall include, without limitation: (i) the execution by Union and
each of its Subsidiaries and the delivery thereof to Chase Co-Administrative
Agent and Collateral Agent of counterparts to the Pledge Agreement, Security
Agreement, Limited Partnership Security Agreement and the Patent and Trademark
Security Agreement; (ii) the delivery pursuant to the applicable Collateral
Documents of (a) certificates (which certificates shall be properly endorsed in
blank for transfer or accompanied by irrevocable undated stock powers duly
endorsed in blank, all in form and substance satisfactory to Chase
Co-Administrative Agent) representing all of the shares of capital stock
required to be pledged pursuant to the Collateral Documents, and (b) all
promissory notes or other instruments (duly endorsed, where appropriate, in a
manner reasonably satisfactory to Chase Co-Administrative Agent) evidencing any
Collateral of Union and its Subsidiaries; (iii) delivery to Agents of (a) the
results of a recent search, by a Person satisfactory to Agents, of all effective
UCC financing statements and fixture filings and all judgment and tax lien
filings which may have been made with respect to any personal or mixed property
of any Loan Party, together with copies of all such filings disclosed by such
search; (iv) the delivery to Chase Co-Administrative Agent of UCC financing
statements executed by the applicable Loan Parties as to all such Collateral
granted by such Loan Parties for all jurisdictions as may be necessary or
desirable to perfect Collateral Agent's security interest in such Collateral;
and (v) the delivery to Chase Co-Administrative Agent of evidence reasonably
satisfactory to Chase Co-Administrative Agent that all other filings (including,
without limitation, UCC termination statements and filings with the United
States Patent and Trademark Office of trademark assignments for all trademarks
used by Company and its Subsidiaries registered in the United States),
recordings and other actions that either Chase Co-Administrative Agent or
Collateral Agent deems necessary or advisable to establish, preserve and perfect
the first priority Liens (subject to Liens consented to in writing by
Co-Administrative Agents and Requisite Lenders or permitted by subsection 7.2
with respect to such Collateral) granted to Collateral Agent in personal and
mixed property shall have been made.
4.4 CONDITIONS TO ALL LOANS.
The obligations of Lenders to make Loans on each Funding Date are subject
to the following further conditions precedent:
A. Chase Co-Administrative Agent shall have received on or before that
Funding Date, in accordance with the provisions of subsection 2.1B, an
originally executed Notice of Borrowing, signed by the chief executive officer,
the chief financial officer or the controller of Company or by any executive
officer of Company designated by any of the above-described officers on behalf
of Company in a writing delivered to Chase Co-Administrative Agent.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in the
other Loan Documents shall be true and correct in all material respects on
and as of that Funding Date to the same extent as though made on and as of
that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations
and warranties shall have been true and correct in all material respects on
and as of such earlier date;
(ii) No event shall have occurred and be continuing or would result
from the consummation of the borrowing contemplated by such Notice of
Borrowing that would constitute an Event of Default or a Potential Event of
Default;
(iii) Each Loan Party shall have performed in all material respects
all agreements and satisfied all conditions which this Agreement and the
other Loan Documents provide shall be performed or satisfied by it on or
before that Funding Date;
(iv) No order, judgment or decree of any court, arbitrator or
governmental authority shall purport to enjoin or restrain any Lender from
making the Loans to be made by it, on that Funding Date;
(v) The making of the Loans requested on such Funding Date shall not
violate any law including, without limitation, Regulation G, Regulation T,
Regulation U or Regulation X of the Board of Governors of the Federal
Reserve System; and
(vi) There shall not be pending or, to the knowledge of Company,
threatened, any action, suit, proceeding, governmental investigation or
arbitration against or affecting Company or any of its Subsidiaries or any
property of Company or any of its Subsidiaries that has not been disclosed
by Company in writing and that is required to be so disclosed pursuant to
subsection 5.6 or 6.1(x) prior to the making of the last preceding Loans
(or, in the case of the initial Tranche C Term Loans, prior to the
execution of this Agreement), and there shall have occurred no development
not so disclosed in any such action, suit, proceeding, governmental
investigation or arbitration so disclosed that, in either event, in the
opinion of Chase Co-Administrative Agent or of Requisite Lenders, would be
expected to have a Material Adverse Effect; and no injunction or other
restraining order shall have been issued and no hearing to cause an
injunction or other restraining order to be issued shall be pending or
noticed with respect to any action, suit or proceeding seeking to enjoin or
otherwise prevent the consummation of, or to recover any damages or obtain
relief as a result of, the transactions contemplated by this Agreement or
the making of Loans hereunder.
4.5 CONDITIONS TO LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder (whether or not the
applicable Issuing Lender is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:
A. On or before the date of issuance of the initial Letter of Credit
pursuant to this Agreement, the initial Loans shall have been made.
B. On or before the date of issuance of such Letter of Credit, Chase
Co-Administrative Agent shall have received, in accordance with the provisions
of subsection 3.1B(i), an originally executed Notice of Issuance of Letter of
Credit, signed by the chief executive officer, the chief financial officer or
the controller of Company or by any executive officer of Company designated by
any of the above-described officers on behalf of Company in a writing delivered
to Chase Co-Administrative Agent, together with all other information specified
in subsection 3.1B(i) and such other documents or information as the applicable
Issuing Lender may reasonably require in connection with the issuance of such
Letter of Credit.
C. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.4B shall be satisfied to the same extent as
if the issuance of such Letter of Credit were the making of a Loan and the date
of issuance of such Letter of Credit were a Funding Date.
SECTION 5.
REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make (or
maintain, as the case may be) the Loans, to induce Issuing Lender to issue (or
maintain, as the case may be) Letters of Credit and to induce other Lenders to
purchase participations therein, Company represents and warrants to each Lender,
on the date of this Agreement, on the Effective Date, on each Funding Date, and
on the date of issuance of each Letter of Credit, that the following statements
are true and correct:
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES.
A. ORGANIZATION AND POWERS. Each Corporate Loan Party is a corporation duly
organized, validly existing and in good standing under the laws of its state of
incorporation. Each Partnership Loan Party is a duly organized and validly
existing limited partnership under the laws of its jurisdiction of formation and
is in good standing in such jurisdiction. Each Loan Party has all requisite
corporate or partnership (as applicable) power and authority to own and operate
its properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into the Loan Documents and to carry out the transactions
contemplated thereby. Company has all requisite corporate power and authority to
issue and pay the Notes.
B. QUALIFICATION AND GOOD STANDING. Each Corporate Loan Party is qualified
to do business and in good standing, and each Partnership Loan Party is
authorized as a foreign limited partnership to do business, in every
jurisdiction where its assets are located and wherever necessary to carry out
its business and operations, except in jurisdictions where the failure to be so
qualified, authorized or in good standing has not had and will not have a
Material Adverse Effect.
C. CONDUCT OF BUSINESS. Company and its Subsidiaries are engaged only in
the businesses permitted to be engaged in pursuant to subsection 7.11.
D. COMPANY AND SUBSIDIARIES. All of the Subsidiaries of Company as of the
Effective Date after giving effect to the Union Acquisition are identified in
Schedule 5.1 annexed hereto. The capital stock of each of the domestic
Subsidiaries of Company identified in Schedule 5.1 annexed hereto which are
corporations is duly authorized, validly issued, fully paid and nonassessable
and, other than the capital stock of Union prior to the Merger, none of such
capital stock constitutes Margin Stock. The limited and general partnership
interests of each of the subsidiaries of Company identified in Schedule 5.1
annexed hereto which are limited partnerships are duly and validly issued.
Company and each of the domestic Subsidiaries of Company identified in Schedule
5.1 annexed hereto are duly organized, validly existing and in good standing
under the laws of their respective jurisdictions of incorporation or formation
set forth therein, have full corporate or partnership (as applicable) power and
authority to own their assets and properties and to operate their business as
presently owned and conducted and as proposed to be conducted, and are qualified
to do business and in good standing in every jurisdiction where their assets are
located and wherever necessary to carry out their business and operations, in
each case except where failure to be so qualified or in good standing or a lack
of such corporate power and authority has not had and will not have a Material
Adverse Effect. Schedule 5.1 annexed hereto correctly sets forth the ownership
interest of Company in each of its Subsidiaries identified therein.
5.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and performance of
the Loan Documents and the Related Agreements and the issuance, delivery and
payment of the Notes have been duly authorized by all necessary corporate and/or
partnership (as applicable) action on the part of each of the Loan Parties
thereto.
B. NO CONFLICT. After giving effect to the consummation of the transactions
contemplated hereby to occur on the Effective Date, the execution, delivery and
performance by each of the Loan Parties of the Loan Document and the Related
Agreements to which they are parties, the issuance, delivery and payment of the
Notes and the consummation of the transactions contemplated by the Loan
Documents do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to Company or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws (or other
analogous organizational document) of Company or any of its Subsidiaries or any
order, judgment or decree of any court or other agency of government binding on
Company or any of its Subsidiaries, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Company or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of Company or any of its Subsidiaries (other than any Liens created under
any of the Loan Documents in favor of Chase Co-Administrative Agent on behalf of
Lenders), or (iv) require any approval of stockholders or partners or any
approval or consent of any Person under any Contractual Obligation of Company or
any of its Subsidiaries, except for such approvals or consents which will be
obtained on or before the Effective Date.
C. GOVERNMENTAL CONSENTS. The execution, delivery and performance by the
Loan Parties of the Loan Documents and Related Agreements to which they are
party, the issuance, delivery and payment of the Notes and the consummation of
the transactions contemplated by the Loan Documents do not and will not require
any registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body except for such registrations, consents, approvals, notices or other
actions which will be made, obtained or taken on or before the Effective Date.
D. BINDING OBLIGATION. Each of the Loan Documents and the Related
Agreements has been duly executed and delivered by each of the Loan Parties
party thereto and is the legally valid and binding obligation of each such Loan
Party, enforceable against such Loan Party in accordance with its respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability.
E. VALID ISSUANCE OF SUBORDINATED NOTES. The Subordinated Notes are the
legally valid and binding obligations of Company, enforceable against Company in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability. The subordination provisions of the Subordinated Notes will be
enforceable against the holders thereof and the Loans and all other monetary
Obligations hereunder are and will be within the definition of "Senior Debt"
included in such provisions. The Subordinated Notes, when issued and sold, will
either (a) have been registered or qualified under applicable federal and state
securities laws or (b) be exempt therefrom.
5.3 FINANCIAL CONDITION; PROJECTIONS.
A. FINANCIAL STATEMENTS. Company has heretofore delivered to Lenders, at
Lenders' request, the following financial statements and information: (i) the
audited consolidated balance sheets of Company and its Subsidiaries (or, with
respect to years prior to 1995, Account Portfolios, L.P. (as predecessor of
Company) and its Subsidiaries) as at December 31 of 1994, 1995 and 1996, and the
related audited consolidated statements of operations, stockholders' equity and
cash flows of Company and its Subsidiaries for the periods then ended, together
with the report on such consolidated financial statements of Deloitte & Touche
LLP setting forth in each case in comparative form the corresponding figures for
the previous Fiscal Year (other than the Fiscal Year ending December 31, 1992),
(ii) the unaudited consolidated balance sheet of Company and its Subsidiaries as
at September 30, 1997 and the related unaudited consolidated statements of
income, stockholders' equity and cash flows of Company and its Subsidiaries for
the nine months then ended, together with the corresponding figures for the
corresponding periods of the previous Fiscal Year, (iii) the audited
consolidated balance sheet of Payco and its subsidiaries as at December 31 of
1993, 1994 and 1995, and the audited consolidated statement of operations,
stockholders' equity, and cash flows of Payco and its Subsidiaries for the
fiscal year then ended, together with the report on such consolidated financial
statements of Arthur Andersen & Co. setting forth in comparative form the
corresponding figures for the previous fiscal year (other than the fiscal year
ending December 31, 1992), (iv) the unaudited consolidated balance sheet of
Payco and its Subsidiaries as at June 30, 1996 and the related unaudited
consolidated statements of operations, stockholders' equity and cash flows of
Payco and its Subsidiaries for the six months then ended, together with the
corresponding figures for the corresponding period of the previous fiscal year
(other than the fiscal year ending December 31, 1992), (v) the consolidated
balance sheet of Accelerated and its Subsidiaries as at July 31, 1997 and the
related consolidated statements of income, stockholders' equity and cash flows
of Accelerated and its Subsidiaries for the seven months then ended, together
with the corresponding figures for the corresponding period ending on July 31 of
the previous year, (vi) the audited consolidated balance sheet of NSA and its
Subsidiaries as at December 31, 1996, and the related audited consolidated
statements of income, stockholders' equity and cash flows of NSA and its
Subsidiaries for the period then ended, together with the report on such
consolidated financial statements of Weisberg, Polansky, Kulberg, Einhorn &
Mole, LLP setting forth in comparative form the corresponding figures for the
previous fiscal year of NSA, (vii) the consolidated balance sheet of NSA and its
Subsidiaries as at December 31, 1995, and the related audited consolidated
statements of income, stockholders' equity and cash flows of NSA and its
Subsidiaries for the fiscal year of NSA then ended, (viii) the consolidated
balance sheet of NSA and its Subsidiaries as at July 31, 1997 and the related
consolidated statements of income, stockholders' equity and cash flows of NSA
and its Subsidiaries for the seven months then ended, together with the
corresponding figures for the corresponding period of the previous fiscal year,
and (ix) the financial statements required to be delivered pursuant to
subsection 4.2P. All such statements were prepared in conformity with GAAP and
fairly present, in all material respects, the financial position (on a
consolidated basis) of the entities described in such financial statements as at
the respective dates thereof and the results of operations and cash flows (on a
consolidated basis) of the entities described therein for each of the periods
then ended, subject, in the case of any such unaudited financial statements, to
changes resulting from audit and normal year-end adjustments and the absence of
footnote disclosure required in accordance with GAAP. Neither Company, Payco,
Accelerated nor NSA has (and did not immediately following the funding of the
initial Loans under the Existing Credit Agreement, have), and Union does not
(and will not immediately following the funding of the Tranche C Term Loans)
have, any Contingent Obligation, contingent liability or liability for taxes,
long-term lease or unusual forward or long-term commitment that is not reflected
in the most recent financial statements delivered pursuant to subsection 6.1 of
the Existing Credit Agreement, or subsection 4.2P(ii) of this Agreement in the
case of Union, the notes thereto and which in any such case is material in
relation to the business, operations, properties, assets, condition (financial
or otherwise) or prospects of Company and its Subsidiaries taken as a whole.
Notwithstanding the foregoing, Company shall not be deemed to make any
representation hereunder with respect to the financial statements described in
clause (ix) of this subsection prior to consummation of the Union Acquisition.
B. PROJECTIONS. On and as of the Effective Date, the financial projections
of Company and its Subsidiaries for the period from December 31, 1996 through
December 31, 2004 (giving effect to the Union Acquisition) previously delivered
to Lenders (the "PROJECTIONS") are based on good faith estimates and assumptions
made by the management of Company, it being recognized, however, that
projections as to future events are not to be viewed as facts and that the
actual results during the period or periods covered by the Projections may
differ from the projected results and that the differences may be material.
Notwithstanding the foregoing, as of the Effective Date, management of Company
believed that the Projections were reasonable and attainable.
5.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR PAYMENTS.
Since December 31, 1996, no event or change has occurred that has caused or
evidences, either in any case or in the aggregate, a Material Adverse Effect.
Since the Closing Date, neither Company nor any of its Subsidiaries has directly
or indirectly declared, ordered, paid or made, or set apart any sum or property
for, any Restricted Junior Payment or agreed to do so except as permitted by
subsection 7.5.
5.5 TITLE TO PROPERTIES; LIENS.
After giving effect to the transactions contemplated by this Agreement to
occur on the Effective Date, Company and its Subsidiaries have good, sufficient
and legal title to all of their respective properties and assets reflected in
the financial statements referred to in the financial statements referred to in
subsection 5.3 or in the most recent financial statements delivered pursuant to
subsection 6.1 of the Existing Credit Agreement, except for assets disposed of
since the date of such financial statements in the ordinary course of business
or as otherwise permitted under subsection 7.7. Except as permitted by this
Agreement, all such properties and assets are free and clear of Liens.
5.6 LITIGATION; ADVERSE FACTS.
There is no action, suit, proceeding, arbitration or governmental
investigation (whether or not purportedly on behalf of Company or any of its
Subsidiaries) at law or in equity or before or by any federal, state, municipal
or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, pending or, to the knowledge of Company,
threatened against or affecting Company or any of its Subsidiaries or any
property of Company or any of its Subsidiaries that, either individually or in
the aggregate together with all other such actions, proceedings and
investigations, has had, or could reasonably be expected to result in, a
Material Adverse Effect, it being understood, solely for purposes of this
sentence, that any money judgments or settlements the occurrence of which do not
give rise to an Event of Default under subsection 8.8 shall not be deemed to
have a Material Adverse Effect. Neither Company nor any of its Subsidiaries is
or has been (i) in violation of any applicable law (including any Debt
Collection Laws) that has had, or could reasonably be expected to result in, a
Material Adverse Effect, it being understood for purposes of this clause (i)
that any such violation which results in money judgments or settlements the
occurrence of which do not give rise to an Event of Default under subsection 8.8
shall not be deemed to have a Material Adverse Effect, or (ii) subject to or in
default with respect to any final judgment, writ, injunction, decree, rule or
regulation of any court or any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, that has had, or could reasonably be expected to result in, a Material
Adverse Effect.
5.7 PAYMENT OF TAXES.
Except to the extent permitted by subsection 6.3, all material tax returns
and reports of Company and its Subsidiaries required to be filed by any of them
have been timely filed, and all material taxes, assessments, fees and other
governmental charges upon Company and its Subsidiaries and upon their respective
properties, assets, income, businesses and franchises which are due and payable
have been paid when due and payable. Company does not know of any proposed tax
assessment against Company or any of its Subsidiaries other than those which are
being actively contested by Company or such Subsidiary in good faith and by
appropriate proceedings and for which reserves or other appropriate provisions,
if any, as may be required in conformity with GAAP shall have been made or
provided therefor.
5.8 PERFORMANCE OF AGREEMENTS; MATERIALLY ADVERSE AGREEMENTS.
A. Neither Company nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any of its Contractual Obligations, and no condition
exists that, with the giving of notice or the lapse of time or both, would
constitute such a default, except where the consequences, direct or indirect, of
such default or defaults, if any, would not have a Material Adverse Effect.
B. Neither Company nor any of its Subsidiaries is a party to or is
otherwise subject to any agreement or instrument or any charter or other
internal restriction which has had, or could reasonably be expected (based upon
assumptions that are reasonable at the time made) to result in, individually or
in the aggregate, a Material Adverse Effect.
5.9 GOVERNMENTAL REGULATION.
Neither Company nor any of its Subsidiaries is subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act or the Investment Company Act of 1940 or under any other
federal or state statute or regulation which may limit its ability to incur
Indebtedness or which may otherwise render all or any portion of the Obligations
unenforceable.
5.10 SECURITIES ACTIVITIES.
Neither Company nor any of its Subsidiaries is engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock.
5.11 EMPLOYEE BENEFIT PLANS.
A. Company and each of its ERISA Affiliates are in substantial compliance
with all applicable provisions and requirements of ERISA with respect to each
Employee Benefit Plan, and have substantially performed all their obligations
under each Employee Benefit Plan, except to the extent that any non-compliance
with ERISA or any such failure to perform would not result in material liability
of Company or any of its ERISA Affiliates.
B. No ERISA Event has occurred which has resulted or is reasonably likely
to result in any material liability to the PBGC or to any other Person.
C. Except to the extent required under Section 4980B of the Internal
Revenue Code and/or Section 601 of ERISA, neither Company nor any of its
Subsidiaries maintains or contributes to any employee welfare benefit plan (as
defined in Section 3(1) of ERISA) that provides health or welfare benefits
(through the purchase of insurance or otherwise) for any retired or former
employees of Company or any of its Subsidiaries, except to the extent that the
provision of such benefits would not have a Material Adverse Effect.
D. No Pension Plan has an Unfunded Current Liability in an amount that
would have a Material Adverse Effect.
5.12 CERTAIN FEES.
No broker's or finder's fee or commission will be payable with respect to
this Agreement or any of the loan transactions contemplated hereby, and Company
hereby indemnifies Lenders against, and agrees that it will hold Lenders
harmless from, any claim, demand or liability for any such broker's or finder's
fees alleged to have been incurred in connection herewith or therewith and any
expenses (including reasonable fees, expenses and disbursements of counsel)
arising in connection with any such claim, demand or liability.
5.13 ENVIRONMENTAL PROTECTION.
Except as set forth on Schedule 5.13 annexed hereto or as will not result
in a Material Adverse Effect:
(i) the operations of Company and each of its Subsidiaries (including,
without limitation, all operations and conditions at or in the Facilities)
comply in all material respects with all Environmental Laws;
(ii) Company and each of its Subsidiaries have obtained all material
Governmental Authorizations under Environmental Laws necessary to their
respective operations, and all such Governmental Authorizations are in good
standing, and Company and each of its Subsidiaries are in compliance with
all material terms and conditions of such Governmental Authorizations;
(iii) neither Company nor any of its Subsidiaries has received (a) any
notice or claim to the effect that it is or may be liable to any Person as
a result of or in connection with any Hazardous Materials or (b) any letter
or request for information under Section 104 of the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. ss.
9604) or comparable state laws, and, to the best knowledge of Company, none
of the operations of Company or any of its Subsidiaries is the subject of
any federal or state investigation relating to or in connection with any
Hazardous Materials at any Facility or at any other location;
(iv) none of the operations of Company or any of its Subsidiaries is
subject to any judicial or administrative proceeding alleging the violation
of or liability under any Environmental Laws;
(v) to the knowledge of Company, neither Company nor any of its
Subsidiaries nor any of their respective Facilities or operations are
subject to any outstanding written order or agreement with any governmental
authority or private party relating to (a) any Environmental Laws or (b)
any Environmental Claims;
(vi) neither Company nor any of its Subsidiaries has any material
contingent liability in connection with any Release of any Hazardous
Materials by Company or any of its Subsidiaries;
(vii) neither Company nor any of its Subsidiaries nor, to the
knowledge of Company, any predecessor of Company or any of its Subsidiaries
has filed any notice under any Environmental Law indicating past or present
treatment or Release of Hazardous Materials at any Facility, and none of
Company's or any of its Subsidiaries' operations involves the generation,
transportation, treatment, storage or disposal of hazardous waste, as
defined under 40 C.F.R. Parts 260-270 or any state equivalent;
(viii) to the knowledge of Company, no Hazardous Materials exist on or
under any Facility in a manner that has a reasonable possibility of giving
rise to an Environmental Claim, and neither Company nor any of its
Subsidiaries has filed any notice or report of a Release of any Hazardous
Materials that has a reasonable possibility of giving rise to an
Environmental Claim;
(ix) neither Company nor any of its Subsidiaries nor, to the knowledge
of Company, any of their respective predecessors has disposed of any
Hazardous Materials in a manner that has a reasonable possibility of giving
rise to an Environmental Claim;
(x) to the knowledge of Company, no underground storage tanks or
surface impoundments are on or at any Facility; and
(xi) to the knowledge of Company, no Lien in favor of any Person
relating to or in connection with any Environmental Claim has been filed or
has been attached to any Facility.
5.14 EMPLOYEE MATTERS.
There is no strike or work stoppage in existence or threatened involving
Company or any of its Subsidiaries that could reasonably be expected to have a
Material Adverse Effect.
5.15 SOLVENCY.
Each Loan Party is, and Company and its Subsidiaries, taken as a whole,
are, and, upon the incurrence of any Obligations by any Loan Party on any date
on which this representation is made, will be, Solvent.
5.16 MATTERS RELATING TO COLLATERAL.
A. CREATION, PERFECTION AND PRIORITY OF LIENS. The execution and delivery
of the Collateral Documents by Loan Parties, together with (i) the actions taken
on or prior to the date hereof pursuant to subsection 4.2J of the Original
Credit Agreement, subsections 4.3H, 4.4H and 6.9 of the Existing Credit
Agreement and subsections 4.2S, 4.3B and 6.9 of this Agreement, and (ii) the
delivery to Collateral Agent of any Pledged Collateral not delivered to
Collateral Agent at the time of execution and delivery of the applicable
Collateral Document (all of which Pledged Collateral has been so delivered) are
effective to create in favor of Collateral Agent for the benefit of Agents and
Lenders, as security for the respective Secured Obligations (as defined in the
applicable Collateral Document in respect of any Collateral), a valid and
perfected first priority Lien on all of the Collateral, and all filings and
other actions necessary or desirable to perfect and maintain the perfection and
first priority status of such Liens have been duly made or taken and remain in
full force and effect, other than the filing of any UCC financing statements
delivered to Collateral Agent for filing (but not yet filed) and the periodic
filing of UCC continuation statements in respect of UCC financing statements
filed by or on behalf of Collateral Agent.
B. GOVERNMENTAL AUTHORIZATIONS. No authorization, approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body is required for either (i) the pledge or grant by any Loan Party of the
Liens purported to be created in favor of Chase Co-Administrative Agent pursuant
to any of the Collateral Documents or (ii) the exercise by Chase
Co-Administrative Agent of any rights or remedies in respect of any Collateral
(whether specifically granted or created pursuant to any of the Collateral
Documents or created or provided for by applicable law), except for filings or
recordings contemplated by subsection 5.16A and except as may be required, in
connection with the disposition of any Pledged Collateral, by laws generally
affecting the offering and sale of securities.
C. ABSENCE OF THIRD-PARTY FILINGS. Except such as may have been filed in
favor of Chase Co-Administrative Agent as contemplated by subsection 5.16A, (i)
no effective UCC financing statement, fixture filing or other instrument similar
in effect covering all or any part of the Collateral is on file in any filing or
recording office and (ii) no effective filing covering all or any part of the
intellectual property Collateral is on file in the United States Patent and
Trademark Office.
D. MARGIN REGULATIONS. The pledge of the Pledged Collateral pursuant to the
Collateral Documents does not violate Regulation G, Regulation T, Regulation U
or Regulation X of the Board of Governors of the Federal Reserve System.
E. INFORMATION REGARDING COLLATERAL. All information supplied to any Agent
by or on behalf of any Loan Party with respect to any of the Collateral (in each
case taken as a whole with respect to any particular Collateral) is accurate and
complete in all material respects.
5.17 RELATED AGREEMENTS.
A. DELIVERY OF RELATED AGREEMENTS. Company has delivered to Agents complete
and correct copies of each Related Agreement and of all exhibits and schedules
thereto.
B. PAYCO'S WARRANTIES. Except to the extent otherwise set forth herein or
in the schedules hereto, each of the representations and warranties given by
Payco to Company in the Payco Acquisition Agreement was true and correct in all
material respects as of the Closing Date (or as of any earlier date to which
such representation and warranty specifically relates), subject to the
qualifications set forth in the schedules to the Payco Acquisition Agreement.
C. ACCELERATED'S WARRANTIES AND NSA'S WARRANTIES. Except to the extent
otherwise set forth herein or in the schedules hereto, each of the
representations and warranties given by Accelerated to Company in the
Accelerated Acquisition Agreement and by NSA to Company in the NSA Acquisition
Agreement was true and correct in all material respects as of the First
Amendment Date (or as of any earlier date to which such representation and
warranty specifically relates) in the case of the NSA Acquisition Agreement and
as of November 10, 1997 (or as of any earlier date to which such representation
and warranty specifically relates), in the case of the Accelerated Acquisition
Agreement, in each case subject to the qualifications set forth in the schedules
to the Accelerated Acquisition Agreement or the NSA Acquisition Agreement, as
applicable.
D. UNION'S WARRANTIES. Except to the extent otherwise set forth herein or
in the schedules hereto, each of the representations and warranties given by
Union to Company in the Union Acquisition Agreement and the other Union
Acquisition Documents is true and correct in all material respects as of the
date hereof (or as of any earlier date to which such representation and warranty
specifically relates) and will be true and correct in all material respects as
of the Effective Date (or as of such earlier date, as the case may be), in each
case subject to the qualifications set forth in the schedules to the Union
Acquisition Agreement or the other Union Acquisition Documents, as applicable.
Notwithstanding the foregoing, Company shall not be deemed to make any
representation hereunder with respect to representations and warranties of Union
described in this subsection prior to consummation of the Union Acquisition.
E. WARRANTIES OF COMPANY. Subject to the qualifications and the schedules
set forth therein, (i) each of the representations and warranties given by
Company to Payco in the Payco Acquisition Agreement was true and correct in all
material respects as of the Closing Date, (ii) each of the representations and
warranties given by Company to Accelerated and its Subsidiaries in the
Accelerated Acquisition Agreement was true and correct in all material respects
as of the November 10, 1997, (iii) each of the representations and warranties
given by Company to NSA and its Subsidiaries in the NSA Acquisition Agreement
was true and correct in all material respects as of the First Amendment Date and
(iv) each of the representations and warranties given by Merger Sub to Union in
the Union Acquisition Agreement is true and correct in all material respects as
of the date hereof (or its later date of execution) and will be true and correct
in all material respects as of the Effective Date. Notwithstanding the
foregoing, Company shall not be deemed to make any representation hereunder with
respect to representations and warranties described in clause (iv) of this
subsection prior to consummation of the Union Acquisition.
F. SURVIVAL. Notwithstanding anything in the Payco Acquisition Agreement,
the Accelerated Acquisition Agreement, the NSA Acquisition Agreement or the
Union Acquisition Agreement to the contrary, (i) the representations and
warranties of Company set forth in subsections 5.17B and 5.17E(i) shall, for
purposes of this Agreement, survive the Closing Date for the benefit of Agents
and Lenders, (ii) the representations and warranties of Company set forth in
subsections 5.17C, 5.17E(ii) and 5.17E(iii) shall, solely for purposes of this
Agreement, survive the First Amendment Date for the benefit of Agents and
Lenders and (iii) the representations and warranties of Company set forth in
subsections 5.17D and 5.17(E)(iv) shall, solely for purposes of this Agreement,
survive the Effective Date for the benefit of Agents and Lenders.
5.18 DISCLOSURE.
A. LOAN DOCUMENTS. The representations of Company and its Subsidiaries
contained in the Loan Documents, Related Documents and in any other document,
certificate or written statement furnished to Lenders by or on behalf of Company
or any of its Subsidiaries for use in connection with the transactions
contemplated by this Agreement, when taken as a whole, do not contain any untrue
statement of a material fact or omit to state a material fact (known to Company
or the applicable Subsidiary, in the case of any document not furnished by
Company or such Subsidiary) necessary in order to make the statements contained
herein or therein not misleading in light of the circumstances in which the same
were made. Any projections and pro forma financial information contained in such
materials are based upon good faith estimates and assumptions believed by
Company to be reasonable at the time made, it being recognized by Lenders that
such projections as to future events are not to be viewed as facts and that
actual results during the period or periods covered by any such projections may
differ from the projected results. There is no fact known (or which should upon
the reasonable exercise of diligence be known) to Company (other than matters of
a general economic nature) that has had, or could reasonably be expected to
result in, a Material Adverse Effect and that has not been disclosed herein or
in such other documents, certificates and statements furnished to Lenders for
use in connection with the transactions contemplated hereby.
B. TENDER OFFER MATERIALS. The Tender Offer Materials do not contain any
untrue statement of a material fact or omit to state a material fact (known to
Company or any of its Subsidiaries, in the case of any document not furnished by
it) necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances in which the same were made.
5.19 SUBORDINATION OF SELLER NOTES.
The subordination provisions of the Existing Seller Note and any Permitted
Seller Notes are enforceable against the holders thereof, and the Loans and
other monetary Obligations hereunder are and will be within the definition of
"Senior Indebtedness" included in such provisions.
5.20 MARGIN LENDING MATTERS.
At the time of the making of the Delayed-Draw Term Loans and after giving
effect to the Union Merger, not more than 25% of the value of the assets of the
Company, or of the Company and its Subsidiaries on a consolidated basis, shall
constitute Margin Stock. Neither the making of any Loan hereunder, nor the use
of the proceeds thereof, will violate or be inconsistent with the provisions of
Regulation G, T, U or X of the Board of Governors of the Federal Reserve System
and no part of the proceeds of any Loan will be used to purchase or carry any
Margin Stock in violation of Regulation G, T, U or X or to extend credit for the
purpose of purchasing or carrying any Margin Stock in violation of Regulation G,
T, U or X.
SECTION 6.
AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 6.
6.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Company will maintain, and cause each of its Subsidiaries to maintain, a
system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements in conformity
with GAAP. Company will deliver to Chase Co-Administrative Agent (and Chase
Co-Administrative Agent will, after receipt thereof, deliver to each Lender):
(i) Monthly Financials: as soon as available and in any event within
(y) 45 days after each of the first two calendar months ending after the
Effective Date, and (z) thereafter within 30 days after the last day of
each calendar month other than the last month of a Fiscal Quarter, (a) the
consolidated balance sheets of Company and its Subsidiaries as at the end
of each fiscal month ending after the Effective Date and the related
consolidated statements of income, stockholders' equity and cash flows of
Company and its Subsidiaries for such month and for the period from the
beginning of the then current Fiscal Year to the end of such month, setting
forth in each case in comparative form the corresponding figures for the
corresponding periods of the previous fiscal year and the corresponding
figures from the consolidated plan and financial forecast for the current
Fiscal Year delivered pursuant to subsection 6.1(xiii), all in reasonable
detail and certified by the chief financial officer of Company that they
fairly present, in all material respects, the financial condition of
Company and its Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods indicated, subject to
changes resulting from audit and normal year-end adjustments; and (b) a
narrative report describing the operations of Company and its Subsidiaries
in the form prepared for presentation to senior management for such month
and for the period from the beginning of the then current Fiscal Year to
the end of such month;
(ii) Quarterly Financials: as soon as available and in any event
within 45 days after the end of each Fiscal Quarter, (a) the consolidated
balance sheets of Company and its Subsidiaries as at the end of such Fiscal
Quarter and the related consolidated statements of income, stockholders'
equity and cash flows of Company and its Subsidiaries for such Fiscal
Quarter and for the period from the beginning of the then current Fiscal
Year to the end of such Fiscal Quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding periods of
the previous fiscal year and the corresponding figures from the
consolidated plan and financial forecast for the current Fiscal Year
delivered pursuant to subsection 6.1(xiii), all in reasonable detail and
certified by the chief financial officer of Company that they fairly
present, in all material respects, the financial condition of Company and
its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, subject to
changes resulting from audit and normal year-end adjustments, and (b) a
narrative report describing the operations of Company and its Subsidiaries
in the form prepared for presentation to senior management for such Fiscal
Quarter and for the period from the beginning of the then current Fiscal
Year to the end of such Fiscal Quarter;
(iii) Year-End Financials: as soon as available and in any event
within 90 days after the end of each Fiscal Year, (a) the consolidated and
consolidating balance sheets of Company and its Subsidiaries as at the end
of such Fiscal Year and the related consolidated and consolidating
statements of income, stockholders' equity and cash flows of Company and
its Subsidiaries for such Fiscal Year, setting forth in each case in
comparative form the corresponding figures for the previous fiscal year and
the corresponding figures from the consolidated plan and financial forecast
delivered pursuant to subsection 6.1(xiii) for the Fiscal Year covered by
such financial statements, all in reasonable detail and certified by the
chief financial officer of Company that they fairly present, in all
material respects, the financial condition of Company and its Subsidiaries
as at the dates indicated and the results of their operations and their
cash flows for the periods indicated, (b) a narrative report describing the
operations of Company and its Subsidiaries in the form prepared for
presentation to senior management for such Fiscal Year, and (c) in the case
of such consolidated financial statements, a report thereon of independent
certified public accountants of recognized national standing selected by
Company and reasonably satisfactory to Chase Co-Administrative Agent, which
report shall be unqualified as to the ability of Company and its
Subsidiaries to continue as a going concern and as to scope of audit, and
shall state that such consolidated financial statements fairly present, in
all material respects, the consolidated financial position of Company and
its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated in conformity
with GAAP applied on a basis consistent with prior years (except as
otherwise disclosed in such financial statements) and that the examination
by such accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted auditing
standards;
(iv) Officer's and Compliance Certificates: together with each
delivery of financial statements of Company and its Subsidiaries pursuant
to subdivisions (ii) and (iii) above, (a) an Officer's Certificate of
Company stating that the signer has reviewed the terms of this Agreement
and have made, or caused to be made under their supervision, a review in
reasonable detail of the transactions and condition of Company and its
Subsidiaries during the accounting period covered by such financial
statements and that such review has not disclosed the existence during or
at the end of such accounting period, and that the signer does not have
knowledge of the existence as at the date of such Officer's Certificate, of
any condition or event that constitutes an Event of Default or Potential
Event of Default, or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and what action
Company has taken, is taking and proposes to take with respect thereto; and
(b) a Compliance Certificate demonstrating in reasonable detail compliance
during and at the end of the applicable accounting periods with the
restrictions contained in Section 7;
(v) Reconciliation Statements: if, as a result of any change in
accounting principles and policies from those used in the preparation of
the audited financial statements referred to in subsection 5.3, the
consolidated financial statements of Company and its Subsidiaries delivered
pursuant to subdivisions (i), (ii), (iii) or (xiii) of this subsection 6.1
will differ in any material respect from the consolidated financial
statements that would have been delivered pursuant to such subdivisions had
no such change in accounting principles and policies been made, then (a)
together with the first delivery of financial statements pursuant to
subdivision (i), (ii), (iii) or (xiii) of this subsection 6.1 following
such change, consolidated financial statements of Company and its
Subsidiaries for (y) the current Fiscal Year to the effective date of such
change and (z) the two full Fiscal Years immediately preceding the Fiscal
Year in which such change is made, in each case prepared on a pro forma
basis as if such change had been in effect during such periods, and (b)
together with each delivery of financial statements pursuant to subdivision
(i), (ii), (iii) or (xiii) of this subsection 6.1 following such change, a
written statement of the chief accounting officer or chief financial
officer of Company setting forth the differences which would have resulted
if such financial statements had been prepared without giving effect to
such change;
(vi) Accountants' Certification: together with each delivery of
consolidated financial statements of Company and its Subsidiaries pursuant
to subdivision (iii) above, a written statement by the independent
certified public accountants giving the report thereon (a) stating that
their audit examination has included a reading of the terms of this
Agreement and the other Loan Documents as they relate to accounting
matters, and (b) stating whether, in connection with their audit
examination, any condition or event, insofar as such condition or event
relates to the covenants set forth in subsection 7.6 or to accounting
matters, that constitutes an Event of Default or Potential Event of Default
has come to their attention and, if such a condition or event has come to
their attention, specifying the nature and period of existence thereof;
provided that such accountants shall not be liable by reason of any failure
to obtain knowledge of any such Event of Default or Potential Event of
Default that would not be disclosed in the course of their audit
examination;
(vii) Accountants' Reports: promptly upon receipt thereof (unless
restricted by applicable professional standards), copies of all reports
submitted to Company by independent certified public accountants in
connection with each annual, interim or special audit of the financial
statements of Company and its respective Subsidiaries made by such
accountants, including, without limitation, any comment letter submitted by
such accountants to management in connection with their annual audit;
(viii) SEC Filings and Press Releases: promptly upon their becoming
available, copies of (a) all financial statements, reports, notices and
proxy statements sent or made available generally by Company to its
security holders, (b) all regular and periodic reports and all registration
statements (other than on Form S-8 or a similar form) and prospectuses, if
any, filed by Company or any of its Subsidiaries with any securities
exchange or with the Securities and Exchange Commission or any governmental
or private regulatory authority, and (c) all press releases and other
statements made available generally by Company or any of its Subsidiaries
to the public concerning material developments in the business of Company
or any of its Subsidiaries;
(ix) Events of Default, etc.: promptly upon any officer of Company
obtaining knowledge (a) of any condition or event that constitutes an Event
of Default or Potential Event of Default, or becoming aware that any Lender
has given any notice (other than to Chase Co-Administrative Agent) or taken
any other action with respect to a claimed Event of Default or Potential
Event of Default, (b) that any Person has given any notice to Company or
any of its Subsidiaries or taken any other action with respect to a claimed
default or event or condition of the type referred to in subsection 8.2,
(c) of any condition or event that would be required to be disclosed in a
current report filed by Company with the Securities and Exchange Commission
on Form 8-K (Items 1, 2, 4, 5 and 6 of such Form as in effect on the date
hereof) if Company were required to file such reports under the Exchange
Act, or (d) of the occurrence of any event or change that has caused or
evidences, either in any case or in the aggregate, a Material Adverse
Effect, an Officer's Certificate specifying the nature and period of
existence of such condition, event or change, or specifying the notice
given or action taken by any such Person and the nature of such claimed
Event of Default, Potential Event of Default, default, event or condition,
and what action Company has taken, is taking and proposes to take with
respect thereto;
(x) Litigation or Other Proceedings: (a) promptly upon any officer of
Company obtaining knowledge of the institution of, or non-frivolous threat
of, any action, suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration against or affecting
Company or any of its Subsidiaries or any property of Company or any of its
Subsidiaries (collectively, "Proceedings") not previously disclosed in
writing by Company to Lenders or Chase Co-Administrative Agent any material
development in any Proceeding that, in any case:
(1) if adversely determined, has a reasonable possibility of
giving rise to a Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the consummation of, or
to recover any damages or obtain relief as a result of, the
transactions contemplated hereby;
written notice thereof together with such other information as may be
reasonably available to Company to enable Lenders and their counsel to
evaluate such matters; and (b) within 45 days after the end of each Fiscal
Quarter, a schedule of all Proceedings involving an alleged liability of,
or claims against or affecting, Company or any of its Subsidiaries equal to
or greater than $2,000,000 which Company believes will likely result in
damages to Company of such amount, and promptly after request by either
Co-Administrative Agent such other information as may be reasonably
requested by such Co-Administrative Agent to enable such Co-Administrative
Agent and its counsel to evaluate any of such Proceedings;
(xi) ERISA Events: promptly upon becoming aware of the occurrence of
any ERISA Event, a written notice specifying the nature thereof, what
action Company or any of its ERISA Affiliates has taken, is taking or
proposes to take with respect thereto and, when known, any action taken or
threatened by the Internal Revenue Service, the Department of Labor or the
PBGC with respect thereto;
(xii) ERISA Notices: with reasonable promptness, copies of (a) all
written notices received by Company or any of its ERISA Affiliates from a
Multiemployer Plan sponsor concerning an ERISA Event; and (b) such other
documents or governmental reports or filings relating to any Employee
Benefit Plan as either Co-Chase Co-Administrative Agent shall reasonably
request;
(xiii) Financial Plans: as soon as practicable and in any event no
later than the beginning of each Fiscal Year, a monthly consolidated and
consolidating plan and financial forecast for the next succeeding Fiscal
Year, including, without limitation, (a) forecasted consolidated and
consolidating balance sheets and forecasted consolidated and consolidating
statements of income and cash flows of Company and its Subsidiaries for
such Fiscal Year, together with a pro forma Compliance Certificate for such
Fiscal Year and an explanation of the assumptions on which such forecasts
are based, and (b) such other information and projections as either
Co-Administrative Agent may reasonably request;
(xiv) Insurance: as soon as practicable and in any event by the last
day of each Fiscal Year, a report in form and substance satisfactory to
Co-Administrative Agents outlining all material insurance coverage
maintained as of the date of such report by Company and its Subsidiaries
and all material insurance coverage planned to be maintained by Company and
its Subsidiaries in the immediately succeeding Fiscal Year;
(xv) Environmental Audits and Reports: as soon as practicable
following receipt thereof, copies of all environmental audits and reports,
whether prepared by personnel of Company or any of its Subsidiaries or by
independent consultants, with respect to significant environmental matters
at any Facility or which relate to an Environmental Claim which could
result in a Material Adverse Effect;
(xvi) Board of Directors: with reasonable promptness, written notice
of any change in the Board of Directors of Company;
(xvii) New Subsidiaries: promptly upon any Person becoming a
Subsidiary of Company, a written notice setting forth with respect to such
Person (a) the date on which such Person became a Subsidiary of Company and
(b) all of the data required to be set forth in Schedule 5.1 annexed hereto
with respect to all Subsidiaries of Company (it being understood that such
written notice shall be deemed to supplement Schedule 5.1 annexed hereto
for all purposes of this Agreement); and
(xviii) Existing Agreement Financial Covenants: on or before March 31,
1998, an Officer's Certificate to Lenders evidencing compliance with the
requirements of subsection 7.6 of the Existing Credit Agreement as of
December 31, 1997; provided that for purposes of demonstrating such
compliance an amount, not in excess of $7.2 million, representing
unrealized cost savings with respect to which action has been initiated
during 1997, shall be added to Consolidated EBITDA.
(xix) Other Information: with reasonable promptness, such other
information and data with respect to Company or any of its Subsidiaries as
from time to time may be reasonably requested by either Co-Administrative
Agent.
For purposes of subsections 4.2P(iii), 4.2P(iv) and 4.2P(v) and this
subsection 6.1, "consolidating" balance sheets and "consolidating" statements of
income, stockholders equity and cash flows refer to financial statements
consolidating the financial position, results of operations and cash flows of
the major operating groups of Company's Subsidiaries, which operating groups as
of the Effective Date consist of (1) A.M. Miller & Associates, Inc. and its
Subsidiaries, (2) Account Portfolios, Inc. and its Subsidiaries, (3) Continental
Credit Services, Inc., Alaska Financial Services, Inc., Southwest Credit
Services, Inc. and their respective Subsidiaries, (4) Payco and its
Subsidiaries, (5) NSA and its Subsidiaries, (6) Accelerated and its Subsidiaries
and (7) Union and its Subsidiaries.
6.2 CORPORATE EXISTENCE, ETC.
Except as permitted under subsection 7.7, Company will, and will cause each
of its Subsidiaries to, at all times preserve and keep in full force and effect
its corporate existence and all rights and franchises material to the business
of Company and its Subsidiaries (on a consolidated basis). Without limiting the
foregoing, Company shall, and shall cause each of its Subsidiaries to, file and
diligently process to completion applications for all material permits, licenses
and other governmental approvals necessary for the operation of its debt
collection business.
6.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
A. Company will, and will cause each of its Subsidiaries to, pay all
material taxes and all assessments and other governmental charges imposed upon
it or any of its properties or assets or in respect of any of its income,
businesses or franchises before any penalty accrues thereon, and all claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums that have become due and payable and that by law have or may
become a Lien upon any of its properties or assets, prior to the time when any
penalty or fine shall be incurred with respect thereto; provided that no such
charge or claim need be paid if it is being contested in good faith by
appropriate proceedings timely instituted and diligently conducted and if such
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor.
B. Company will not, nor will it permit any of its Subsidiaries to, file or
consent to the filing of any consolidated income tax return with any Person
(other than Company and its Subsidiaries).
6.4 MAINTENANCE OF PROPERTIES; INSURANCE.
Company will, and will cause each of its Subsidiaries to, maintain or cause
to be maintained in good repair, working order and condition, ordinary wear and
tear excepted, all material properties used or useful in the business of Company
and its Subsidiaries and from time to time will make or cause to be made all
appropriate repairs, renewals and replacements thereof. Company will maintain or
cause to be maintained, with financially sound and reputable insurers, insurance
with respect to its properties and business and the properties and businesses of
its Subsidiaries against loss or damage of the kinds customarily carried or
maintained under similar circumstances by corporations of established reputation
engaged in similar businesses. Each such policy of casualty insurance covering
damage to or loss of property shall name Chase Co-Administrative Agent for the
benefit of Agent and Lenders as the loss payee thereunder for all losses,
subject to application of proceeds as required by subsection 2.4B(iii)(d), and
shall provide for at least 30 days' prior written notice to Chase
Co-Administrative Agent of any modification or cancellation of such policy.
6.5 INSPECTION; LENDER MEETING.
Company shall, and shall cause each of its Subsidiaries to, permit any
authorized representatives designated by any Agent or Lender to visit and
inspect any of the properties of Company or any of its Subsidiaries, including
its and their financial and accounting records, and to make copies and take
extracts therefrom, and to discuss its and their affairs, finances and accounts
with its and their officers and independent public accountants, all upon
reasonable advance notice and at such reasonable times during normal business
hours and as often as may be reasonably requested. Without in any way limiting
the foregoing, Company will, upon the request of Chase Co-Administrative Agent,
participate in a meeting of Agents and Lenders once during each Fiscal Year to
be held at Company's corporate offices (or such other location as may be agreed
to by Company and Chase Co-Administrative Agent) at such time as may be agreed
to by Company and Chase Co-Administrative Agent.
6.6 COMPLIANCE WITH LAWS, ETC.
Company shall, and shall cause each of its Subsidiaries to, comply with the
requirements of all applicable laws, rules, regulations and orders of any
governmental authority (including all Debt Collection Laws), noncompliance with
which could reasonably be expected to cause a Material Adverse Effect.
6.7 ENVIRONMENTAL DISCLOSURE AND INSPECTION.
A. Company shall, and shall cause each of its Subsidiaries to, exercise all
due diligence in order to comply and cause (i) all tenants under any leases or
occupancy agreements affecting any portion of the Facilities and (ii) all other
Persons on or occupying such property, to comply in all material respects with
all Environmental Laws.
B. Company agrees that Chase Co-Administrative Agent may, from time to time
and in its reasonable discretion, retain, at Company's expense, an independent
professional consultant to review any report relating to Hazardous Materials
prepared by or for Company and to conduct its own investigation of any Facility
currently owned, leased, operated or used by Company or any of its Subsidiaries,
and Company agrees to use all reasonable efforts to obtain permission for Chase
Co-Administrative Agent's professional consultant to conduct its own
investigation of any such Facility previously owned, leased, operated or used by
Company or any of its Subsidiaries. Company shall use its reasonable efforts to
obtain for Chase Co-Administrative Agent and its agents, employees, consultants
and contractors the right, upon reasonable notice to Company, to enter into or
on to the Facilities currently owned, leased, operated or used by Company or any
of its Subsidiaries to perform such tests on such property as are reasonably
necessary to conduct such a review and/or investigation. Any such investigation
of any Facility shall be conducted, unless otherwise agreed to by Company and
Chase Co-Administrative Agent, during normal business hours and, to the extent
reasonably practicable, shall be conducted so as not to interfere with the
ongoing operations at any such Facility or to cause any damage or loss to any
property at such Facility. Company and Chase Co-Administrative Agent hereby
acknowledge and agree that any report of any investigation conducted at the
request of Chase Co-Administrative Agent pursuant to this subsection 6.7B will
be obtained and shall be used by Chase Co-Administrative Agent and Lenders for
the purposes of Lenders' internal credit decisions, to monitor and police the
Loans and to protect Lenders' security interests, if any, created by the Loan
Documents. Chase Co-Administrative Agent agrees to deliver a copy of any such
report to Company with the understanding that Company acknowledges and agrees
that (i) it will indemnify and hold harmless each Agent and Lender from any
costs, losses or liabilities relating to any Loan Party's use of or reliance on
such report, (ii) no Agent nor any Lender makes any representation or warranty
with respect to such report, and (iii) by delivering such report to Company, no
Agent nor any Lender is requiring or recommending the implementation of any
suggestions or recommendations contained in such report.
C. Company shall promptly advise Chase Co-Administrative Agent in writing
and in reasonable detail of (i) any Release of any Hazardous Materials required
to be reported to any federal, state, local or foreign governmental or
regulatory agency under any applicable Environmental Laws, (ii) any and all
written communications with respect to any Environmental Claims that have a
reasonable possibility of giving rise to a Material Adverse Effect or with
respect to any Release of Hazardous Materials required to be reported to any
federal, state or local governmental or regulatory agency, (iii) any remedial
action taken by Company or any other Person in response to (x) any Hazardous
Materials on, under or about any Facility, the existence of which has a
reasonable possibility of resulting in an Environmental Claim having a Material
Adverse Effect, or (y) any Environmental Claim that could have a Material
Adverse Effect, (iv) Company's discovery of any occurrence or condition on any
real property adjoining or in the vicinity of any Facility that could cause such
Facility or any part thereof to be subject to any restrictions on the ownership,
occupancy, transferability or use thereof under any Environmental Laws, and (v)
any request for information from any governmental agency that suggests such
agency is investigating whether Company or any of its Subsidiaries may be
potentially responsible for a Release of Hazardous Materials.
D. Company shall promptly notify Chase Co-Administrative Agent of (i) any
proposed acquisition of stock, assets, or property by Company or any of its
Subsidiaries that could reasonably be expected to expose Company or any of its
Subsidiaries to, or result in, Environmental Claims that could have a Material
Adverse Effect or that could reasonably be expected to have a material adverse
effect on any Governmental Authorization then held by Company or any of its
Subsidiaries and (ii) any proposed action to be taken by Company or any of its
Subsidiaries to commence manufacturing, industrial or other similar operations
that could reasonably be expected to subject Company or any of its Subsidiaries
to additional laws, rules or regulations, including, without limitation, laws,
rules and regulations requiring additional environmental permits or licenses.
E. Company shall, at its own expense, provide copies of such documents or
information as either Co-Administrative Agent may reasonably request in relation
to any matters disclosed pursuant to this subsection 6.7.
6.8 COMPANY'S REMEDIAL ACTION REGARDING HAZARDOUS MATERIALS.
Company shall promptly take, and shall cause each of its Subsidiaries
promptly to take, any and all necessary remedial action in connection with the
presence, storage, use, disposal, transportation or Release of any Hazardous
Materials on or under any Facility in order to comply with all applicable
Environmental Laws and Governmental Authorizations unless the failure to so
comply could not reasonably be expected to have a Material Adverse Effect. In
the event Company or any of its Subsidiaries takes any remedial action with
respect to any Hazardous Materials on or under any Facility, Company or such
Subsidiary shall conduct and complete such remedial action in material
compliance with all applicable Environmental Laws, and in accordance with the
policies, orders and directives of all federal, state and local governmental
authorities except when, and only to the extent that, Company's or such
Subsidiary's liability for such presence, storage, use, disposal, transportation
or Release of any Hazardous Materials is being contested in good faith by
Company or such Subsidiary.
6.9 EXECUTION OF SUBSIDIARY GUARANTY AND SUBSIDIARY SECURITY AGREEMENTS BY
SUBSIDIARIES AND FUTURE SUBSIDIARIES.
In the event that any Person becomes a wholly-owned domestic Subsidiary
after the date hereof, Company will promptly notify Chase Co-Administrative
Agent of that fact and cause such Subsidiary to execute and deliver to Chase
Co-Administrative Agent and Collateral Agent a counterpart of the Subsidiary
Guaranty and the Pledge Agreement, the Security Agreement, the Limited
Partnership Security Agreement and the Trademark Security Agreement
(collectively, the "SUBSIDIARY SECURITY AGREEMENTS"), and to take all such
further actions and execute all such further documents and instruments as may be
required to grant and perfect in favor of Collateral Agent, for the benefit of
Lenders, a first-priority security interest in all of the personal property
assets of such Subsidiary described in the Subsidiary Security Agreements.
Company shall deliver to Chase Co-Administrative Agent and Collateral Agent,
together with such Loan Documents, (i) certified copies of such Subsidiary's
Articles or Certificate of Incorporation (or comparable constituent documents),
together, if applicable, with a good standing certificate from the Secretary of
State of the jurisdiction of its incorporation, each to be dated a recent date
prior to their delivery to Chase Co-Administrative Agent, (ii) a copy, if
applicable, of such Subsidiary's Bylaws, certified by its corporate secretary or
an assistant corporate secretary as of a recent date prior to their delivery to
Chase Co-Administrative Agent and Collateral Agent, (iii) a certificate executed
by the secretary or an assistant secretary of such Subsidiary as to (a) the
incumbency and signatures of the officers of such Subsidiary executing the
Subsidiary Guaranty and to which such Subsidiary is a party and (b) the fact
that the attached resolutions of the Board of Directors of such Subsidiary
authorizing the execution, delivery and performance of the Subsidiary Guaranty
and the Subsidiary Security Agreements to which such Subsidiary is a party are
in full force and effect and have not been modified or rescinded, and (iv) a
favorable opinion of counsel to such Subsidiary, in form and substance
satisfactory to Chase Co-Administrative Agent and its counsel, as to (a) the due
organization and good standing of such Subsidiary, (b) the due authorization,
execution and delivery by such Subsidiary of the Subsidiary Guaranty and the
Subsidiary Security Agreements to which such Subsidiary is a party, (c) the
enforceability of the Subsidiary Guaranty and the Subsidiary Security Agreements
to which such Subsidiary is a party against such Subsidiary, and (d) such other
matters as Chase Co-Administrative Agent and Collateral Agent may reasonably
request, all of the foregoing to be reasonably satisfactory in form and
substance to Chase Co-Administrative Agent and its counsel and Collateral Agent.
6.10 INTEREST RATE PROTECTION.
Within 180 days after the Effective Date, Company shall enter into one or
more Interest Rate Agreements with respect to the Loans, in an aggregate
notional principal amount of not less than $100,000,000, which Interest Rate
Agreements shall have the effect of establishing a maximum interest rate of not
more than 10% per annum with respect to such notional principal amount, each
such Interest Rate Agreement to be in form and substance satisfactory to
Co-Administrative Agents and with a term of not less than three years from the
Effective Date.
6.11 CONDUCT OF BUSINESS OF MERGER SUB.
Until consummation of the Union Merger, Merger Sub will engage in only
those activities that are necessary or advisable to effect the Tender Offer upon
the terms set forth in the Tender Offer Materials, to effect the Union Merger
and to effect the transactions contemplated by this Agreement.
6.12 CONDUCT OF BUSINESS OF UNION.
Until consummation of the Union Merger, Company and Merger Sub will cause
Union and its Subsidiaries to conduct their respective businesses in a manner
consistent with their past practices, and to comply with the terms of the Union
Acquisition Agreement.
6.13 UNION MERGER.
Company shall comply with, and cause Union to comply with, all covenants
set forth in the Union Acquisition Agreement that are applicable prior to the
consummation of the Union Merger. Company shall cause the Union Merger to be
consummated in accordance with the terms and conditions of the Union Acquisition
Agreement and the Tender Offer Materials and shall cause each of the conditions
set forth in subsection 4.3 to be fulfilled as soon as practicable and, in any
event, no later than 120 calendar days after the Effective Date. In the event
that the Tendered Union Shares to be purchased concurrently with receipt of the
proceeds of the initial Tranche C Term Loans on the Effective Date shall
represent, in the aggregate, not less than 90% of the outstanding shares of
Union Common Stock and, in any case, the number of shares of Union Common Stock
required to permit Company to cause the Union Merger to occur in accordance with
the terms of the Union Acquisition Agreement and Section 253 of the Delaware
General Corporation Law, Company shall cause the Union Merger to occur under
Section 253 of the Delaware General Corporation Law on the Effective Date or as
soon thereafter as practicable and in any event within 10 days of the Effective
Date.
6.14 FURTHER ASSURANCES.
At any time or from time to time upon the request of either
Co-Administrative Agent, Company will, at its expense, promptly execute,
acknowledge and deliver such further documents and do such other acts and things
as such Co-Administrative Agent may reasonably request in order to effect fully
the purposes of the Loan Documents and to provide for payment of the Obligations
in accordance with the terms of this Agreement, the Notes and the other Loan
Documents. In furtherance and not in limitation of the foregoing, Company shall
take, and cause each of its Subsidiaries to take, such actions as either
Co-Administrative Agent may reasonably request from time to time (including,
without limitation, the execution and delivery of guaranties, security
agreements, pledge agreements, mortgages, deeds of trust, stock powers,
financing statements and other documents, the filing or recording of any of the
foregoing, title insurance with respect to any of the foregoing that relates to
an interest in real property, and the delivery of stock certificates and other
collateral with respect to which perfection is obtained by possession) to ensure
that the Obligations are guaranteed by Subsidiary Guarantors and are secured by
substantially all of the assets of Company and its domestic Subsidiaries. In the
event that Company or any of its Subsidiaries creates a new domestic Subsidiary,
all of the capital stock or partnership interests of such new domestic
Subsidiary shall be duly and validly pledged to Collateral Agent for the benefit
of Agents and Lenders pursuant to the Collateral Documents, subject to no other
Liens.
SECTION 7.
NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 7.
7.1 INDEBTEDNESS.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become
or remain directly or indirectly liable with respect to, any Indebtedness,
except:
(i) Company may become and remain liable with respect to the
Obligations;
(ii) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations permitted by subsection 7.4 and, upon any
matured obligations actually arising pursuant thereto, the Indebtedness
corresponding to the Contingent Obligations so extinguished;
(iii) Company and its Subsidiaries, as applicable, may remain liable
with respect to Indebtedness described in Schedule 7.1 annexed hereto;
(iv) Indebtedness of Company and its Subsidiaries (a) under Capital
Leases capitalized on the consolidated balance sheet of Company as
liabilities, (b) with respect to sale and lease-back arrangements
identified on Schedule 7.8, or (c) secured by Liens permitted under
subsection 7.2A(iii), in an aggregate amount not exceeding, with respect to
Indebtedness incurred pursuant to clause (a) or (c) of this subsection 7.1,
$15,000,000 at any time outstanding;
(v) Company may become and remain liable with respect to Indebtedness
to any of its domestic Wholly Owned Subsidiaries, and any domestic Wholly
Owned Subsidiary of Company may become and remain liable with respect to
Indebtedness to Company or any other domestic Wholly Owned Subsidiary of
Company provided that (a) all such intercompany Indebtedness shall be
evidenced by promissory notes, (b) all such intercompany Indebtedness owed
by Company to any of its respective Subsidiaries shall be subordinated in
right of payment to the payment in full of the Obligations pursuant to the
terms of the applicable promissory notes or an intercompany subordination
agreement, in each case in form and substance satisfactory to
Co-Administrative Agents, and (c) any payment by Company or by any
Subsidiary of Company under any guaranty of the Obligations shall result in
a pro tanto reduction of the amount of any intercompany Indebtedness owed
by Company or by such Subsidiary to Company or to any of its Subsidiaries
for whose benefit such payment is made;
(vi) Company may become and remain liable with respect to the
Subordinated Notes;
(vii) Company may become and remain liable with respect to Permitted
Seller Notes, provided that the aggregate principal amount of such notes
issued shall not exceed $25,000,000; and
(viii) Company and its Subsidiaries (other than, prior to the Union
Merger Date, Merger Sub) may become and remain liable with respect to other
Indebtedness in an aggregate principal amount not to exceed at any time
outstanding $10,000,000.
7.2 LIENS AND RELATED MATTERS.
A. PROHIBITION ON LIENS. Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement, or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the Uniform Commercial Code of any state or under any similar
recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens described in Schedule 7.2 annexed hereto;
(iii) Purchase money security interests (including mortgages,
conditional sales, Capital Leases and any other title retention or deferred
purchase devices) in tangible personal property of Company or any of its
Subsidiaries existing or created at the time of acquisition thereof or
within 30 days thereafter, and the renewal, extension and refunding of any
such security interest in an amount not exceeding the amount thereof
remaining unpaid immediately prior to such renewal, extension or refunding;
provided, however, that such Indebtedness is permitted by subsection
7.1(iv) hereof;
(iv) Other Liens on assets of Company and its Subsidiaries securing
Indebtedness in an aggregate amount not to exceed $5,000,000 at any time
outstanding; and
(v) Liens granted pursuant to the Collateral Documents.
Notwithstanding the foregoing, prior to the Union Merger Date, Merger Sub may
directly or indirectly sell, assign, pledge or encumber any shares of Union
Common Stock owned by it for cash and for fair market value so long as the
proceeds thereof are held as Cash or Cash Equivalents.
B. EQUITABLE LIEN IN FAVOR OF LENDERS. If Company or any of its
Subsidiaries shall create or assume any consensual Lien upon any of its
properties or assets, whether now owned or hereafter acquired, other than Liens
excepted by the provisions of subsection 7.2A, it shall make or cause to be made
effective provision whereby the Obligations will be secured by such Lien equally
and ratably with any and all other Indebtedness secured thereby as long as any
such Indebtedness shall be so secured; provided that, notwithstanding the
foregoing, this covenant shall not be construed as a consent by Requisite
Lenders to the creation or assumption of any such Lien not permitted by the
provisions of subsection 7.2A.
C. NO FURTHER NEGATIVE PLEDGES. Except with respect to specific property
encumbered to secure payment of particular Indebtedness or to be sold pursuant
to an executed agreement with respect to an Asset Sale, neither Company nor any
of its Subsidiaries shall enter into any agreement prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether now owned
or hereafter acquired.
D. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO COMPANY OR OTHER
SUBSIDIARIES. Except as provided herein Company will not, and will not permit
any of its Subsidiaries to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any such Subsidiary to (i) pay dividends or make any other
distributions on any of such Subsidiary's capital stock owned by Company or any
other Subsidiary of Company, (ii) repay or prepay any Indebtedness owed by such
Subsidiary to Company or any other Subsidiary of Company, (iii) make loans or
advances to Company or any other Subsidiary of Company, or (iv) transfer any of
its property or assets to Company or any other Subsidiary of Company.
7.3 INVESTMENTS; JOINT VENTURES.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, make or own any Investment in any Person, including any
Joint Venture, except:
(i) Company and its Subsidiaries may make and own Investments in Cash
Equivalents;
(ii) Company and its Subsidiaries may continue to own the Investments
owned by them as of the Effective Date in any Subsidiaries of Company and;
(iii) Company and its Subsidiaries may make intercompany loans to the
extent permitted under subsection 7.1(v); (iv) Payco may continue to own
the Joint Ventures owned by it as of the Effective Date;
(v) Company and its Subsidiaries may make and own Investments in
Permitted Joint Ventures; provided that (a) at the time of such Investment,
and after giving effect thereto, no Potential Event of Default or Event of
Default shall have occurred and be continuing, (b) the aggregate amount of
all such Investments made after the Closing Date (other than Investments
made in accordance with the following clause (c)) shall not exceed
$5,000,000, (c) the aggregate amount of Investments made in a Permitted
Joint Venture the only assets of which are Qualified Loan Portfolios shall
not exceed $30,000,000 during any Fiscal Year and, after giving effect
thereto, the aggregate amount of such Investments do not exceed the
limitations set forth in subsection 7.7(v), and (d) Company and its
Subsidiaries shall pledge all of their respective equity interests in any
Permitted Joint Venture to Collateral Agent to secure the Obligations under
the Loan Documents (except to the extent, and only to the extent, such
pledge of the equity interests in a Permitted Joint Venture organized under
the laws of a foreign country would result in Company incurring additional
liabilities for taxes);
(vi) Company may make and own Investments consisting of notes received
in connection with any Asset Sale limited to 20% of the total sale price of
the assets sold in such Asset Sale; provided that the aggregate principal
amount of such notes at any time outstanding shall not exceed $2,000,000;
(vii) Company and its Subsidiaries may make and own Investments in
connection with a Permitted Acquisition or a Permitted Portfolio
Acquisition;
(viii) Company and its Subsidiaries may make Consolidated Maintenance
Capital Expenditures permitted by subsection 7.6;
(ix) Company and its Subsidiaries may make and own other Investments
in an aggregate amount not to exceed at any time $2,500,000; and
(x) Company may make the Investments permitted under subsection
7.7(vi).
7.4 CONTINGENT OBLIGATIONS.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create or become or remain liable with respect to any
Contingent Obligation, except:
(i) Company may become and remain liable with respect to Contingent
Obligations in respect of Letters of Credit, as applicable, and
Subsidiaries of Company may become and remain liable with respect to
Contingent Obligations arising under the Subsidiary Guaranty;
(ii) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations under Interest Rate Agreements required
under subsection 6.10;
(iii) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations in respect of customary indemnification
and purchase price adjustment obligations incurred in the ordinary course
of business in connection with Asset Sales or other sales of assets;
(iv) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations under guarantees in the ordinary course
of business of the obligations of suppliers, landlords, customers,
franchisees and licensees of Company and its Subsidiaries in an aggregate
amount not to exceed at any time $2,500,000;
(v) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations under guarantees in the ordinary course
of business with respect to the performance by Company or any of its
Subsidiaries of obligations under collection contracts;
(vi) Company may become and remain liable with respect to Contingent
Obligations in respect of Earn Out Agreements in connection with Permitted
Acquisitions and Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations in respect of Forward Flow
Contracts; provided that to the extent that purchases of receivables
portfolios from a single seller (together with all Affiliates of such
seller) party to a Forward Flow Contract with Company or any of its
Subsidiaries exceed $1,250,000 in any 12-month period, any receivables
portfolio purchased during such 12-month period under a Forward Flow
Contract with such seller shall be a Qualified Loan Portfolio;
(vii) Company and its Subsidiaries, as applicable, may remain liable
with respect to Contingent Obligations described in Schedule 7.4 annexed
hereto;
(viii) Subsidiaries of Company may become and remain liable with
respect to the Subordinated Note Guaranty; and
(ix) Company and its Subsidiaries may become and remain liable with
respect to other Contingent Obligations; provided that the maximum
aggregate liability, contingent or otherwise, of Company and its
Subsidiaries in respect of all such Contingent Obligations shall at no time
exceed $2,000,000.
7.5 RESTRICTED JUNIOR PAYMENTS.
Company shall not, and shall not permit any of its respective Subsidiaries
to, directly or indirectly, declare, order, pay, make or set apart any sum for
any Restricted Junior Payment; provided that (i) Company may make scheduled
interest payments in respect of the Subordinated Notes in accordance with the
terms of the Subordinated Note Indenture; (ii) Company may make scheduled
interest and principal payments in respect of the Existing Seller Note and any
Permitted Seller Notes permitted by subsection 7.1(vii) in accordance with the
terms of the Existing Seller Note and such Permitted Seller Notes; (iii) so long
as no Event of Default or Potential Event of Default shall have occurred and be
continuing or shall be caused thereby, Company may make payments in an aggregate
amount not to exceed $2,500,000 in any Fiscal Year to the extent necessary to
repurchase shares of Company Common Stock from officers, directors or employees
of Company or any of its Subsidiaries following termination of employment of any
such officer, director or employee by reason of death, disability, retirement or
resignation or following other events customarily requiring or permitting such
repurchase, in each case in accordance with the terms of customary terms of
management and/or employee stock plans, stock subscription agreements or
shareholder agreements entered into with officers, directors or employees of
Company or any of its Subsidiaries; (iv) so long as no Event of Default or
Potential Event of Default shall have occurred and be continuing or shall be
caused thereby, Company may repurchase Company Preferred Stock and make payments
of accrued and unpaid dividends to the holders of Company Preferred Stock,
provided that in no event may Company pay any dividend on or repurchase Company
Preferred Stock unless both (x) the Leverage Ratio for the most recently ended
four-Fiscal Quarter period is less than 2.0:1.0 and (y) at least 50% of the
initial aggregate principal amount of the Term Loans has been repaid; and (v)
Company and its Subsidiaries may consummate the transactions contemplated by the
Union Acquisition Documents.
7.6 FINANCIAL COVENANTS.
A. Minimum Interest Coverage Ratio. The ratio of (i) Consolidated EBITDA to
(ii) Consolidated Interest Expense for any four-Fiscal Quarter period (each such
four-Fiscal Quarter period being a "CALCULATION PERIOD") ending June 30, 1998 or
thereafter during any of the periods set forth below shall not be less than the
correlative ratio indicated:
===================================== ==========================================
PERIOD DURING MINIMUM
WHICH CALCULATION PERIOD ENDS INTEREST COVERAGE RATIO
===================================== ==========================================
06/30/98 - 12/30/99 2.00:1.00
===================================== ==========================================
12/31/99 - 06/29/00 2.25:1.00
===================================== ==========================================
06/30/00 - 12/30/00 2.50:1.00
===================================== ==========================================
12/31/00 - 6/29/01 2.75:1.00
===================================== ==========================================
Thereafter 3.00:1.00
===================================== ==========================================
B. MAXIMUM LEVERAGE RATIO. The ratio of (i) Consolidated Total Debt as
of June 30, 1998 or the last day (any such day being a "CALCULATION DATE") of
any Fiscal Quarter ending during any of the periods set forth below to (ii)
Consolidated EBITDA for the Calculation Period ending on such Calculation Date
shall not exceed the correlative ratio indicated:
=========================================== ==========================
PERIOD DURING MAXIMUM
WHICH CALCULATION DATE OCCURS LEVERAGE
RATIO
=========================================== ==========================
=========================================== ==========================
06/30/98 - 06/29/99 5.00:1.00
=========================================== ==========================
06/30/99 - 12/30/99 4.75:1.00
=========================================== ==========================
12/31/99 - 06/29/00 4.50:1.00
=========================================== ==========================
06/30/00 - 12/30/00 4.25:1.00
=========================================== ==========================
12/31/00 - 06/29/01 4.00:1.00
=========================================== ==========================
06/30/01 - 12/30/01 3.75:1.00
=========================================== ==========================
12/31/01 - 06/29/02 3.50:1.00
=========================================== ==========================
06/30/02 - 12/30/02 3.25:1.00
=========================================== ==========================
12/31/02 - 06/29/03 3.00:1.00
=========================================== ==========================
Thereafter 2.75:1.00
=========================================== ==========================
C. MINIMUM FIXED CHARGE COVERAGE RATIO. The ratio of (i) Consolidated
EBITDA to (ii) Consolidated Fixed Charges for any Calculation Period ending
after the Closing Date shall not be less than 1.05:1.00.
D. CONSOLIDATED MAINTENANCE CAPITAL EXPENDITURES. Company shall not, and
shall not permit its Subsidiaries to, make or incur in any Fiscal Year
Consolidated Maintenance Capital Expenditures in an aggregate amount in excess
of $18,000,000 (the "MAXIMUM CONSOLIDATED MAINTENANCE CAPITAL EXPENDITURES
AMOUNT"); provided that the Maximum Consolidated Maintenance Capital
Expenditures Amount for any Fiscal Year other than Fiscal Year 1998 shall be
increased by an amount equal to the excess, if any (but in no event more than
25% of the Maximum Consolidated Maintenance Capital Expenditures Amount for the
previous Fiscal Year), of the Maximum Consolidated Maintenance Capital
Expenditures Amount for the previous Fiscal Year over the actual amount of
Consolidated Maintenance Capital Expenditures for such previous Fiscal Year; and
provided further, that immediately following any acquisition permitted under
subsection 7.7(v) or 7.7(vi), the Maximum Consolidated Maintenance Capital
Expenditures Amount for the Fiscal Year during which such acquisition occurs,
and for each Fiscal Year thereafter shall be increased, in each case, by an
amount equal to the product of (i) the Maximum Consolidated Maintenance Capital
Expenditures Amount in effect immediately prior to such acquisition multiplied
by (ii) the ratio of (a) Consolidated EBITDA attributable to the business or
assets so acquired but not attributable to any Portfolio Purchase Business so
acquired to (b) Consolidated EBITDA not attributable to the Portfolio Purchase
Business of Company and its Subsidiaries without giving effect to such
acquisition, determined in the case of clauses (a) and (b) for the four-Fiscal
Quarter period most recently ended prior to such acquisition.
E. Certain Calculations.
(i) Notwithstanding any provision of this Agreement to the contrary,
(x) for purposes of calculating Consolidated EBITDA for any period
including the third and/or fourth Fiscal Quarters of 1997, Consolidated
EBITDA shall be deemed to be $29,100,000 for the third Fiscal Quarter of
1997 and $24,600,000 for the fourth Fiscal Quarter of 1997, (y) subject to
the provisions of the preceding clause (x), for purposes of calculations
under subsection 7.6, calculations shall be made as if the Union Merger and
related transactions (including, without limitation, borrowings of all the
Tranche C Term Loans) had been consummated as of January 1, 1998, and (z),
Consolidated Interest Expense and Consolidated Fixed Charges shall be
calculated prior to December 31, 1998 in accordance with Schedule 7.6E.
(ii) With respect to any period during which new Subsidiaries, assets
or businesses are acquired pursuant to subsection 7.7(v) or 7.7(vi), for
purposes of determining compliance with the financial covenants set forth
in this subsection 7.6, Consolidated EBITDA and Consolidated Interest
Expense shall be calculated with respect to such periods and such
Subsidiaries, assets or businesses on a pro forma basis (including, except
with respect to the Union Acquisition, pro forma adjustments arising out of
events which are directly attributable to a specific transaction, are
factually supportable and are expected to have a continuing impact, in each
case determined on a basis consistent with Article 11 of Regulation S-X
promulgated under the Securities Act and as interpreted by the staff of the
Securities and Exchange Commission prior to December 1996, which would
include cost savings resulting from head count reduction, closure of
facilities and similar restructuring charges, which pro forma adjustments
shall be certified by the chief financial officer of Company) using the
historical financial statements of all entities or assets so acquired or to
be acquired and the consolidated financial statements of Company and its
Subsidiaries which shall be reformulated (i) as if such acquisition, and
any acquisitions which have been consummated during such period, and any
Indebtedness or other liabilities incurred in connection with any such
acquisition had been consummated or incurred at the beginning of such
period (and assuming that such Indebtedness bears interest during any
portion of the applicable measurement period prior to the relevant
acquisition at the weighted average of the interest rates applicable to
outstanding Loans during such period), and (ii) otherwise in conformity
with certain procedures to be agreed upon between Co-Administrative Agents
and Company, all such calculations to be in form and substance satisfactory
to Co-Administrative Agents.
7.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES.
Company shall not, and shall not permit any of its Subsidiaries to, alter
the corporate, capital or legal structure of Company or any of its Subsidiaries,
create any new Subsidiaries or enter into any transaction of merger or
consolidation, or liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, sub-lease, transfer or
otherwise dispose of, in one transaction or a series of transactions, all or any
substantial part of its business, property or fixed assets, whether now owned or
hereafter acquired, or acquire by purchase or otherwise any part of the
business, property or fixed assets of, or stock or other evidence of beneficial
ownership of, any Person, except:
(i) any Subsidiary of Company may be merged with or into Company or
any domestic Wholly Owned Subsidiary of Company, or be liquidated, wound up
or dissolved, or all or any substantial part of its business, property or
assets may be conveyed, sold, leased, transferred or otherwise disposed of,
in one transaction or a series of transactions, to Company or any domestic
Wholly Owned Subsidiary of Company; provided that, in the case of such a
merger, Company or such Wholly Owned Subsidiary shall be the continuing or
surviving corporation;
(ii) Company and its Subsidiaries may acquire inventory (other than
receivables portfolios), equipment and other assets in the ordinary course
of business;
(iii) Company and its Subsidiaries may sell or otherwise dispose of
assets in transactions that do not constitute Asset Sales; provided that
the consideration received for such assets shall be in an amount at least
equal to the fair market value thereof (determined in good faith by the
board of directors of Company);
(iv) Company and its Subsidiaries may make any Asset Sale of assets
that have, in the aggregate, a fair market value (determined in good faith
by the board of directors of Company) not in excess of 20% of Consolidated
EBITDA for the four-Fiscal Quarter period most recently ended prior to such
Asset Sale; provided that (x) the consideration received for such assets
shall be in an amount at least equal to the fair market value thereof
(determined in good faith by the board of directors of Company); (y) not
less than 80% of the consideration received therefor shall be cash; and (z)
the proceeds of such Asset Sales shall be applied as required by subsection
2.4B(iii)(a);
(v) Company may make acquisitions of receivables portfolios and other
assets and businesses (including acquisitions of the capital stock of
another Person), provided that:
(a) in the event that the aggregate amount of all such
acquisitions in any Fiscal Year would exceed $5,000,000 after giving
effect to any such proposed acquisition, (x) the Interest Coverage
Ratio (calculated on a pro forma basis giving effect to the proposed
acquisition) shall not be less than the ratio set forth in subsection
7.6A applicable at the time of such acquisition and (y) the Leverage
Ratio (calculated on a pro forma basis giving effect to the proposed
acquisition) shall not be greater than the ratio set forth in
subsection 7.6B applicable at the time of such acquisition;
(b) the aggregate amount expended for Permitted Acquisitions
(other than pursuant to subsection 7.7(vi)) after the Effective Date
shall not exceed $60,000,000;
(c) any receivables portfolio acquired shall be a Qualified Loan
Portfolio;
(d) the aggregate amount expended for Permitted Portfolio
Acquisitions during any Fiscal Year together with the aggregate amount
of all Investments made pursuant to subsection 7.3(v)(c) during such
Fiscal Year shall not exceed $60,000,000;
(e) that portion of Consolidated EBITDA attributable to any
assets so acquired in any single acquisition or series of related
acquisitions, as projected by Company for the twelve-month period
immediately following the date of such acquisition or the date of the
first of such series of related acquisitions, as the case may be,
shall not exceed 20% of Consolidated EBITDA for the four-Fiscal
Quarter period most recently ended prior to the date of such
acquisition, and Company shall have delivered an Officer's Certificate
to Co-Administrative Agents (together with supporting information
therefor) to the foregoing effect; and
(f) no Event of Default or Potential Event of Default shall have
occurred and be continuing at the time of such acquisition or shall be
caused thereby; and
(vi) Company may consummate the Tender Offer on the Effective Date and
the Union Merger on the Delayed-Draw Term Loan Funding Date.
Notwithstanding the foregoing, prior to the Union Merger Date, Merger Sub may
directly or indirectly sell, assign, pledge or encumber any shares of Union
Common Stock owned by it for cash and for fair market value so long as the
proceeds thereof are held as Cash or Cash Equivalents.
7.8 SALES AND LEASE-BACKS.
Except as set forth in Schedule 7.8, Company shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, become or remain
liable as lessee or as a guarantor or other surety with respect to any lease,
whether an Operating Lease or a Capital Lease, of any property (whether real,
personal or mixed), whether now owned or hereafter acquired, (i) which Company
or any of its Subsidiaries has sold or transferred or is to sell or transfer to
any other Person (other than Company or any of its Subsidiaries) or (ii) which
Company or any of its Subsidiaries intends to use for substantially the same
purpose as any other property which has been or is to be sold or transferred by
Company or any of its Subsidiaries to any Person (other than Company or any of
its Subsidiaries) in connection with such lease.
7.9 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or exchange of any
property or the rendering of any service) with any holder of 5% or more of any
class of equity Securities of Company or with any Affiliate of Company or of any
such holder, on terms that are less favorable to Company or that Subsidiary, as
the case may be, than those that might be obtained at the time from Persons who
are not such a holder or Affiliate; provided that the foregoing restriction
shall not apply to (i) any transaction between Company and any of its Wholly
Owned Subsidiaries or between any of its Wholly Owned Subsidiaries, (ii)
reasonable and customary fees paid to members of the boards of directors of
Company and its Subsidiaries, (iii) fees, expenses and other amounts payable to
the MDC Entities on the Closing Date, the First Amendment Date and/or the
Effective Date, and (iv) the Management Fees.
7.10 DISPOSAL OF SUBSIDIARY STOCK.
Company shall not:
(i) directly or indirectly sell, assign, pledge or otherwise encumber
or dispose of any shares of capital stock or other equity Securities of any
of its Subsidiaries, except as permitted under this Agreement or the
Collateral Documents or to qualify directors if required by applicable law;
or
(ii) permit any of its Subsidiaries directly or indirectly to sell,
assign, pledge or otherwise encumber or dispose of any shares of capital
stock or other equity Securities of any of its Subsidiaries (including such
Subsidiary), except as permitted under this Agreement or the Collateral
Documents or to Company, another wholly-owned Subsidiary of Company, or to
qualify directors if required by applicable law.
Notwithstanding the foregoing, prior to the Union Merger Date, Merger Sub may
directly or indirectly sell, assign, pledge or encumber shares of Union Common
Stock owned by it for cash and for fair market value.
7.11 CONDUCT OF BUSINESS.
Company shall not, and shall not permit any of its Subsidiaries to, engage
in any business other than (i) the businesses engaged in by Company and its
Subsidiaries on the Effective Date (after giving effect to the Union
Acquisition) and similar or related businesses and (ii) such other lines of
business as may be consented to by Co-Administrative Agents and Requisite
Lenders.
7.12 AMENDMENTS OR WAIVERS OF CERTAIN RELATED AGREEMENTS; AMENDMENTS OF
DOCUMENTS RELATING TO SUBORDINATED INDEBTEDNESS; DESIGNATION OF "DESIGNATED
SENIOR DEBT"; PREFERRED STOCK.
A. AMENDMENTS OR WAIVERS OF CERTAIN RELATED AGREEMENTS. Neither Company nor
any of its Subsidiaries will agree to any material amendment to, or waive any of
its material rights under, any Related Agreement (other than any Related
Agreement evidencing or governing any Subordinated Indebtedness), the MDC
Advisory Services Agreement or the Stockholders Agreement after the Effective
Date if such amendment or waiver would be adverse to Lenders without in each
case obtaining the prior written consent of Requisite Lenders to such amendment
or waiver; provided, however, that if certain performance criteria determined by
the Board of Directors of Company are met from time to time, Company may amend
the MDC Advisory Services Agreement without the consent of Lenders to provide
for an increase or increases in the annual Management Fee payable thereunder,
provided that such Management Fee shall not exceed $1,000,000 annually.
B. AMENDMENTS OF DOCUMENTS RELATING TO SUBORDINATED INDEBTEDNESS. Company
shall not, and shall not permit any of its Subsidiaries to, amend or otherwise
change the terms of any Subordinated Indebtedness or Subordinated Note Document,
or make any payment consistent with an amendment thereof or change thereto, if
the effect of such amendment or change is to increase the interest rate on such
Subordinated Indebtedness, change (to earlier dates) any dates upon which
payments of principal or interest are due thereon, change any event of default
or condition to an event of default with respect thereto (other than to
eliminate any such event of default or increase any grace period related
thereto), change the redemption, prepayment or defeasance provisions thereof,
change the subordination provisions thereof (or of any guaranty thereof), or
change any collateral therefor (other than to release such collateral), or if
the effect of such amendment or change, together with all other amendments or
changes made, is to increase materially the obligations of the obligor
thereunder or to confer any additional rights on the holders of such
Subordinated Indebtedness (or trustee or other representative on their behalf)
which would be adverse to Company or Lenders.
C. DESIGNATION OF "DESIGNATED SENIOR DEBT". Company shall not designate any
Indebtedness as "Designated Senior Debt" (as defined in the Subordinated Note
Indenture) for purposes of the Subordinated Note Indenture without the prior
written consent of Requisite Lenders.
D. PREFERRED STOCK. Without the prior written approval of Requisite
Lenders, Company shall not amend, restate, supplement or otherwise modify its
Articles of Incorporation if the effect of such amendment, restatement,
supplement or modification is to (i) increase the dividend rate payable on, or
change the redemption provisions of, the Company Preferred Stock, (ii) together
with all other amendments or changes made, increase materially the obligations
of Company to the holders of the Company Preferred Stock, (iii) confer any
additional rights on the holders of the Company Preferred Stock which would be
adverse to Company or Lenders, or (iv) provide for the issuance of any preferred
stock of Company in addition to the Company Preferred Stock or the filing or
amendment of any certificate of designation with respect thereto.
7.13 FISCAL YEAR.
Company shall not change its Fiscal Year-end from December 31.
SECTION 8.
EVENTS OF DEFAULT
IF any of the following conditions or events ("EVENTS OF DEFAULT") shall
occur:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by Company to pay any installment of principal of any Loan when
due, whether at stated maturity, by acceleration, by notice of prepayment or
otherwise; failure by Company to pay when due any amount payable to an Issuing
Lender in reimbursement of any drawing honored or payment made under a Letter of
Credit; or failure by Company to pay any interest on any Loan or any fee or any
other amount due under this Agreement within five days after the date due; or
8.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of Company or any of its Subsidiaries to pay when due (a) any
principal of or interest on any Indebtedness (other than Indebtedness referred
to in subsection 8.1) in an individual principal amount of $2,500,000 or more or
any items of Indebtedness with an aggregate principal amount of $5,000,000 or
more or (b) any Contingent Obligation in an individual principal amount of
$2,500,000 or more or any Contingent Obligations with an aggregate principal
amount of $5,000,000 or more, in each case beyond the end of any grace period
provided therefor; or (ii) breach or default by Company or any of its
Subsidiaries with respect to any other material term of (a) any evidence of any
Indebtedness in an individual principal amount of $2,500,000 or more or any
items of Indebtedness with an aggregate principal amount of $5,000,000 or more
or any Contingent Obligation in an individual principal amount of $2,500,000 or
more or any Contingent Obligations with an aggregate principal amount of
$5,000,000 or more or (b) any loan agreement, mortgage, indenture or other
agreement relating to such Indebtedness or Contingent Obligation(s), if in any
case under this clause (ii) the effect of such breach or default is to cause, or
to permit the holder or holders of that Indebtedness or Contingent Obligation(s)
(or a trustee on behalf of such holder or holders) to cause, that Indebtedness
or Contingent Obligation(s) to become or be declared due and payable prior to
its stated maturity or the stated maturity of any underlying obligation, as the
case may be (upon the giving or receiving of notice, lapse of time, both, or
otherwise); or
8.3 BREACH OF CERTAIN COVENANTS.
Failure of Company to perform or comply with any term or condition
contained in subsection 2.4, 2.5 or 6.2 or Section 7 of this Agreement; or
8.4 BREACH OF WARRANTY.
Any material representation, warranty, certification or other statement
made by Company or any of its Subsidiaries in any Loan Document or in any
statement or certificate at any time given by Company or any of its Subsidiaries
in writing pursuant hereto or thereto or in connection herewith or therewith
shall be false in any material respect on the date as of which made; or
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Any Loan Party shall default in the performance of or compliance with any
term contained in this Agreement or any of the other Loan Documents, other than
any such term referred to in any other subsection of this Section 8, and such
default shall not have been remedied or waived within 30 days after the earlier
of (i) an officer of Company becoming aware of such default or (ii) receipt by
Company of notice from any Agent or Lender of such default; or
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter a decree or
order for relief in respect of Company or any of its Subsidiaries (other than
Immaterial Subsidiaries) in an involuntary case under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, which decree or order is not stayed; or any other similar
relief shall be granted under any applicable federal or state law; or (ii) an
involuntary case shall be commenced against Company or any of its Subsidiaries
(other than Immaterial Subsidiaries) under the Bankruptcy Code or under any
other applicable bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over Company or any of its Subsidiaries
(other than Immaterial Subsidiaries), or over all or a substantial part of its
property, shall have been entered; or there shall have occurred the involuntary
appointment of an interim receiver, trustee or other custodian of Company or any
of its Subsidiaries (other than Immaterial Subsidiaries) for all or a
substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of the
property of Company or any of its Subsidiaries (other than Immaterial
Subsidiaries), and any such event described in this clause (ii) shall continue
for 60 days unless dismissed, bonded or discharged; or
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Company or any of its Subsidiaries (other than Immaterial Subsidiaries)
shall have an order for relief entered with respect to it or commence a
voluntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, or shall
consent to the entry of an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such law, or
shall consent to the appointment of or taking possession by a receiver, trustee
or other custodian for all or a substantial part of its property; or Company or
any of its Subsidiaries (other than Immaterial Subsidiaries) shall make any
assignment for the benefit of creditors; or (ii) Company or any of its
Subsidiaries (other than Immaterial Subsidiaries) shall be unable, or shall fail
generally, or shall admit in writing its inability, to pay its debts as such
debts become due; or the Board of Directors of Company or any of its
Subsidiaries (other than Immaterial Subsidiaries) (or any committee thereof)
shall adopt any resolution or otherwise authorize any action to approve any of
the actions referred to in clause (i) above or this clause (ii); or
8.8 JUDGMENTS AND ATTACHMENTS.
(i) Any money judgment, writ or warrant of attachment or similar process
involving (a) in any individual case an amount in excess of $2,500,000 or (b) in
the aggregate at any time an amount in excess of $5,000,000 (in either case not
adequately covered by insurance as to which a solvent and unaffiliated insurance
company has acknowledged coverage) shall be entered or filed against Company or
any of its Subsidiaries or any of their respective assets and shall remain
undischarged, unvacated, unbonded or unstayed for a period of 60 days (or in any
event later than five days prior to the date of any proposed sale thereunder);
or (ii) any money judgment shall be rendered against Company or any of its
Subsidiaries or any of their respective assets, or any settlement shall require
payment by, Company or any of its Subsidiaries in any individual case in an
amount in excess of $12,000,000; (iii) any of the following shall occur twice or
both of the following shall occur: (a) a money judgment in excess of $5,000,000
in an individual case shall be rendered against Company or any of its
Subsidiaries or any of their respective assets, or (b) a settlement shall
require payment by Company or any of its Subsidiaries in excess of $5,000,000 in
an individual case; provided, however, that the amount of any money judgment or
required settlement under the preceding clauses (ii) and (iii) shall not include
for the purposes of such clauses any portion thereof which has been paid for by
insurance or which is adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage; provided further that
for purposes of calculating payments of amounts under this subsection 8.8, no
payment shall be deemed to have been made hereunder to the extent that such
payment represents an amount reflected as a reserve in the Company's Projections
for potential liabilities arising out of events occurring prior to the Effective
Date; or
8.9 DISSOLUTION.
Any order, judgment or decree shall be entered against Company or any of
its Subsidiaries decreeing the dissolution or split up of Company or that
Subsidiary and such order shall remain undischarged or unstayed for a period in
excess of 30 days; or
8.10 EMPLOYEE BENEFIT PLANS.
There shall occur one or more ERISA Events which individually or in the
aggregate results in a Material Adverse Effect; or there shall exist an Unfunded
Current Liability, individually or in the aggregate for all Pension Plans
(excluding for purposes of such computation any Pension Plans with respect to
which there is no Unfunded Current Liability), which would have a Material
Adverse Effect; or
8.11 CHANGE IN CONTROL.
(i) Prior to the consummation of any initial public offering of Company
Common Stock, (a) the MDC Entities shall at any time not own, in the aggregate,
at least 51% of the combined voting power of Company voting Securities; or (b)
any Person (other than the MDC Entities), including a "group" (within the
meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) which includes such
Person, shall purchase or otherwise acquire, directly or indirectly, beneficial
ownership of Securities of Company and, as a result of such purchase or
acquisition, any Person (together with its associates and Affiliates), shall
directly or indirectly beneficially own in the aggregate Securities representing
more than 35% of the combined voting power of Company voting Securities; or (ii)
at any time thereafter, (a) the MDC Entities together shall own, directly or
indirectly, in the aggregate, a lesser percentage of the combined voting power
of Company voting Securities than any other holder, including a "group" (within
the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) which includes
such holder, of such voting Securities; (b) a majority of the members of the
Board of Directors of Company shall not be Continuing Directors; or (c) any
Person (other than the MDC Entities), including a "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Exchange Act) which includes such Person,
shall purchase or otherwise acquire, directly or indirectly, beneficial
ownership of Securities of Company and, as a result of such purchase or
acquisition, any Person (together with its associates and Affiliates), shall
directly or indirectly beneficially own in the aggregate Securities representing
more than 25% of the combined voting power of Company voting Securities; or
8.12 INVALIDITY OF GUARANTIES.
At any time after the execution and delivery thereof, any Guaranty of the
Obligations of Company, for any reason other than the satisfaction in full of
all Obligations, ceases to be in full force and effect or is declared to be null
and void (except with respect to the obligations thereunder of Immaterial
Subsidiaries of Company) or any Loan Party (other than Immaterial Subsidiaries
of Company) denies in writing that it has any further liability, including,
without limitation, with respect to future advances by Lenders, under any Loan
Document to which it is a party; or
8.13 FAILURE OF SECURITY.
Any Collateral Document shall, at any time, cease to be in full force and
effect (other than by reason of a release of Collateral thereunder in accordance
with the terms hereof or thereof, the satisfaction in full of the Obligations or
any other termination of such Collateral Document in accordance with the terms
hereof or thereof) or shall be declared null and void; or the validity or
enforceability thereof shall be contested in writing by any Loan Party; or Agent
shall not have or shall cease to have a valid security interest in any
Collateral purported to be covered thereby, perfected and with the priority
required by the relevant Collateral Document, for any reason other than the
failure of Agents or any Lender to take any action within its control, subject
only to Liens permitted under the applicable Collateral Documents; or
8.14 FAILURE TO CONSUMMATE ACQUISITIONS.
The Union Acquisition shall not be consummated in accordance with this
Agreement and the applicable Related Agreements concurrently with the making of
the Tranche C Term Loans, or the Union Merger shall not be consummated within
120 days following the Effective Date in accordance with this Agreement and the
applicable Related Agreements concurrently with the making of the Delayed-Draw
Term Loans, or the Payco Acquisition, the Accelerated Acquisition, the NSA
Acquisition, the Union Acquisition or the Union Merger shall be unwound,
reversed or otherwise rescinded in whole or in part for any reason;
8.15 DEFAULT UNDER SUBORDINATION PROVISIONS.
Company or any guarantor of Subordinated Indebtedness shall fail to comply
with the subordination provisions contained in the Subordinated Note Indenture
or any other instrument, indenture or agreement pursuant to which such
Subordinated Indebtedness is issued;
THEN (i) upon the occurrence of any Event of Default described in subsection 8.6
or 8.7, each of (a) the unpaid principal amount of and accrued interest on the
Loans, (b) an amount equal to the maximum amount that may at any time be drawn
under all Letters of Credit then outstanding (whether or not any beneficiary
under any such Letter of Credit shall have presented, or shall be entitled at
such time to present, the drafts or other documents or certificates required to
draw under such Letter of Credit) and (c) all other Obligations shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by Company, and the obligation of each Lender to make any Loan, the
obligation of Chase Co-Administrative Agent to issue any Letter of Credit and
the right of any Lender to issue any Letter of Credit hereunder shall thereupon
terminate, and (ii) upon the occurrence and during the continuation of any other
Event of Default, Chase Co-Administrative Agent shall, upon the written request
of Requisite Lenders, by written notice to Company, declare all or any portion
of the amounts described in clauses (a) through (c) above to be, and the same
shall forthwith become, immediately due and payable, and the obligation of each
Lender to make any Loan, the obligation of Chase Co-Administrative Agent to
issue any Letter of Credit and the right of any Lender to issue any Letter of
Credit hereunder shall thereupon terminate; provided that the foregoing shall
not affect in any way the obligations of Lenders under subsection 3.3C(i) or the
obligations of Lenders to purchase participations in any unpaid Swing Line Loans
as provided in subsection 2.1A(iv).
Any amounts described in clause (b) above, when received by Chase
Co-Administrative Agent, shall be held by Chase Co-Administrative Agent pursuant
to the terms of the Collateral Account Agreement and shall be applied as therein
provided.
Notwithstanding anything contained in the second preceding paragraph, if at
any time within 60 days after an acceleration of the Loans pursuant to such
paragraph Company shall pay all arrears of interest and all payments on account
of principal which shall have become due otherwise than as a result of such
acceleration (with interest on principal and, to the extent permitted by law, on
overdue interest, at the rates specified in this Agreement) and all Events of
Default and Potential Events of Default (other than non-payment of the principal
of and accrued interest on the Loans, in each case which is due and payable
solely by virtue of acceleration) shall be remedied or waived pursuant to
subsection 10.6, then Requisite Lenders, by written notice to Company, may at
their option rescind and annul such acceleration and its consequences; but such
action shall not affect any subsequent Event of Default or Potential Event of
Default or impair any right consequent thereon. The provisions of this paragraph
are intended merely to bind Lenders to a decision which may be made at the
election of Requisite Lenders and are not intended to benefit Company and do not
grant Company the right to require Lenders to rescind or annul any acceleration
hereunder or preclude Agents or Lenders from exercising any of the rights or
remedies available to them under any of the Loan Documents, even if the
conditions set forth in this paragraph are met.
SECTION 9.
AGENTS
9.1 APPOINTMENT.
A. Each of GSCP and Chase is hereby appointed a Co-Administrative Agent
hereunder and under the other Loan Documents and each Lender hereby authorizes
each Co-Administrative Agent to act as its agent in accordance with the terms of
this Agreement and the other Loan Documents. Each of GSCP and CSI is hereby
appointed an Arranging Agent hereunder and under the other Loan Documents and
each Lender hereby authorizes each Arranging Agent to act as its agent in
accordance with the terms of this Agreement and the other Loan Documents.
SunTrust is hereby appointed Collateral Agent hereunder and under the other Loan
Documents and each Lender hereby authorizes Collateral Agent to act as its agent
in accordance with the terms of this Agreement and the other Loan Documents.
Each Agent agrees to act upon the express conditions contained in this Agreement
and the other Loan Documents, as applicable. The provisions of this Section 9
are solely for the benefit of Agents and Lenders and Company shall have no
rights as a third party beneficiary of any of the provisions thereof. In
performing its functions and duties under this Agreement, each Agent shall act
solely as an agent of Lenders and does not assume and shall not be deemed to
have assumed any obligation towards or relationship of agency or trust with or
for Company or any of its Subsidiaries. Upon the Effective Date, all obligations
of Arranging Agents hereunder shall terminate.
B. APPOINTMENT OF SUPPLEMENTAL COLLATERAL AGENTS. It is the purpose of this
Agreement and the other Loan Documents that there shall be no violation of any
law of any jurisdiction denying or restricting the right of banking corporations
or associations to transact business as agent or trustee in such jurisdiction.
It is recognized that in case of litigation under this Agreement or any of the
other Loan Documents, and in particular in case of the enforcement of any of the
Loan Documents, or in case Chase Co-Administrative Agent deems that by reason of
any present or future law of any jurisdiction Collateral Agent may not exercise
any of the rights, powers or remedies granted herein or in any of the other Loan
Documents or take any other action which may be desirable or necessary in
connection therewith, it may be necessary that Chase Co-Administrative Agent
appoint an additional individual or institution as a separate trustee,
co-trustee, collateral agent or collateral co-agent (any such additional
individual or institution being referred to herein individually as a
"SUPPLEMENTAL COLLATERAL AGENT" and collectively as "SUPPLEMENTAL COLLATERAL
AGENTS").
In the event that Chase Co-Administrative Agent appoints a Supplemental
Collateral Agent with respect to any Collateral, (i) each and every right,
power, privilege or duty expressed or intended by this Agreement or any of the
other Loan Documents to be exercised by or vested in or conveyed to Chase
Co-Administrative Agent with respect to such Collateral shall be exercisable by
and vest in such Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents and necessary to the exercise or performance
thereof by such Supplemental Collateral Agent shall run to and be enforceable by
either Agent or such Supplemental Collateral Agent, and (ii) the provisions of
this Section 9 and of subsections 10.2 and 10.3 that refer to Collateral Agent
shall inure to the benefit of such Supplemental Collateral Agent and all
references therein to Collateral Agent shall be deemed to be references to
Collateral Agent and/or such Supplemental Collateral Agent, as the context may
require.
Should any instrument in writing from Company or any other Loan Party be
required by any Supplemental Collateral Agent so appointed by Chase
Co-Administrative Agent for more fully and certainly vesting in and confirming
to him or it such rights, powers, privileges and duties, Company shall, or shall
cause such Loan Party to, execute, acknowledge and deliver any and all such
instruments promptly upon request by Chase Co-Administrative Agent. In case any
Supplemental Collateral Agent, or a successor thereto, shall die, become
incapable of acting, resign or be removed, all the rights, powers, privileges
and duties of such Supplemental Collateral Agent, to the extent permitted by
law, shall vest in and be exercised by Collateral Agent until the appointment of
a new Supplemental Collateral Agent.
9.2 POWERS; GENERAL IMMUNITY.
A. DUTIES SPECIFIED. Each Lender irrevocably authorizes each Agent to take
such action on such Lender's behalf and to exercise such powers hereunder and
under the other Loan Documents as are specifically delegated to such Agent by
the terms hereof and thereof, together with such powers as are reasonably
incidental thereto. Each Agent shall have only those duties and responsibilities
that are expressly specified in this Agreement and the other Loan Documents, and
it may perform such duties by or through its agents or employees. No Agent shall
have, by reason of this Agreement or any of the other Loan Documents, a
fiduciary relationship in respect of any Lender; and nothing in this Agreement
or any of the other Loan Documents, expressed or implied, is intended to or
shall be so construed as to impose upon any Agent any obligations in respect of
this Agreement or any of the other Loan Documents except as expressly set forth
herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. No Agent shall be responsible to
any Lender for the execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement or any other
Loan Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statement or in any
financial or other statements, instruments, reports or certificates or any other
documents furnished by any Agent to Lenders or by or on behalf of Company and/or
its Subsidiaries to any Agent or any Lender in connection with the Loan
Documents and the transactions contemplated thereby or for the financial
condition or business affairs of Company or any other Person liable for the
payment of any Obligations, nor shall any Agent be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Loan Documents or as
to the use of the proceeds of the Loans or the use of the Letters of Credit or
as to the existence or possible existence of any Event of Default or Potential
Event of Default. Anything contained in this Agreement to the contrary
notwithstanding, neither Co-Administrative Agent shall have any liability
arising from confirmations of the amount of outstanding Loans or the Total
Utilization of Revolving Loan Commitments or the component amounts thereof.
C. EXCULPATORY PROVISIONS. Neither any Agent nor any of such Agent's
respective officers, directors, employees or agents shall be liable to Lenders
for any action taken or omitted by such Agent under or in connection with any of
the Loan Documents except to the extent caused by such Agent's gross negligence
or willful misconduct. If any Agent shall request instructions from Lenders with
respect to any act or action (including the failure to take an action) in
connection with this Agreement or any of the other Loan Documents, such Agent
shall be entitled to refrain from such act or taking such action unless and
until such Agent shall have received instructions from Requisite Lenders (or
such other Lenders as may be required to give such instructions under subsection
10.6). Without prejudice to the generality of the foregoing, (i) such Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
communication, instrument or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and shall be
entitled to rely and shall be protected in relying on opinions and judgments of
attorneys (who may be attorneys for Company and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii) no Lender shall
have any right of action whatsoever against such Agent as a result of such Agent
acting or (where so instructed) refraining from acting under this Agreement or
any of the other Loan Documents in accordance with the instructions of Requisite
Lenders (or such other Lenders as may be required to give such instructions
under subsection 10.6). Such Agent shall be entitled to refrain from exercising
any power, discretion or authority vested in it under this Agreement or any of
the other Loan Documents unless and until it has obtained the instructions of
Requisite Lenders (or such other Lenders as may be required to give such
instructions under subsection 10.6).
D. AGENTS ENTITLED TO ACT AS LENDER. The agency hereby created shall in no
way impair or affect any of the rights and powers of, or impose any duties or
obligations upon, any Agent in its individual capacity as a Lender hereunder.
With respect to its participation in the Loans and the Letters of Credit, each
Agent shall have the same rights and powers hereunder as any other Lender and
may exercise the same as though it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" or "Lenders" or any similar
term shall, unless the context clearly otherwise indicates, include such Agent
in its individual capacity. Each Agent and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of banking, trust,
financial advisory or other business with Company or any of its Affiliates as if
it were not performing the duties specified herein, and may accept fees and
other consideration from Company and/or its Subsidiaries for services in
connection with this Agreement and otherwise without having to account for the
same to Lenders.
9.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR APPRAISAL OF
CREDITWORTHINESS.
Each Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of Company and its
Subsidiaries in connection with the making of the Loans and the issuance of
Letters of Credit hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Company and its Subsidiaries. No Agent
shall have any duty or responsibility, either initially or on a continuing
basis, to make any such investigation or any such appraisal on behalf of Lenders
or to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter, and no Agent shall have any responsibility with
respect to the accuracy of or the completeness of any information provided to
Lenders.
9.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify each Agent, to the extent that such Agent shall not have been
reimbursed by Company, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including, without limitation, counsel fees and disbursements) or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by or
asserted against such Agent in performing its duties hereunder or under the
other Loan Documents or otherwise in its capacity as such Agent in any way
relating to or arising out of this Agreement or the other Loan Documents;
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct.
9.5 SUCCESSOR AGENTS AND SWING LINE LENDER.
A. SUCCESSOR AGENTS. Any Agent may resign at any time by giving 30 days'
prior written notice thereof to the other Agents, Lenders and Company, and any
Agent may be removed at any time with or without cause by an instrument or
concurrent instruments in writing delivered to Company and Co-Administrative
Agents and signed by Requisite Lenders. Upon any such notice of resignation or
any such removal, Requisite Lenders shall have the right, upon five Business
Days' notice to Company, to appoint a successor Agent. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, that successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Agent and the retiring or
removed Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring or removed Agent's resignation or removal
hereunder as Agent, the provisions of this Section 9 shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Agent under
this Agreement.
B. SUCCESSOR SWING LINE LENDER. Any resignation or removal of Chase
Co-Administrative Agent pursuant to subsection 9.5A shall also constitute the
resignation or removal of Chase or its successor as Swing Line Lender, and any
successor Chase Co-Administrative Agent appointed pursuant to subsection 9.5A
shall, upon its acceptance of such appointment, become the successor Swing Line
Lender for all purposes hereunder. In such event (i) Company shall prepay any
outstanding Swing Line Loans made by the retiring or removed Chase
Co-Administrative Agent in its capacity as Swing Line Lender, (ii) upon such
prepayment, the retiring or removed Chase Co-Administrative Agent and Swing Line
Lender shall surrender the Swing Line Note held by it to Company for
cancellation, and (iii) Company shall issue a new Swing Line Note to the
successor Chase Co-Administrative Agent and Swing Line Lender substantially in
the form of Exhibit VI annexed hereto, in the principal amount of the Swing Line
Loan Commitment then in effect and with other appropriate insertions.
9.6 COLLATERAL DOCUMENTS.
Each Lender and Agent hereby further authorizes Collateral Agent to enter
into each Collateral Document as secured party on behalf of and for the benefit
of Agents and Lenders and agrees to be bound by the terms of each Collateral
Document; provided that Collateral Agent shall not enter into or consent to any
amendment, modification, termination or waiver of any provision contained in any
Collateral Document without the prior consent of Requisite Lenders (or, if
required pursuant to subsection 10.6, all Lenders); provided further, however,
that, without further written consent or authorization from Requisite Lenders,
Collateral Agent may execute any documents or instruments necessary to effect
the release of any asset constituting Collateral from the Lien of the applicable
Collateral Document in the event that such asset is sold or otherwise disposed
of in a transaction effected in accordance with subsection 7.7. Anything
contained in any of the Loan Documents to the contrary notwithstanding, each
Lender agrees that no Lender shall have any right individually to realize upon
any of the Collateral under any Collateral Document (including, without
limitation, through the exercise of a right of set-off against call deposits of
such Lender in which any funds on deposit in the Collateral Account may from
time to time be invested), it being understood and agreed that all rights and
remedies under the Collateral Documents may be exercised solely by Collateral
Agent for the benefit of Lenders in accordance with the terms thereof.
SECTION 10.
MISCELLANEOUS
10.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS, LETTERS OF CREDIT.
A. GENERAL. Subject to subsection 10.1B, each Lender shall have the right
at any time to (i) sell, assign, transfer or negotiate to any Eligible Assignee,
or (ii) sell participations to any Person in, all or any part of its Commitments
(together with its Letters of Credit or participations therein made or arising
pursuant to its Revolving Loan Commitment) or any Loan or Loans made by it or
any other interest herein or in any other Obligations owed to it; provided that
no such sale, assignment, transfer or participation shall, without the consent
of Company, require Company to file a registration statement with the Securities
and Exchange Commission or apply to qualify such sale, assignment, transfer or
participation under the securities laws of any state; provided further, that no
such sale, assignment or transfer described in clause (i) above shall be
effective unless and until an Assignment Agreement effecting such sale,
assignment or transfer shall have been accepted by Chase Co-Administrative Agent
and recorded in the Register as provided in subsection 10.1B(ii); provided,
further that no such sale, assignment, transfer or participation of any Letter
of Credit or any participation therein may be made separately from a sale,
assignment, transfer or participation of a corresponding interest in the
Revolving Loan Commitment and the Revolving Loans of the Lender effecting such
sale, assignment, transfer or participation; and provided further that, anything
contained herein to the contrary notwithstanding, the Swing Line Loan Commitment
and the Swing Line Loans of Swing Line Lender may not be sold, assigned or
transferred as described in clause (i) above to any Person other than a
successor Chase Co-Administrative Agent and Swing Line Lender to the extent
contemplated by subsection 9.5. Except as otherwise provided in this subsection
10.1, no Lender shall, as between Company and such Lender, be relieved of any of
its obligations hereunder as a result of any sale, assignment, transfer or
negotiation of, or any granting of participations in, all or any part of its
Commitments or the Loans, the Letters of Credit or participations therein or the
other Obligations owed to such Lender.
B. ASSIGNMENTS.
(i) Amounts and Terms of Assignments. Each Commitment, Loan, Letter of
Credit, or participation therein or other Obligation may (a) be assigned in
any amount to another Lender who is a Non-Defaulting Lender, or to an
Affiliate of the assigning Lender or another Lender who, in either such
case, is a Non-Defaulting Lender, with the consent of Co-Administrative
Agents (which consent shall not be unreasonably withheld) and the giving of
notice to Company; provided that, after giving effect to a proposed
assignment to another Lender, the assigning Lender shall have an aggregate
Commitment of at least $5,000,000 unless the proposed assignment
constitutes the aggregate amount of the Commitments, Loans, Letters of
Credit, and participations therein and other Obligations of the assigning
Lender, or (b) be assigned in an aggregate amount of not less than
$5,000,000 (or such lesser amount as shall constitute the aggregate amount
of the Commitments, Loans, Letters of Credit, and participations therein
and other Obligations of the assigning Lender) to any other Eligible
Assignee with the consent of Co-Administrative Agents (which consent shall
not be unreasonably withheld) and the giving of notice to Company. To the
extent of any such assignment in accordance with either clause (a) or (b)
above, the assigning Lender shall be relieved of its obligations with
respect to its Commitments, Loans, Letters of Credit, or participations
therein or other Obligations or the portion thereof so assigned. The
parties to each such assignment shall execute and deliver to Chase
Co-Administrative Agent, for its acceptance and recording in the Register,
an Assignment Agreement, together with a processing fee of $3,000 payable
by the assigning Lender and such certificates, documents or other evidence,
if any, with respect to United States federal income tax withholding
matters as the assignee under such Assignment Agreement may be required to
deliver to Chase Co-Administrative Agent pursuant to subsection
2.7B(iii)(a). Upon such execution, delivery, acceptance and recordation,
from and after the effective date specified in such Assignment Agreement,
(y) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment Agreement, shall have the rights and obligations of a Lender
hereunder and (z) the assigning Lender thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment Agreement, relinquish its rights (other than any rights which
survive the termination of this Agreement under subsection 10.9B) and be
released from its obligations under this Agreement (and, in the case of an
Assignment Agreement covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall
cease to be a party hereto; provided that, anything contained in any of the
Loan Documents to the contrary notwithstanding, if such Lender is the
Issuing Lender with respect to any outstanding Letters of Credit such
Lender shall continue to have all rights and obligations of an Issuing
Lender with respect to such Letters of Credit until the cancellation or
expiration of such Letters of Credit and the reimbursement of any amounts
drawn thereunder). The Commitments hereunder shall be modified to reflect
the Commitments of such assignee and any remaining Commitments of such
assigning Lender and, if any such assignment occurs after the issuance of
the Notes hereunder, the assigning Lender shall surrender its applicable
Notes and, upon such surrender, new Notes shall be issued to the assignee
and, if applicable, to the assigning Lender, substantially in the form of
Exhibit IV-A, Exhibit IV-B, Exhibit IV-C, Exhibit V or Exhibit VI annexed
hereto, as the case may be, with appropriate insertions, to reflect the new
Commitments and/or outstanding Term Loans of the assignee and the assigning
Lender.
(ii) Acceptance by Chase Co-Administrative Agent; Recordation in
Register. Upon its receipt of an Assignment Agreement executed by an
assigning Lender and an assignee representing that it is an Eligible
Assignee, together with the processing fee referred to in subsection
10.1B(i) and any certificates, documents or other evidence with respect to
United States federal income tax withholding matters that such assignee may
be required to deliver to Chase Co-Administrative Agent pursuant to
subsection 2.7B(iii)(a), Chase Co-Administrative Agent shall, if such
Assignment Agreement has been completed and is in substantially the form of
Exhibit XIII hereto and if Co-Administrative Agents have consented to the
assignment evidenced thereby (to the extent such consent is required
pursuant to subsection 10.1B(i)), (a) accept such Assignment Agreement by
executing a counterpart thereof as provided therein (which acceptance shall
evidence any required consent of Chase Co-Administrative Agent to such
assignment), (b) record the information contained therein in the Register,
and (c) give prompt notice thereof to Company. Chase Co-Administrative
Agent shall maintain a copy of each Assignment Agreement delivered to and
accepted by it as provided in this subsection 10.1B(ii).
C. PARTICIPATIONS. The holder of any participation, other than an Affiliate
of the Lender granting such participation, shall not be entitled to require such
Lender to take or omit to take any action hereunder except action (i) effecting
the extension of the final maturity of the Loan allocated to such participation,
(ii) effecting a reduction of the principal amount of or affecting the rate of
interest payable on any Loan allocated to such participation, (iii) releasing
all or substantially all of the Collateral, or (iv) releasing all of the
Guarantors from their obligations under the Guaranties, and all amounts payable
by Company hereunder (including, without limitation, amounts payable to such
Lender pursuant to subsections 2.6D, 2.7 and 3.6) shall be determined as if such
Lender had not sold such participation. Company and each Lender hereby
acknowledge and agree that, solely for purposes of subsections 10.4 and 10.5,
(a) any participation will give rise to a direct obligation of Company to the
participant and (b) the participant shall be considered to be a "Lender".
D. ASSIGNMENTS TO FEDERAL RESERVE BANKS. In addition to the assignments and
participations permitted under the foregoing provisions of this subsection 10.1,
any Lender may assign and pledge all or any portion of its Loans, the other
Obligations owed to such Lender and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any operating circular issued by such Federal Reserve
Bank; provided that (i) no Lender shall, as between Company and such Lender, be
relieved of any of its obligations hereunder as a result of any such assignment
and pledge and (ii) in no event shall such Federal Reserve Bank be considered to
be a "Lender" or be entitled to require the assigning Lender to take or omit to
take any action hereunder.
E. INFORMATION. Each Lender may furnish any information concerning Company
and its Subsidiaries in the possession of that Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject to subsection 10.20.
F. LIMITATION. No assignee, participant or other transferee or any Lender's
rights shall be entitled to receive any greater payment under subsection 2.7
than such Lender would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with Company's prior written consent
or at a time when the circumstances giving rise to such greater payment did not
exist.
G. REPRESENTATIONS OF LENDERS. Each Lender listed on the signature pages
hereof hereby represents and warrants (i) that it is an Eligible Assignee
described in clause (i) of the definition thereof; (ii) that it has experience
and expertise in the making of loans such as the Loans; and (iii) that it will
make its Loans for its own account in the ordinary course of its business and
without a view to distribution of such Loans within the meaning of the
Securities Act or the Exchange Act or other federal securities laws (it being
understood that, subject to the provisions of this subsection 10.1, the
disposition of such Loans or any interests therein shall at all times remain
within its exclusive control). Each Lender that becomes a party hereto pursuant
to an Assignment Agreement shall be deemed to agree that the representations and
warranties of such Lender contained in Section 2(c) of such Assignment Agreement
are incorporated herein by this reference.
10.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be consummated,
Company agrees to pay promptly (i) all the actual and reasonable costs and out
of pocket expenses of Co-Administrative Agents in connection with the
preparation of the Loan Documents; (ii) all the actual and reasonable costs of
furnishing all opinions by counsel for Company (including, without limitation,
any opinions requested by Lenders as to any legal matters arising hereunder) and
of Company's performance of and compliance with all agreements and conditions on
its part to be performed or complied with under this Agreement and the other
Loan Documents including, without limitation, with respect to confirming
compliance with environmental and insurance requirements; (iii) the reasonable
fees, expenses and disbursements of counsel to Agents (including allocated costs
of internal counsel) in connection with the negotiation, preparation, execution
and administration of the Loan Documents and the Loans and any consents,
amendments, waivers or other modifications hereto or thereto and any other
documents or matters requested by Company; (iv) all other actual and reasonable
costs and expenses incurred by Agents in connection with the negotiation,
preparation and execution of the Loan Documents and the transactions
contemplated hereby and thereby; and (v) after the occurrence of an Event of
Default, all costs and expenses, including reasonable attorneys' fees (including
allocated costs of internal counsel) and costs of settlement, incurred by Agents
and Lenders in enforcing any Obligations of or in collecting any payments due
from Company hereunder or under the other Loan Documents by reason of such Event
of Default or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-out" or
pursuant to any insolvency or bankruptcy proceedings.
10.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection 10.2, whether
or not the transactions contemplated hereby shall be consummated, Company agrees
to defend, indemnify, pay and hold harmless Agents and Lenders, and the
officers, directors, trustees, partners, employees, agents, attorneys and
affiliates of any of Agents and Lenders (collectively called the "INDEMNITEES")
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, expenses and disbursements
of any kind or nature whatsoever (including, without limitation, the reasonable
fees and disbursements of counsel for such Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnitee shall be designated as a party or
a potential party thereto), whether direct, indirect or consequential and
whether based on any federal, state or foreign laws, statutes, rules or
regulations (including, without limitation, securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby (including, without limitation, Lenders'
agreement to make the Loans hereunder or the use or intended use of the proceeds
of any of the Loans or the issuance of Letters of Credit hereunder or the use or
intended use of any of the Letters of Credit) (collectively called the
"INDEMNIFIED LIABILITIES"); provided that Company shall not have any obligation
to any Indemnitee hereunder with respect to any Indemnified Liabilities to the
extent, and only to the extent, of any particular liability, obligation, loss,
damage, penalty, claim, cost, expense or disbursement that arose from the gross
negligence or willful misconduct of that Indemnitee as determined by a final
judgment of a court of competent jurisdiction. To the extent that the
undertaking to defend, indemnify, pay and hold harmless set forth in the
preceding sentence may be unenforceable because it is violative of any law or
public policy, Company shall contribute the maximum portion that it is permitted
to pay and satisfy under applicable law to the payment and satisfaction of all
Indemnified Liabilities incurred by the Indemnitees or any of them.
10.4 SET-OFF; SECURITY INTEREST IN DEPOSIT ACCOUNTS.
In addition to any rights now or hereafter granted under applicable law and
not by way of limitation of any such rights, upon the occurrence and during the
continuance of any Event of Default each Lender is hereby authorized by Company
at any time or from time to time, without notice to Company or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or special, including,
but not limited to, Indebtedness evidenced by certificates of deposit, whether
matured or unmatured, but not including trust accounts) and any other
Indebtedness at any time held or owing by that Lender (at any office of that
Lender wherever located) to or for the credit or the account of Company against
and on account of the obligations and liabilities of Company to that Lender
under this Agreement, the Notes, the Letters of Credit and participations
therein, including, but not limited to, all claims of any nature or description
arising out of or connected with this Agreement, the Notes, the Letters of
Credit and participations therein or any other Loan Document, irrespective of
whether or not (i) that Lender shall have made any demand hereunder or (ii) the
principal of or the interest on the Loans or any amounts in respect of the
Letters of Credit or any other amounts due hereunder shall have become due and
payable pursuant to Section 8 and although said obligations and liabilities, or
any of them, may be contingent or unmatured. Company hereby further grants to
each Agent and Lender a security interest in all deposits and accounts
maintained with such Agent or Lender as security for the Obligations.
10.5 RATABLE SHARING.
Lenders hereby agree among themselves that if any of them shall, whether by
voluntary payment (other than a voluntary prepayment of Loans made and applied
in accordance with the terms of this Agreement), by realization upon security,
through the exercise of any right of set-off or banker's lien, by counterclaim
or cross action or by the enforcement of any right under the Loan Documents or
otherwise, or as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction of a proportion of the
aggregate amount of principal, interest, amounts payable in respect of Letters
of Credit, fees and other amounts then due and owing to that Lender hereunder or
under the other Loan Documents (collectively, the "AGGREGATE AMOUNTS DUE" to
such Lender) which is greater than the proportion received by any other Lender
in respect of the Aggregate Amounts Due to such other Lender, then the Lender
receiving such proportionately greater payment shall (i) notify Chase
Co-Administrative Agent and each other Lender of the receipt of such payment and
(ii) apply a portion of such payment to purchase participations (which it shall
be deemed to have purchased from each seller of a participation simultaneously
upon the receipt by such seller of its portion of such payment) in the Aggregate
Amounts Due to the other Lenders so that all such recoveries of Aggregate
Amounts Due shall be shared by all Lenders in proportion to the Aggregate
Amounts Due to them; provided that if all or part of such proportionately
greater payment received by such purchasing Lender is thereafter recovered from
such Lender upon the bankruptcy, reorganization or insolvency proceeding of
Company or otherwise, those purchases shall be rescinded and the purchase prices
paid for such participations shall be returned to such purchasing Lender ratably
to the extent of such recovery, but without interest. Company expressly consents
to the foregoing arrangement and agrees that any holder of a participation so
purchased may exercise any and all rights of banker's lien, set-off or
counterclaim with respect to any and all monies owing by Company to that holder
with respect thereto as fully as if that holder were owed the amount of the
participation held by that holder.
10.6 AMENDMENTS AND WAIVERS.
A. No amendment, modification, termination or waiver of any provision of
this Agreement or of the Notes, or consent to any departure by Company or any
other Loan Party therefrom, shall in any event be effective without the written
concurrence of Requisite Lenders; provided that any such amendment,
modification, termination, waiver or consent which: reduces the principal amount
of any of the Loans; reduces the percentage specified in the definition of
"Requisite Lenders" (it being understood that, with the consent of Requisite
Lenders, additional extensions of credit pursuant to this Agreement may be
included in the determination of "Requisite Lenders" on substantially the same
basis as the Tranche A Term Loan Commitments, Tranche A Term Loans, Tranche B
Term Loan Commitments, Tranche B Term Loans, Tranche C Term Loan Commitments,
Tranche C Term Loans, Revolving Loan Commitments and Revolving Loans are
included on the Effective Date); changes in any manner any provision of this
Agreement which, by its terms, expressly requires the approval or concurrence of
all Lenders; postpones the scheduled final maturity date of any of the Loans;
postpones the date or reduces the amount of any scheduled payment (but not
prepayment) of principal of any of the Loans; postpones the date on which any
interest or any fees are payable; decreases the interest rate borne by any of
the Loans (other than any waiver of any increase in the interest rate applicable
to any of the Loans pursuant to subsection 2.2E) or the amount of any fees
payable hereunder; increases the maximum duration of Interest Periods permitted
hereunder; releases all or substantially all of the Collateral; releases all of
the Guarantors from their obligations under the Guaranties; reduces the amount
or postpones the due date of any amount payable in respect of, or extends the
required expiration date of, any Letter of Credit; changes the obligations of
Lenders relating to the purchase of participations in Letters of Credit in any
manner that could be adverse to any Issuing Lender; or changes in any manner the
provisions contained in subsection 8.1 or this subsection 10.6; shall be
effective only if evidenced by a writing signed by or on behalf of all Lenders
to whom are owed Obligations being directly affected by such amendment,
modification, termination, waiver or consent. In addition, (i) any amendment,
modification, termination or waiver of any of the provisions contained in
Section 4 shall be effective only if evidenced by a writing signed by or on
behalf of Co-Administrative Agents and Requisite Lenders, (ii) no amendment,
modification, termination or waiver of any provision of any Note shall be
effective without the written concurrence of the Lender which is the holder of
that Note, (iii) no amendment, modification, termination or waiver of any
provision of this Agreement which disproportionately and adversely affects the
obligation of any Loan Party to make payments (including without limitation
mandatory prepayments) to the holders of the Tranche A Term Loans, the holders
of the Tranche B Term Loans, the holders of the Tranche C Loans or the holders
of the Revolving Loans and Revolving Loan Commitments, shall be effective
without the written concurrence of the holders of 51% in principal amount of the
class (i.e., Tranche A Term Loans, Tranche B Term Loans, Tranche C Loans or
Revolving Loans and Revolving Loan Commitments each being a "class" of Loans) of
Loans so disproportionately and adversely affected; (iv) no increase in the
Commitments of any Lender over the amount thereof then in effect shall be
effective without the written concurrence of that Lender, it being understood
and agreed that in no event shall waivers or modifications of conditions
precedent, covenants, Events of Default, Potential Events of Default or of a
mandatory prepayment or a reduction of any or all of the Commitments be deemed
to constitute an increase of the Commitment of any Lender and that an increase
in the available portion of any Commitment of any Lender shall not be deemed to
constitute an increase in the Commitment of such Lender, (v) no amendment,
modification, termination or waiver of any provision of subsection 2.1A(iv) or
any other provision of this Agreement relating to the Swing Line Loan Commitment
or the Swing Line Loans shall be effective without the written concurrence of
Swing Line Lender, (vi) no amendment, modification, termination or waiver of any
provision of Section 3 relating to the rights or obligations of any or all
Issuing Lenders shall be effective without the written concurrence of Chase
Co-Administrative Agent and each Lender who is an Issuing Lender with respect to
any Letter of Credit then outstanding, and (vii) no amendment, modification,
termination or waiver of any provision of Section 9 or of any other provision of
this Agreement which, by its terms, expressly requires the approval or
concurrence of Chase Co-Administrative Agent or Co-Administrative Agent shall be
effective without the written concurrence of Chase Co-Administrative Agent or
Co-Administrative Agent, as the case may be, Chase Co-Administrative Agent may,
but shall have no obligation to, with the concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of that Lender. Any
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it was given. No notice to or demand on Company in
any case shall entitle Company to any other or further notice or demand in
similar or other circumstances. Any amendment, modification, termination, waiver
or consent effected in accordance with this subsection 10.6 shall be binding
upon each Lender at the time outstanding, each future Lender and, if signed by
Company, on Company.
B. If, in connection with any proposed change, waiver, discharge or
termination to any of the provision of this Agreement as contemplated by the
proviso in the first sentence of this subsection 10.6, the consent of Requisite
Lenders is obtained but consent of one or more of such other Lenders whose
consent is required is not obtained, then Company may, so long as all
non-consenting Lenders are so treated, elect to terminate such Lender as a party
to this Agreement; provided that, concurrently with such termination, (i)
Company shall pay that Lender all principal, interest and fees and other amounts
due to be paid to such Lender with respect to all periods through such date of
termination, (ii) another financial institution satisfactory to Company and
Co-Administrative Agents (or if either Co-Administrative Agent is also a Lender
to be terminated, the successor Co-Administrative Agent and the
Co-Administrative Agent not so terminated) shall agree, as of such date, to
become a Lender for all purposes under this Agreement (whether by assignment or
amendment) and to assume all obligations of the Lender to be terminated as of
such date, and (iii) all documents and supporting materials necessary, in the
judgment of Co-Administrative Agents (or if either Co-Administrative Agent is
also a Lender to be terminated, the successor Co-Administrative Agent and the
Co-Administrative Agent not so terminated) to evidence the substitution of such
Lender shall have been received and approved by Co-Administrative Agents as of
such date.
10.7 INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or would otherwise be within
the limitations of, another covenant shall not avoid the occurrence of an Event
of Default or Potential Event of Default if such action is taken or condition
exists.
10.8 NOTICES.
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telecopied, telexed or sent by United States mail or
courier service and shall be deemed to have been given when delivered in person
or by courier service, upon receipt of telecopy or telex, or four Business Days
after depositing it in the United States mail, registered or certified, with
postage prepaid and properly addressed; provided that notices to Chase
Co-Administrative Agent shall not be effective until received. For the purposes
hereof, the address of each party hereto shall be as set forth under such
party's name on the signature pages hereof or (i) as to Company and Chase
Co-Administrative Agent, such other address as shall be designated by such
Person in a written notice delivered to the other parties hereto and (ii) as to
each other party, such other address as shall be designated by such party in a
written notice delivered to Chase Co-Administrative Agent.
10.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
A. All representations, warranties and agreements made herein shall survive
the execution and delivery of this Agreement and the making of the Loans and the
issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of Company set forth in subsections 2.6D, 2.7, 3.5A,
3.6, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth in subsections
9.2C, 9.4, 10.4, 10.5 and 10.20 shall survive the payment of the Loans, the
cancellation or expiration of the Letters of Credit and the reimbursement of any
amounts drawn or paid thereunder, and the termination of this Agreement.
10.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of Chase Co-Administrative Agent,
Collateral Agent or any Lender in the exercise of any power, right or privilege
hereunder or under any other Loan Document shall impair such power, right or
privilege or be construed to be a waiver of any default or acquiescence therein,
nor shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other power, right or
privilege. All rights and remedies existing under this Agreement and the other
Loan Documents are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
10.11 MARSHALLING; PAYMENTS SET ASIDE.
Neither Chase Co-Administrative Agent nor any Lender shall be under any
obligation to marshal any assets in favor of Company or any other party or
against or in payment of any or all of the Obligations. To the extent that
Company makes a payment or payments to Chase Co-Administrative Agent, Collateral
Agent or Lenders (or to Chase Co-Administrative Agent or Collateral Agent for
the benefit of Lenders), or Chase Co-Administrative Agent, Collateral Agent or
Lenders enforce any security interests or exercise their rights of setoff, and
such payment or payments or the proceeds of such enforcement or setoff or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, any other state or federal law, common
law or any equitable cause, then, to the extent of such recovery, the obligation
or part thereof originally intended to be satisfied, and all Liens, rights and
remedies therefor or related thereto, shall be revived and continued in full
force and effect as if such payment or payments had not been made or such
enforcement or setoff had not occurred.
10.12 SEVERABILITY.
In case any provision in or obligation under this Agreement or the Notes
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
10.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS.
The obligations of Lenders hereunder are several and no Lender shall be
responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and it shall not be necessary for any other
Lender to be joined as an additional party in any proceeding for such purpose.
10.14 HEADINGS.
Section and subsection headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
10.15 APPLICABLE LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
10.16 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders (it being understood that
Lenders' rights of assignment are subject to subsection 10.1). Company's rights
or obligations hereunder nor any interest therein may not be assigned or
delegated by Company without the prior written consent of all Lenders.
10.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS THEREUNDER, MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE,
COUNTY AND CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT,
COMPANY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY
SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO COMPANY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SUBSECTION
10.8;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER COMPANY IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN THE
COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.17 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST
EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR
OTHERWISE.
10.18 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN
THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver
is intended to be all-encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of this transaction, including,
without limitation, contract claims, tort claims, breach of duty claims and all
other common law and statutory claims. Each party hereto acknowledges that this
waiver is a material inducement to enter into a business relationship, that each
has already relied on this waiver in entering into this Agreement, and that each
will continue to rely on this waiver in their related future dealings. Each
party hereto further warrants and represents that it has reviewed this waiver
with its legal counsel and that it knowingly and voluntarily waives its jury
trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING
(OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION
10.18 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the event of litigation,
this Agreement may be filed as a written consent to a trial by the court.
10.19 CONFIDENTIALITY.
Each Lender shall hold all non-public information obtained pursuant to the
requirements of this Agreement which has been identified as confidential by
Company in accordance with such Lender's customary procedures for handling
confidential information of this nature, it being understood and agreed by
Company that in any event a Lender may make disclosures reasonably required by
any bona fide assignee, transferee or participant in connection with the
contemplated assignment or transfer by such Lender of any Loans or any
participation therein or as required or requested by any governmental agency or
representative thereof or pursuant to legal process or by the National
Association of Insurance Commissioners or in connection with the exercise of any
remedy under the Loan Documents; provided that, unless specifically prohibited
by applicable law or court order, each Lender shall notify Company of any
request by any governmental agency or representative thereof (other than any
such request in connection with any examination of the financial condition of
such Lender by such governmental agency) for disclosure of any such non-public
information prior to disclosure of such information; and provided, further that
in no event shall any Lender be obligated or required to return any materials
furnished by Company or any of its Subsidiaries.
10.20 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or supplements hereto
or in connection herewith may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
It is the intention of each of the parties hereto that the Existing Credit
Agreement be amended and restated so as to preserve the perfection and priority
of all security interests securing indebtedness and obligations under the
Existing Credit Agreement and the other Loan Documents and that all indebtedness
and obligations of Company and its Subsidiaries hereunder and thereunder shall
be secured by the Collateral Documents and that this Agreement shall not
constitute a novation of the obligations and liabilities existing under the
Existing Credit Agreement or be deemed to evidence or constitute repayment of
all or any portion of any such obligations or liabilities. The parties hereto
further acknowledge and agree that this Agreement constitutes an amendment of
the Existing Credit Agreement made under the terms of subsection 10.6 thereof.
The Agreement shall become effective upon the execution of a counterpart
hereof by Company, Co-Administrative Agents, Requisite Lenders (as such term is
defined in the Existing Credit Agreement) and the New Lenders and receipt by
Company and Chase Co-Administrative Agent of written or telephonic notification
of such execution and authorization of delivery thereof; provided that, unless
and until all of the conditions set forth in subsections 4.2 and 4.4 have been
satisfied or waived in accordance with subsection 10.6 of the Existing Credit
Agreement, the Existing Credit Agreement shall remain in full force and effect
without giving effect to the amendments set forth herein, all as if this
Agreement had never been executed and delivered.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY: OUTSOURCING SOLUTIONS INC.
By: ____________________________
Name:
Title:
Notice Address:
390 South Woods Mill Road, Suite 150
Chesterfield, Missouri 63017
Attention: Daniel J. Dolan
Chief Financial Officer
Facsimile: (314) 576-1867
with a copy to:
McCown De Leeuw & Co.
31st Floor
101 East 52nd Street
New York, New York 10022
Attention: Tyler T. Zachem
Facsimile: (212) 355-6283
(212) 355-6945
and a copy to:
White & Case
1155 Avenue of the Americas
New York, New York 10036
Attention: Frank L. Schiff, Esq.
Facsimile: (212) 819-7817
AGENTS AND LENDERS: GOLDMAN SACHS CREDIT PARTNERS L.P.,
individually, as a Co-Administrative Agent
and as an Arranging Agent
By: _____________________________
Authorized Signatory
Notice Address:
Goldman Sachs Credit Partners L.P.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Stephen King
Telephone: (212) 902-8123
Facsimile: (212) 357-8680
with a copy to:
Goldman Sachs Credit Partners L.P.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Lola Small
Telephone: (212) 902-4599
Facsimile: (212) 357-4597
THE CHASE MANHATTAN BANK,
individually and as a Co-Administrative Agent
By: _____________________________
Gail Weiss
Vice President
Notice Address:
270 Park Avenue, 36th Floor
New York, New York 10017
Attention: William J. Caggiano
Telephone: (212) 270-5049
Facsimile: (212) 270-1789
with a copy to:
One Chase Manhattan Plaza
8th Floor
New York, New York 10081
Attention: Sandra Miklave
Loan Servicing Group
Telephone: (212) 552-7953
Facsimile: (212) 552-5658
SUNTRUST BANK, ATLANTA,
individually and as Collateral Agent
By: _____________________________
Dennis H. James, Jr.
Assistant Vice President
By: _____________________________
Name:
Title:
Notice Address:
Suntrust Bank, Atlanta
25 Park Place, 23rd Floor
Atlanta, Georgia 30303
Attention: Dennis H. James, Jr.
Telephone: (404) 588-7963
Facsimile: (404) 588-8833
With a copy to:
Suntrust Bank, Atlanta
25 Park Place, 23rd Floor
Atlanta, Georgia 30303
Attention: Devyonne Aabeel
Telephone: (404) 588-7077
Facsimile: (404) 588-8833
THE FIRST NATIONAL BANK OF CHICAGO
By: _____________________________
Name:
Title:
Notice Address:
The First National Bank of Chicago
One First National Plaza
Mail Suite 0173
Chicago, IL 60670-0173
Attention: William J. Oleferchik
Telephone: (312) 732-2947
Facsimile: (312) 732-1117
With a copy to:
The First National Bank of Chicago
One First National Plaza
Mail Suite 0364
Chicago, IL 60670-0364
Telephone: (312) 732-6503
Facsimile: (312) 732-1117
BANK OF SCOTLAND
By: ______________________________
Name:
Title:
Notice Address:
Bank of Scotland
565 Fifth Avenue, 5th Floor
New York, New York 10017
Attention: John Kelly
Telephone: (212) 450-0830
Facsimile: (212) 682-5720
With a copy to:
Bank of Scotland
565 Fifth Avenue, 5th Floor
New York, New York 10017
Attention: Janet Taffe
Assistant Vice President
Telephone: (212) 450-0872
Facsimile: (212) 557-9460
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
By: _____________________________
Name:
Title:
Notice Address:
Merrill Lynch Asset Management
800 Scudders Mill Road - Area 2C
Plainsboro, New Jersey 08536
Attention: Anthony Clemente
Telephone: (609) 282-2092
Facsimile: (609) 282-2756
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CREDITANSTALT - BANKVEREIN
By: _____________________________
Robert M. Biringer
Executive Vice President
By: _____________________________
Carl G. Drake
Senior Associate
Notice Address:
Creditanstalt
Two Ravina Drive, Suite 1680
Atlanta, Georgia 30346
Attention: Robert M. Biringer
Telephone: (770) 390-1850
Facsimile: (770) 390-1851
With a copy to:
Troutman Sanders
Suite 5200
600 Peachtree Street, N.W.
Atlanta, GA 30308
Attention: Hazen Dempster
Telephone: (404) 885-3000
Facsimile: (404) 885-3947
Creditanstalt
Two Greenwich Plaza
Greenwich, CT 06830
Attention: Lisa Bruno
Telephone: (203) 861-6464
Facsimile: (203) 861-6594
BANKBOSTON, N.A.
By: _____________________________
Name:
Title:
Notice Address:
BankBoston, N.A.
Diversified Finance
100 Federal Street, MS 01-08-05
Boston, Massachusetts 02110
Attention: Clifford A. Gaysunas
Assistant Vice President
Telephone: (617) 434-3051
Facsimile: (617) 434-4929
With a copy to:
BankBoston, N.A.
Commercial Loan Services
100 Federal Street, MS 01-08-04
Boston, Massachusetts 02110
Attention: Joan Broderick
Administrative Officer
Telephone: (617) 434-2456
Facsimile: (617) 434-9820
HELLER FINANCIAL, INC.
By: _____________________________
Name:
Title:
Notice Address:
Heller Financial
500 West Monroe Street
Chicago, Illinois 60661
Attention: Patrick Hayes
Telephone: (312) 441-7035
Facsimile: (312) 441-7357
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PNC BANK, NATIONAL ASSOCIATION
By: _____________________________
Name:
Title:
Notice Address:
PNC Bank
345 Park Avenue, 29th Floor
New York, New York 10154
Attention: Mark Williams
Telephone: (212) 409-3724
Facsimile: (212) 409-3737
With a copy to:
PNC Bank
345 Park Avenue, 29th Floor
New York, New York 10154
Attention: Anna Di Rocco
Telephone: (212) 409-3717
Facsimile: (212) 409-3737
SOUTHERN PACIFIC BANK
By: _____________________________
Name:
Title:
Notice Address:
Southern Pacific Bank
12300 Wilshire Blvd.
Los Angeles, California 90025
Attention: Chris Kelleher
Charles D. Martorano
Telephone: (310) 442-3351/3315
Facsimile: (310) 207-4067
With a copy to:
Southern Pacific Bank
12300 Wilshire Blvd.
Los Angeles, California 90025
Attention: Charles Williams
Telephone: (310) 442-3312
Facsimile: (310) 207-4067
VAN KAMPEN AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By: _____________________________
Name:
Title:
Notice Address:
Van Kampen American Capital
One Parkview Plaza
Oakbrook Terrace, Illinois 60181
Attention: Jeffrey Maillet
Telephone: (630) 684-6438
Facsimile: (630) 684-6740
INDOSUEZ CAPITAL FUNDING II, LTD.
By: INDOSUEZ CAPITAL LUXEMBOURG,
as Collateral Manager
By: _______________________
Name:
Title:
INDOSUEZ CAPITAL FUNDING III, LTD.
By: INDOSUEZ CAPITAL LUXEMBOURG,
as Collateral Manager
By: ________________________
Name:
Title:
Notice Address:
Indosuez Capital
1211 Avenue of the Americas
New York, NY 10036
Attention: Francoise Berthelot
Telephone: (212) 278-2213
Facsimile: (212) 278-2254
SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT AND
RESEARCH, as Investment Advisor
By: _______________________
Name:
Title:
Notice Address:
Eaton Vance Management
24 Federal Street
Boston, MA 02210
Attention: Scott Page
Telephone: (617) 654-8486
Facsimile: (617) 695-9594
PILGRIM AMERICA PRIME RATE TRUST
By: _____________________________
Name:
Title:
Notice Address:
Pilgrim Group
Two Rennaissance Square
40 N. Central Avenue, Suite 1200
Phoenix, AZ 85004
Attention: Michael Bacevich
Telephone: (602) 417-8258
Facsimile: (602) 417-8327
KZH HOLDING CORPORATION III
By: _____________________________
Name:
Title:
Notice Address:
KZH Holding Corporation III
c/o The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, NY 10001
Attention: Virginia Conway/Joe Nerich
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
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PACIFIC LIFE CBO 1998-1 LTD
By: _____________________________
Name:
Title:
Notice Address:
Pacific Mutual Insurance
700 Newport Center Drive
Newport Beach, CA 92660
Attention: Michael Long
Telephone: (714) 640-3745
Facsimile: (714) 640-3199
CYPRESS TREE BOSTON PARTNERS
By: _____________________________
Name:
Title:
Notice Address:
BankBoston
100 Federal Street, Mail Stop 1-9-2
Boston, MA 02110
Attention: Patrick Morris
Telephone: (617) 434-9779
Facsimile: (617) 434-9591
DELANO COMPANY
By: Pacific Investment Management Company,
as its Investment Advisor
By: _____________________________
Name:
Title:
Notice Address:
Chase Bank of Texas National Association
601 Travis Street, 8th Floor
Houston, TX 77002
Attention: Delano Company
Telephone: (713) 216-1672
Facsimile: (713) 216-8299
KZH-CRESCENT CORPORATION
By: _____________________________
Name:
Title:
Notice Address:
KZH-Crescent Corporation
c/o The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, NY 10001
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
KZH-CRESCENT 2 CORPORATION
By: _____________________________
Name:
Title:
Notice Address:
KZH-Crescent 2 Corporation
c/o The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, NY 10001
Attention: Virginia Conway
Telephone: (212) 946-7575
Facsimile: (212) 946-7776
EXECUTION
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF JANUARY 26, 1998
AMONG
OUTSOURCING SOLUTIONS INC.,
AS BORROWER,
THE LENDERS LISTED HEREIN,
AS LENDERS,
GOLDMAN SACHS CREDIT PARTNERS L.P.
AND
THE CHASE MANHATTAN BANK,
AS CO-ADMINISTRATIVE AGENTS,
GOLDMAN SACHS CREDIT PARTNERS L.P.
AND
CHASE SECURITIES INC.,
AS ARRANGING AGENTS,
AND
SUNTRUST BANK, ATLANTA,
AS COLLATERAL AGENT
OUTSOURCING SOLUTIONS INC.
CREDIT AGREEMENT
TABLE OF CONTENTS
PAGE
SECTION 1.
DEFINITIONS 3
1.1 Certain Terms..................................................... 3
1.2 Accounting Terms; Utilization of GAAP for Purposes of
Calculations Under Agreement...................................... 36
1.3 Other Definitional Provisions..................................... 36
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS 36
2.1 Commitments; Loans................................................ 36
2.2 Interest on the Loans............................................. 44
2.3 Fees.............................................................. 48
2.4 Repayments, Prepayments and Reductions in Revolving
Loan Commitments; General Provisions Regarding Payments........... 49
2.5 Use of Proceeds................................................... 59
2.6 Special Provisions Governing Eurodollar Rate Loans................ 60
2.7 Increased Costs; Taxes; Capital Adequacy.......................... 63
2.8 Obligation of Lenders and Issuing Lenders to Mitigate............. 67
SECTION 3.
LETTERS OF CREDIT 68
3.1 Issuance of Letters of Credit and Lenders' Purchase
of Participations Therein......................................... 68
3.2 Letter of Credit Fees............................................. 72
3.3 Drawings and Payments and Reimbursement of Amounts Paid
Under Letters of Credit........................................... 72
3.4 Obligations Absolute.............................................. 75
3.5 Indemnification; Nature of Issuing Lender's Duties................ 76
3.6 Increased Costs and Taxes Relating to Letters of Credit........... 77
SECTION 4.
CONDITIONS TO LOANS AND LETTERS OF CREDIT 78
4.1 Conditions to Existing Loans and Letters of Credit................ 78
4.2 Conditions to Tranche C Term Loans................................ 78
4.3 Conditions to Delayed-Draw Term Loans............................. 86
4.4 Conditions to All Loans........................................... 88
4.5 Conditions to Letters of Credit................................... 89
SECTION 5.
REPRESENTATIONS AND WARRANTIES 90
5.1 Organization, Powers, Qualification, Good Standing,
Business and Subsidiaries......................................... 90
5.2 Authorization of Borrowing, etc.. ................................ 91
5.3 Financial Condition; Projections.................................. 92
5.4 No Material Adverse Change; No Restricted Junior Payments......... 94
5.5 Title to Properties; Liens........................................ 94
5.6 Litigation; Adverse Facts......................................... 94
5.7 Payment of Taxes.................................................. 95
5.8 Performance of Agreements; Materially Adverse Agreements.......... 95
5.9 Governmental Regulation........................................... 95
5.10 Securities Activities............................................. 95
5.11 Employee Benefit Plans............................................ 95
5.12 Certain Fees...................................................... 96
5.13 Environmental Protection.......................................... 96
5.14 Employee Matters.................................................. 98
5.15 Solvency.......................................................... 98
5.16 Matters Relating to Collateral.................................... 98
5.17 Related Agreements................................................ 99
5.18 Disclosure........................................................ 100
5.19 Subordination of Seller Notes..................................... 101
5.20 Margin Lending Matters............................................ 101
SECTION 6.
AFFIRMATIVE COVENANTS 101
6.1 Financial Statements and Other Reports............................ 101
6.2 Corporate Existence, etc.......................................... 107
6.3 Payment of Taxes and Claims; Tax Consolidation.................... 107
6.4 Maintenance of Properties; Insurance.............................. 108
6.5 Inspection; Lender Meeting........................................ 108
6.6 Compliance with Laws, etc......................................... 108
6.7 Environmental Disclosure and Inspection........................... 109
6.8 Company's Remedial Action Regarding Hazardous Materials........... 110
6.9 Execution of Subsidiary Guaranty and Subsidiary Security
Agreements by Subsidiaries and Future Subsidiaries................ 110
6.10 Interest Rate Protection.......................................... 111
6.11 Conduct of Business of Merger Sub................................. 111
6.12 Conduct of Business of Union...................................... 112
6.13 Union Merger...................................................... 112
6.14 Further Assurances................................................ 112
SECTION 7.
NEGATIVE COVENANTS 113
7.1 Indebtedness...................................................... 113
7.2 Liens and Related Matters......................................... 114
7.3 Investments; Joint Ventures....................................... 115
7.4 Contingent Obligations............................................ 116
7.5 Restricted Junior Payments........................................ 118
7.6 Financial Covenants............................................... 118
7.7 Restriction on Fundamental Changes; Asset Sales................... 121
7.8 Sales and Lease-Backs............................................. 123
7.9 Transactions with Shareholders and Affiliates..................... 123
7.10 Disposal of Subsidiary Stock...................................... 124
7.11 Conduct of Business............................................... 124
7.12 Amendments or Waivers of Certain Related Agreements;
Amendments of Documents Relating to Subordinated
Indebtedness; Designation of "Designated Senior Debt ";
Preferred Stock................................................... 124
7.13 Fiscal Year....................................................... 125
SECTION 8.
EVENTS OF DEFAULT 125
8.1 Failure to Make Payments When Due................................. 125
8.2 Default in Other Agreements....................................... 126
8.3 Breach of Certain Covenants....................................... 126
8.4 Breach of Warranty................................................ 126
8.5 Other Defaults Under Loan Documents............................... 126
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc.............. 127
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc................ 127
8.8 Judgments and Attachments......................................... 127
8.9 Dissolution....................................................... 128
8.10 Employee Benefit Plans............................................ 128
8.11 Change in Control................................................. 128
8.12 Invalidity of Guaranties. 129
8.13 Failure of Security............................................... 129
8.14 Failure to Consummate Acquisitions.129
8.15 Default Under Subordination Provisions............................ 130
SECTION 9.
AGENTS 131
9.1 Appointment....................................................... 131
9.2 Powers; General Immunity.......................................... 132
9.3 Representations and Warranties; No Responsibility For Appraisal of
Creditworthiness.................................................. 134
9.4 Right to Indemnity................................................ 134
9.5 Successor Agents and Swing Line Lender............................ 134
9.6 Collateral Documents.............................................. 135
SECTION 10.
MISCELLANEOUS 136
10.1 Assignments and Participations in Loans, Letters of Credit........ 136
10.2 Expenses.......................................................... 139
10.3 Indemnity......................................................... 139
10.4 Set-Off; Security Interest in Deposit Accounts.................... 140
10.5 Ratable Sharing................................................... 141
10.6 Amendments and Waivers............................................ 141
10.7 Independence of Covenants......................................... 143
10.8 Notices........................................................... 143
10.9 Survival of Representations, Warranties and Agreements............ 144
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative............. 144
10.11 Marshalling; Payments Set Aside................................... 144
10.12 Severability...................................................... 145
10.13 Obligations Several; Independent Nature of Lenders' Rights........ 145
10.14 Headings.......................................................... 145
10.15 Applicable Law.................................................... 145
10.16 Successors and Assigns............................................ 145
10.17 Consent to Jurisdiction and Service of Process.................... 146
10.18 Waiver of Jury Trial.............................................. 146
10.19 Confidentiality................................................... 147
10.20 Counterparts; Effectiveness....................................... 147
Signature pages..............................................................S-1
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
IV-A FORM OF TRANCHE A TERM NOTE
IV-B FORM OF TRANCHE B TERM NOTE
IV-C FORM OF TRANCHE C TERM NOTE
V FORM OF REVOLVING NOTE
VI FORM OF SWING LINE NOTE
VII FORM OF SUBSIDIARY GUARANTY
VIII FORM OF PLEDGE AGREEMENT
IX-A FORM OF SECURITY AGREEMENT
IX-B FORM OF LIMITED PARTNERSHIP SECURITY AGREEMENT
IX-C FORM OF TRADEMARK SECURITY AGREEMENT
X FORM OF COMPLIANCE CERTIFICATE
XI FORM OF OPINION OF LOAN PARTIES' COUNSEL
XII FORM OF SECOND ACKNOWLEDGEMENT AND CONSENT
XIII FORM OF ASSIGNMENT AGREEMENT
XIV FORM OF PERMITTED SELLER NOTE
XV FORM OF CERTIFICATE RE NON-BANK STATUS
XVI FORM OF COLLATERAL ACCOUNT AGREEMENT
SCHEDULES
2.1 LENDERS' COMMITMENTS, EXISTING LOANS AND PRO RATA SHARES;
LENDING OFFICES
3.1 EXISTING LETTERS OF CREDIT
4.2J CORPORATE AND CAPITAL STRUCTURE; MANAGEMENT
5.1 SUBSIDIARIES OF COMPANY
5.13 CERTAIN ENVIRONMENTAL MATTERS
7.1 CERTAIN EXISTING INDEBTEDNESS
7.2 CERTAIN EXISTING LIENS
7.4 CERTAIN EXISTING CONTINGENT OBLIGATIONS
7.4(iv)(a) CERTAIN EXISTING EARN OUT AGREEMENTS
7.4(iv)(b) CERTAIN EXISTING FORWARD FLOW CONTRACTS
7.6E CERTAIN FINANCIAL CALCULATIONS
7.8 CERTAIN PERMITTED SALES AND LEASE-BACKS