EXHIBIT 4.8
CREDIT AGREEMENT
AMONG
INFOUSA INC.,
VARIOUS LENDERS,
AND
WELLS FARGO BANK, NATIONAL ASSOCIATION,
AS LEAD ARRANGER, SOLE BOOK RUNNER AND ADMINISTRATIVE AGENT
DATED AS OF MARCH 25, 2004
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS................................................................... 1
Section 1.1 Defined Terms................................................................................. 1
Section 1.2 Times; Other Definitional Terms; Rules of Interpretation...................................... 25
ARTICLE II AMOUNT AND TERMS OF CREDIT........................................................................ 25
Section 2.1 The Commitments............................................................................... 25
Section 2.2 Minimum Amount of Each Borrowing.............................................................. 28
Section 2.3 Notice of Borrowing........................................................................... 28
Section 2.4 Disbursement of Funds......................................................................... 30
Section 2.5 Notes......................................................................................... 31
Section 2.6 Conversions................................................................................... 32
Section 2.7 Pro Rata Borrowings........................................................................... 33
Section 2.8 Interest...................................................................................... 33
Section 2.9 Interest Periods.............................................................................. 34
Section 2.10 Increased Costs, Illegality, etc............................................................. 35
Section 2.11 Compensation................................................................................. 37
Section 2.12 Change of Lending Office..................................................................... 38
Section 2.13 Replacement of Lenders....................................................................... 38
Section 2.14 Limitation on Additional Amounts............................................................. 39
ARTICLE III LETTERS OF CREDIT................................................................................ 39
Section 3.1 Letters of Credit............................................................................. 39
Section 3.2 Maximum Letter of Credit Outstandings; Final Maturities....................................... 40
Section 3.3 Letter of Credit Requests; Minimum Stated Amount.............................................. 41
Section 3.4 Letter of Credit Participations............................................................... 42
Section 3.5 Agreement to Repay Letter of Credit Drawings.................................................. 44
Section 3.6 Increased Costs............................................................................... 45
ARTICLE IV COMMITMENT FEE; FEES; REDUCTIONS OF COMMITMENT.................................................... 46
Section 4.1 Fees.......................................................................................... 46
Section 4.2 Voluntary Termination of Unutilized Revolving Loan Commitments................................ 47
Section 4.3 Mandatory Reduction of Commitments............................................................ 47
ARTICLE V PREPAYMENTS; PAYMENTS; TAXES....................................................................... 48
Section 5.1 Voluntary Prepayments......................................................................... 48
Section 5.2 Mandatory Repayments and Commitment Reductions................................................ 49
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TABLE OF CONTENTS
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Section 5.3 Method and Place of Payment................................................................... 52
Section 5.4 Net Payments.................................................................................. 53
ARTICLE VI CONDITIONS PRECEDENT TO CREDIT EVENTS............................................................. 55
Section 6.1 Closing Date.................................................................................. 55
Section 6.2 Disclosure Letter; Notes...................................................................... 55
Section 6.3 Officer's Certificate......................................................................... 56
Section 6.4 Opinion of Counsel............................................................................ 56
Section 6.5 Corporate Documents; Proceedings; etc......................................................... 56
Section 6.6 Plans; Shareholders' Agreements; Employment Agreements........................................ 56
Section 6.7 Fee Payment................................................................................... 57
Section 6.8 Adverse Change, etc........................................................................... 57
Section 6.9 Litigation.................................................................................... 58
Section 6.10 Pledge Agreement............................................................................. 58
Section 6.11 Security Agreement........................................................................... 58
Section 6.12 Defeasance of Indenture...................................................................... 58
Section 6.13 Indenture Indebtedness....................................................................... 58
Section 6.14 Mortgages.................................................................................... 58
Section 6.15 Evidence of Perfection, etc.................................................................. 59
Section 6.16 Subsidiaries' Guaranty....................................................................... 60
Section 6.17 Insurance Policies........................................................................... 60
Section 6.18 Financial Statements; Projections............................................................ 60
Section 6.19 Solvency Certificate; Insurance Certificates................................................. 60
Section 6.20 Fees, etc.................................................................................... 60
ARTICLE VII CONDITIONS PRECEDENT TO ALL CREDIT EVENTS........................................................ 61
Section 7.1 No Default; Representations and Warranties.................................................... 61
Section 7.2 Notice of Borrowing; Letter of Credit Request................................................. 61
ARTICLE VIII REPRESENTATIONS, WARRANTIES AND AGREEMENTS...................................................... 62
Section 8.1 Organizational Status......................................................................... 62
Section 8.2 Power and Authority........................................................................... 62
Section 8.3 No Violation.................................................................................. 62
Section 8.4 Approvals..................................................................................... 63
Section 8.5 Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc.......... 63
Section 8.6 Litigation.................................................................................... 64
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TABLE OF CONTENTS
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PAGE
Section 8.7 True and Complete Disclosure.................................................................. 64
Section 8.8 Use of Proceeds; Payment to Indenture Trustee; Margin Regulations............................. 65
Section 8.9 Tax Returns and Payments...................................................................... 65
Section 8.10 Compliance with ERISA........................................................................ 66
Section 8.11 The Security Documents....................................................................... 67
Section 8.12 Representations and Warranties in the Credit Documents....................................... 68
Section 8.13 Properties................................................................................... 68
Section 8.14 Capitalization............................................................................... 68
Section 8.15 Subsidiaries................................................................................. 68
Section 8.16 Compliance with Statutes, etc................................................................ 68
Section 8.17 Investment Company Act....................................................................... 69
Section 8.18 Public Utility Holding Company Act........................................................... 69
Section 8.19 Environmental Matters........................................................................ 69
Section 8.20 Labor Relations.............................................................................. 70
Section 8.21 Patents, Licenses, Franchises and Formulas................................................... 70
Section 8.22 Existing Indebtedness........................................................................ 70
Section 8.23 Insurance.................................................................................... 71
ARTICLE IX AFFIRMATIVE COVENANTS............................................................................. 71
Section 9.1 Information Covenants......................................................................... 71
Section 9.2 Books, Records and Inspections; Annual Meetings............................................... 74
Section 9.3 Maintenance of Property; Insurance............................................................ 75
Section 9.4 Existence; Franchises......................................................................... 75
Section 9.5 Compliance with Statutes, etc................................................................. 76
Section 9.6 Compliance with Environmental Laws............................................................ 76
Section 9.7 ERISA......................................................................................... 77
Section 9.8 End of Fiscal Years; Fiscal Quarters.......................................................... 78
Section 9.9 Performance of Obligations.................................................................... 78
Section 9.10 Payment of Taxes............................................................................. 78
Section 9.11 Additional Security; Further Assurances...................................................... 78
Section 9.12 Use of Proceeds.............................................................................. 80
Section 9.13 Foreign Subsidiaries Security................................................................ 80
Section 9.14 Margin Stock................................................................................. 81
Section 9.15 Permitted Acquisitions....................................................................... 81
ARTICLE X NEGATIVE COVENANTS................................................................................. 83
Section 10.1 Liens........................................................................................ 83
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TABLE OF CONTENTS
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PAGE
Section 10.2 Consolidation, Merger, Purchase or Sale of Assets, etc....................................... 86
Section 10.3 Dividends.................................................................................... 88
Section 10.4 Indebtedness................................................................................. 89
Section 10.5 Advances, Investments and Loans.............................................................. 90
Section 10.6 Transactions with Affiliates................................................................. 92
Section 10.7 Consolidated Fixed Charge Coverage Ratio..................................................... 93
Section 10.8 Consolidated Total Leverage Ratio............................................................ 93
Section 10.9 Consolidated Net Worth....................................................................... 93
Section 10.10 Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements, etc.... 94
Section 10.11 Limitation on Certain Restrictions on Subsidiaries.......................................... 94
Section 10.12 Limitation on Issuance of Capital Stock..................................................... 95
Section 10.13 Business.................................................................................... 95
Section 10.14 Limitation on Creation of Subsidiaries...................................................... 95
Section 10.15 Operating Leases............................................................................ 96
ARTICLE XI EVENTS OF DEFAULT................................................................................. 96
Section 11.1 Events of Default............................................................................ 96
Section 11.2 Remedies..................................................................................... 99
ARTICLE XII THE ADMINISTRATIVE AGENT......................................................................... 100
Section 12.1 Appointment.................................................................................. 100
Section 12.2 Nature of Duties............................................................................. 100
Section 12.3 Lack of Reliance on the Administrative Agent................................................. 100
Section 12.4 Certain Rights of the Administrative Agent................................................... 101
Section 12.5 Reliance..................................................................................... 101
Section 12.6 Indemnification.............................................................................. 101
Section 12.7 The Administrative Agent in its Individual Capacity.......................................... 101
Section 12.8 Holders...................................................................................... 102
Section 12.9 Resignation by the Administrative Agent...................................................... 102
Section 12.10 Issuing Lender.............................................................................. 103
ARTICLE XIII MISCELLANEOUS................................................................................... 103
Section 13.1 Payment of Expenses, etc..................................................................... 103
Section 13.2 Right of Setoff.............................................................................. 104
Section 13.3 Notices...................................................................................... 105
Section 13.4 Benefit of Agreement; Assignments; Participations............................................ 105
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PAGE
Section 13.5 No Waiver; Remedies Cumulative............................................................... 108
Section 13.6 Payments Pro Rata............................................................................ 108
Section 13.7 Calculations; Computations; Accounting Terms................................................. 109
Section 13.8 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL....................... 109
Section 13.9 Counterparts................................................................................. 111
Section 13.10 Headings Descriptive........................................................................ 111
Section 13.11 Amendment or Waiver; etc.................................................................... 111
Section 13.12 Survival of Indemnities..................................................................... 113
Section 13.13 Domicile of Loans........................................................................... 113
Section 13.14 Register.................................................................................... 113
Section 13.15 Confidentiality............................................................................. 114
Section 13.16 Debt Rating................................................................................. 114
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SCHEDULE I Disclosure Letter
EXHIBIT A Form of Notice of Borrowing
EXHIBIT B Form of Term Note
EXHIBIT C Form of Revolving Note
EXHIBIT D Form of Swingline Note
EXHIBIT E Form of Letter of Credit Request
EXHIBIT F Form of Section 5.4(b)(ii) Certificate
EXHIBIT G Officers' Certificate
EXHIBIT H Solvency Certificate
EXHIBIT I Assignment and Assumption Agreement
EXHIBIT J Form of Intercompany Note
EXHIBIT K Form of Subordination Provisions
EXHIBIT L Form of Compliance Certificate
CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of March 25, 2004, is made by
and among INFOUSA INC., a Delaware corporation (the "Borrower"), the financial
institutions from time to time a party hereto in the capacity of a lender (in
such capacity, the "Lenders" and each a "Lender"), and WELLS FARGO BANK,
NATIONAL ASSOCIATION, as lead arranger, sole book runner and administrative
agent (in such capacity, the "Administrative Agent").
The Borrower, the Lenders and the Administrative Agent
hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS.
Section 1.1 Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acquired EBITDA" of any Acquired Entity or Business acquired
pursuant to a Permitted Acquisition means the consolidated EBITDA of
such Acquired Entity or Business calculated on a basis consistent with
the calculation of Consolidated EBITDA under this Agreement and in
compliance with laws, rules and regulations applicable to publicly
traded companies in the United States, including without limitation
Regulation S-X promulgated by the Securities and Exchange Commission,
or as may be approved by the Administrative Agent.
"Acquired Entity or Business" has the meaning given in the
definition of "Permitted Acquisition".
"Additional Security Documents" has the meaning given in
Section 9.11.
"Administrative Agent" means Wells Fargo, in its capacity as
administrative agent for the Lenders hereunder, and shall include any
successor to Wells Fargo or any other institution in such capacity
pursuant to Section 12.9.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling (including, but not limited
to, all directors and officers of such Person), controlled by, or under
direct or indirect common control with, such Person. A Person shall be
deemed to control another Person if such Person possesses, directly or
indirectly, the power (i) to vote 10% or more of the securities having
ordinary voting power for the election of directors of
such corporation or (ii) to direct or cause the direction of the
management and policies of such other Person, whether through the
ownership of voting securities, by contract or otherwise; excluding,
however, the Administrative Agent, the Lenders and their affiliates.
"Agreement" means this Credit Agreement.
"Applicable Margin" means with respect to Term Loans,
Revolving Loans, Swingline Loans and Commitment Fees, from and after
any Start Date to and including the corresponding End Date, the
respective percentage per annum set forth below under the respective
Type of Term Loans, Revolving Loans, Swingline Loans or Commitment Fees
and opposite the respective Level (i.e., Level 1, Level 2, Level 3, or
Level 4, as the case may be) indicated to have been achieved on the
applicable Test Date for such Start Date (as shown on the respective
officer's certificate delivered pursuant to Section 9.1(f) or the first
proviso below):
APPLICABLE MARGIN APPLICABLE MARGINS FOR
FOR EURODOLLAR LOANS BASE RATE LOANS
-------------------------------- ------------------------------
REVOLVING
LOANS,
AND
CONSOLIDATED TOTAL SWINGLINE
LEVEL LEVERAGE RATIO REVOLVING LOANS TERM LOANS LOANS TERM LOANS COMMITMENT FEES
1 TLR >or= 2.50:1 2.50% 2.50% 1.50% 1.75% 0.50%
2 TLR >or= 2.00:1 but < 2.25% 2.50% 1.25% 1.75% 0.40%
2.50:1
3 TLR >or= 1.50:1 but < 2.00% 2.50% 1.00% 1.75% 0.30%
2.00:1
4 TLR < 1.50:1 1.75% 2.25% 0.75% 1.50% 0.25%
provided, however, that if the Borrower fails to deliver the financial
statements required to be delivered pursuant to Section 9.1(b) or (c)
(accompanied by the officer's certificate required to be delivered
pursuant to Section 9.1(f) showing the applicable Consolidated Total
Leverage Ratio on the relevant Test Date) on or prior to the respective
date required by such Sections, then Level 1 pricing shall apply until
such time, if any, as the financial statements required as set forth
above and the accompanying officer's certificate have been delivered
showing the pricing for the respective Margin Reduction Period is at a
level which is less than Level 1 (it being understood that, in the case
of any late delivery of the financial statements and officer's
certificate as so required, the Applicable Margin, if any, shall apply
only from and after the date of the delivery of the complying financial
statements and
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officer's certificate); provided further, that subject to Section
2.8(c), Level 1 pricing shall apply at any time when any Default or
Event of Default exists. Notwithstanding anything to the contrary
contained in the immediately preceding sentence, Level 3 pricing shall
apply for the period from the Closing Date to but not including the
date which is the first Start Date after the Borrower's fiscal quarter
ending on June 30, 2004. The Applicable Margin in respect of Commitment
Fees is sometimes called the Commitment Fee Rate.
"Asset Sale" means any sale, transfer or other disposition by
any Company to any Person (including by way of redemption by such
Person) other than to the Borrower or a Wholly-Owned Subsidiary of the
Borrower of any asset (including, without limitation, any capital stock
or other securities of, or equity interests in, another Person) other
than sales of assets pursuant to Sections 10.2(b), (c), (h) and (i).
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement substantially in the form of Exhibit I, or in any
other form approved by the Administrative Agent (appropriately
completed).
"Bankruptcy Code" has the meaning given in Section 11.1(e).
"Base Rate" means for any day a fluctuating rate per annum
equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and
(b) the rate of interest most recently established by the
Administrative Agent as its "prime rate" or, if the Administrative
Agent ceases to announce a rate so designated, any similar successor
rate designated by the Administrative Agent, such rate being one of the
Administrative Agent's base rates and serves as the basis upon which
effective rates of interest are calculated for those loans making
reference thereto.
"Base Rate Loan" means (i) each Swingline Loan and (ii) each
other Loan designated or deemed designated as such by the Borrower at
the time of the incurrence thereof or conversion thereto.
"Borrower" has the meaning given in the first paragraph of
this Agreement.
"Borrowing" means the borrowing of one Type of Loan of a
single Tranche from all the Lenders having Commitments (or from the
Swingline Lender in the case of Swingline Loans) on a given date (or
resulting from a conversion or conversions on such date) having in the
case of Eurodollar Loans the same Interest Period, provided that Base
Rate Loans incurred pursuant to Section 2.10(b) shall be considered
part of the related Borrowing of Eurodollar Loans.
"Business Day" means (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any
day which shall be
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in New York, New York or Denver, Colorado, a legal holiday or a day on
which banking institutions are authorized or required by law or other
government action to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and
interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by
and between banks in the interbank Eurodollar market.
"Capital Expenditures" means, with respect to any Person, all
capital expenditures by such Person, as the same are (or would in
accordance with GAAP be) set forth in the consolidated statement of
cash flows of the Companies, exclusive of (A) expenditures made in
connection with the acquisition of assets in any Permitted Acquisition,
and (B) expenditures made in connection with the replacement or
restoration of assets to the extent financed (i) from insurance
proceeds paid on account of the loss of or damage to the assets being
replaced or restored, or (ii) with proceeds from the sale or other
disposition of an asset which is replaced within 180 days from such
sale or other disposition with another asset performing the same or a
similar function.
"Capitalized Lease Obligations" means, with respect to any
Person, all rental obligations of such Person which, under GAAP, are or
will be required to be capitalized on the books of such Person, in each
case taken at the amount thereof accounted for as indebtedness in
accordance with such principles.
"Cash Equivalents" means, as to any Person, (i) securities
issued or directly and fully guaranteed or insured by the United States
or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in support thereof) having
maturities of not more than one year from the date of acquisition, (ii)
marketable direct obligations issued by the District of Columbia or any
state of the United States or any political subdivision of the District
of Columbia or any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at
the time of acquisition, having one of the two highest ratings
obtainable from either S&P or Moody's, (iii) Dollar denominated time
deposits and certificates of deposit of any commercial bank having, or
which is the principal banking subsidiary of a bank holding company
having, a long-term unsecured Debt Rating of at least "A" or the
equivalent thereof from S&P or "A2" or the equivalent thereof from
Moody's with maturities of not more than one year from the date of
acquisition by such Person, (iv) repurchase obligations with a term of
not more than 30 days for underlying securities of the types described
in clause (i) above entered into with any bank meeting the
qualifications specified in clause (iii) above, (v) commercial paper
issued by any Person incorporated in the United States rated at least
A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent
thereof by Moody's
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and in each case maturing not more than one year after the date of
acquisition by such Person, (vi) investments in money market funds
substantially all of whose assets are comprised of securities of the
types described in clauses (i) through (v) above, and (vii) in the case
of any Foreign Subsidiary, (A) direct obligations of the sovereign
nation (or any agency thereof) in which such Foreign Subsidiary is
organized or is conducting business or in obligations fully and
unconditionally guaranteed by such sovereign nation (or any agency
thereof) having maturities of not more than one year from the date of
acquisition or (B) obligations of the type and maturity described in
clauses (iii), (iv) or (v) above of foreign obligors, which obligations
or obligors (or the parents of such obligors) have ratings described in
such clauses or equivalent ratings from comparable foreign rating
agencies.
"CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.
"Change of Control" means (i) any Person or "group" (within
the meaning of Sections 13(d) and 14(d) under the Securities Exchange
Act, as in effect on the Closing Date), other than a Permitted Holder,
shall (A) have acquired beneficial ownership of 30% or more on a fully
diluted basis of the voting and/or economic interest in the Borrower's
capital stock or (B) obtained the power (whether or not exercised) to
elect a majority of the Borrower's directors or (ii) the Board of
Directors of the Borrower shall cease to consist of a majority of
Continuing Directors.
"Change of Law" has the meaning given in Section 11.1(f)(i).
"Closing Date" means the date all conditions set forth in
Article VI are satisfied.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means all property (whether real or personal)
with respect to which any security interests have been granted (or
purported to be granted) pursuant to any Security Document, including,
without limitation, all Pledge Agreement Collateral, all Security
Agreement Collateral, all Mortgaged Properties and all cash and Cash
Equivalents delivered as collateral pursuant to Section 5.2 or 11.2(d).
"Collateral Agent" means the Administrative Agent acting as
collateral agent for the Secured Creditors pursuant to the Security
Documents.
"Commitment" means any of the commitments of any Lender,
(i.e., whether the Term Loan Commitment, or the Revolving Loan
Commitment).
"Commitment Fee" has the meaning given in Section 4.1(a).
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"Commitment Fee Rate" has the meaning given in the definition
of "Applicable Margin".
"Company" means the Borrower or any Subsidiary of the Borrower
and "Companies" means the Borrower and all of its Subsidiaries.
"Consolidated Capital Expenditures" means, for any period, all
Capital Expenditures of the Companies on a consolidated basis for such
period.
"Consolidated EBITDA" means, for any period, an amount equal
to the sum of:
(i) (A) the net income of the Credit Parties on a
consolidated basis, determined in accordance with
GAAP ("Consolidated Net Income"), excluding
(B) non-operating gains and losses,
(C) non-cash charges comprising (1) impairment of assets,
(2) cumulative effects of changes in accounting
principles (all of which are to be in accordance with
GAAP), or (3) any non-cash stock compensation, plus
(ii) (A) Consolidated Interest Expense, plus
(B) tax expense, plus
(C) depreciation and amortization expense, plus
(D) transaction expenses incurred in connection with the
closing of this Agreement that are not capitalized,
plus
(E) other extraordinary and non-recurring items approved
by the Administrative Agent (including litigation
charges relating to the Claude Shoch matter), plus
(F) prepayment premiums incurred in retiring the
Indenture Indebtedness, plus
(H) unamortized fees related to the Borrower's
indebtedness to be satisfied from the initial Loans
made under this Agreement, plus
(iii) Acquired EBITDA.
"Consolidated Fixed Charge Coverage Ratio" (or "Fixed Charge
Coverage Ratio") means, at any date, the ratio of (a) Consolidated
EBITDA for the Test Period then most recently ended less Consolidated
Capital Expenditures for such Test Period to (b) Consolidated Fixed
Charges for such Period.
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"Consolidated Fixed Charges" means, for any period, the sum of
the following (without duplication): (i) Consolidated Interest Expense
paid or required to be paid in cash for such period; (ii) income and
franchise taxes paid or required to be paid in cash by the Companies on
a consolidated basis during such period; (iii) all scheduled payments
of principal made or required to be made with respect to all
Indebtedness (including the principal portion of Capitalized Leases
Obligations) of the Companies on a consolidated basis during such
period but excluding payments made to satisfy the Indenture
Indebtedness; and (iv) all Restricted Payments made or required to be
made by the Companies on a consolidated basis during such period.
"Consolidated Indebtedness" means, at any time, the principal
amount of all Indebtedness of the Companies at such time; provided, (i)
that the amount of Indebtedness in respect of Interest Rate Protection
Agreements and Other Hedging Agreements at any time, shall be the
unrealized net loss position, if any, of the Borrower and/or its
Subsidiaries thereunder on a marked-to-market basis determined no more
than one month prior to such time, and (ii) the Indenture Indebtedness
shall be deemed to be zero so long as the Borrower has complied with
Sections 6.12 and 8.8(b).
"Consolidated Interest Expense" means, for any period, the
total consolidated interest expense of the Companies for such period
(calculated without regard to any limitations on the payment thereof)
plus, without duplication, that portion of Capitalized Lease
Obligations of the Companies representing the interest factor for such
period; provided that the amortization of deferred financing, legal and
accounting costs with respect to this Agreement shall be excluded from
Consolidated Interest Expense to the extent same would otherwise have
been included therein.
"Consolidated Net Income" has the meaning given in the
definition of "Consolidated EBITDA."
"Consolidated Net Worth" means, at any time, for the Borrower
and its Subsidiaries, on a consolidated basis, shareholders' equity at
such time.
"Consolidated Total Leverage Ratio" (and sometimes also
referred to as the "Total Leverage Ratio" or "TLR") means, at any time,
the ratio of Consolidated Indebtedness at such time to Consolidated
EBITDA for the Test Period then most recently ended.
"Contingent Obligation" means, as to any Person, any
obligation of such Person as a result of such Person being a general
partner of the other Person, unless the underlying obligation is
expressly made non-recourse as to such general partner, and any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any
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manner, whether directly or indirectly, including, without limitation,
any obligation of such Person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting
direct or indirect security therefor, (ii) to advance or supply funds
(x) for the purchase or payment of any such primary obligation or (y)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor,
(iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the holder of
such primary obligation against loss in respect thereof; provided,
however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good
faith.
"Continuing Directors" means the directors of the Borrower on
the Closing Date and each other director if such director's nomination
for election to the Board of Directors of the Borrower is recommended
by a majority of the then Continuing Directors.
"Control Agreement" means a "Control Agreement" as defined in
the Security Agreement.
"Credit Documents" means this Agreement, the Disclosure
Letter and, after the execution and delivery thereof pursuant to the
terms of this Agreement, each Note, the Subsidiaries Guaranty and
each Security Document.
"Credit Event" means the making of any Loan or the issuance of
any Letter of Credit.
"Credit Party" means the Borrower and each Subsidiary
Guarantor.
"Debt Rating" has the meaning given in Section 13.16.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means any Lender with respect to which a
Lender Default is in effect.
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"Disclosure Letter" means the Disclosure Letter of even date
herewith delivered by the Borrower to the Administrative Agent and the
Lenders, a copy of which is attached as Schedule I.
"Dividend" means, with respect to any Person, that such Person
has declared or paid a dividend or returned any equity capital to its
stockholders, partners or members or authorized or made any other
distribution, payment or delivery of property (other than common stock
of such Person) or cash to its stockholders, partners or members as
such, or redeemed, retired, purchased or otherwise acquired, directly
or indirectly, for a consideration any shares of any class of its
capital stock or any partnership or membership interests outstanding on
or after the Closing Date (or any options or warrants issued by such
Person with respect to its capital stock or other equity interests), or
set aside any funds for any of the foregoing purposes, or shall have
permitted any of its Subsidiaries to purchase or otherwise acquire for
a consideration any shares of any class of the capital stock or any
partnership or membership interests of such Person outstanding on or
after the Closing Date (or any options or warrants issued by such
Person with respect to its capital stock or other equity interests).
Without limiting the foregoing, "Dividends" with respect to any Person
shall also include all payments made or required to be made by such
Person with respect to any stock appreciation rights, plans, equity
incentive or achievement plans or any similar plans or setting aside of
any funds for the foregoing purposes.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"Domestic Subsidiary" means each Subsidiary of the Borrower
that is incorporated under the laws of the United States or any State
thereof.
"Drawing" has the meaning given in Section 3.5(b).
"Eligible Transferee" means and include a commercial bank, an
insurance company, a finance company, a financial institution, any fund
that invests in loans or any other "accredited investor" (as defined in
Regulation D of the Securities Act), but in any event excluding the
Borrower and its Subsidiaries.
"Employee Benefit Plans" has the meaning given in Section
6.6(a).
"Employment Agreements" has the meaning given in Section
6.6(c).
"End Date" means, for any Margin Reduction Period, the last
day of such Margin Reduction Period.
infoUSA Credit Agreement
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"Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters,
directives, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental
Law or any permit issued, or any approval given, under any such
Environmental Law (hereafter, "Claims"), including, without limitation,
(a) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or
damages pursuant to any applicable Environmental Law, and (b) any and
all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in
connection with alleged injury or threat of injury to health, safety or
the environment due to the presence of Hazardous Materials.
"Environmental Law" means any Federal, state, foreign or local
statute, law, rule, regulation, ordinance, code, guideline, written
policy and rule of common law now or hereafter in effect and in each
case any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent decree or judgment,
relating to the environment, employee health and safety or Hazardous
Materials, including, without limitation, CERCLA; RCRA; the Federal
Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.; the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Air
Act, 42 U.S.C. Section 7401 et seq.; the Safe Drinking Water Act, 42
U.S.C. Section 3803 et seq.; the Oil Pollution Act of 1990, 33 U.S.C.
Section 2701 et seq.; the Emergency Planning and the Community
Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the
Hazardous Material Transportation Act, 49 U.S.C. Section 1801 et seq.
and the Occupational Safety and Health Act, 29 U.S.C. Section 651 et
seq.; and any state and local or foreign counterparts or equivalents.
"ERISA" means the Employee Retirement Income Security Act of
1974.
"ERISA Affiliate" means each person (as defined in Section
3(9) of ERISA) which together with the Borrower or a Subsidiary of the
Borrower would be deemed to be a "single employer" (i) within the
meaning of Section 414(b), (c), (m) or (o) of the Code or (ii) as a
result of the Borrower or a Subsidiary of the Borrower being or having
been a general partner of such person.
"Eurodollar Loan" means each Loan (other than any Swingline
Loan) designated as such by the Borrower at the time of the incurrence
thereof or conversion thereto.
"Eurodollar Base Rate" means, for any Borrowing of Eurodollar
Loans, an interest rate per annum appearing on Bloomberg British
Bankers Association LIBOR
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Rates Page (or any successor page) as the London interbank offered rate
for deposits in U.S. dollars at 11:00 A.M. (London time) two Business
Days before the first day of the applicable Interest Period for a
period equal to such Interest Period (provided that, if for any reason
such rate is not available, the term "Eurodollar Rate" shall mean the
rate per annum appearing on such other comparable page as may, in the
opinion of the Administrative Agent, replace Bloomberg British Bankers
Association LIBOR Rates Page for the purpose of displaying such rate).
"Eurodollar Rate" means the rate per annum (rounded upward, if
necessary, to the nearest 1/100th of 1%) and determined pursuant to the
following formula:
Eurodollar Eurodollar Base Rate
Rate = ------------------------------------ + Applicable Margin
100% - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means, for any day during any
Interest Period, the reserve percentage (expressed as a decimal,
rounded to the next 1/100th of 1%) in effect on such day, whether or
not applicable to any Bank, under regulations issued from time to time
by the Board of Governors of the Federal Reserve System for determining
the maximum reserve requirement (including any emergency, supplemental
or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities"). The
Eurodollar Rate for each outstanding Eurodollar Loan shall be adjusted
automatically as of the effective date of any change in the Eurodollar
Reserve Percentage. The determination of the Eurodollar Reserve
Percentage and the Eurodollar Rate by the Administrative Agent shall be
conclusive in the absence of manifest error.
"Event of Default" has the meaning given in Section 11.1.
"Federal Funds Rate" means, for any day, the rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank on the Business Day next succeeding such day; provided that (a) if
such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate charged to
the Agent on such day on such transactions as determined by the
Administrative Agent.
"Fees" means all amounts payable pursuant to or referred to in
Section 4.1.
"Foreign Pension Plan" means any plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or
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maintained outside the United States by the Borrower or any one or more
of its Subsidiaries primarily for the benefit of employees of the
Borrower or such Subsidiaries residing outside the United States, which
plan, fund or other similar program provides, or results in, retirement
income, a deferral of income in contemplation of retirement or payments
to be made upon termination of employment, and which plan is not
subject to ERISA or the Code.
"Foreign Subsidiary" means each Subsidiary of the Borrower
which is not a Domestic Subsidiary.
"Fronting Fee" has the meaning given in Section 4.1(c).
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board of such other principles as may be approved by a significant
segment of the accounting professions, that are applicable to the
circumstances as of the date of determination, consistently applied.
"Hazardous Materials" means (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is friable,
urea formaldehyde foam insulation, transformers or other equipment that
contains dielectric fluid containing levels of polychlorinated
biphenyls, and radon gas; (b) any chemicals, materials or substances
defined as or included in the definition of "hazardous substances,"
"hazardous waste," "hazardous materials," "extremely hazardous
substances," "restricted hazardous waste," "toxic substances," "toxic
pollutants," "contaminants," or "pollutants," or words of similar
import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, the Release of which is prohibited,
limited or regulated by any governmental authority.
"Inactive Subsidiary" means each of Direct Magi Inc. and DBA
FL Inc., each a New Jersey corporation and a Wholly-Owned Domestic
Subsidiary of the Borrower.
"Indebtedness" means, as to any Person, without duplication,
(i) all indebtedness (including principal, interest, fees and charges)
of such Person for borrowed money or for the deferred purchase price of
property or services, (ii) the maximum amount available to be drawn
under all letters of credit, bankers' acceptances and similar
obligations issued for the account of such Person and all unpaid
drawings in respect of such letters of credit, bankers' acceptances and
similar obligations, (iii) all Indebtedness of the types described in
clause (i), (ii), (iv), (v), (vi) or (vii) of this definition secured
by any Lien on any property owned by such Person, whether or not such
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Indebtedness has been assumed by such Person (provided that, if the
Person has not assumed or otherwise become liable in respect of such
Indebtedness, such Indebtedness shall be deemed to be in an amount
equal to the fair market value of the property to which such Lien
relates as determined in good faith by such Person), (iv) the aggregate
amount required to be capitalized under leases under which such Person
is the lessee, (v) all obligations of such Person to pay a specified
purchase price for goods or services, whether or not delivered or
accepted, i.e., take-or-pay and similar obligations, (vi) all
Contingent Obligations of such Person, and (vii) all obligations under
any Interest Rate Protection Agreement, any Other Hedging Agreement or
under any similar type of agreement. Notwithstanding the foregoing,
Indebtedness shall not include trade payables and accrued expenses
incurred by any Person in accordance with customary practices and in
the ordinary course of business of such Person.
"Indenture" means the Indenture, dated as of June 18, 1998, by
and between the Borrower and the Indenture Trustee.
"Indenture Indebtedness" means all obligations of the Borrower
under the Indenture.
"Indenture Trustee" means U.S. Bank National Association,
successor to State Street Bank and Trust Company of California, N.A.,
as trustee, under the Indenture.
"Intercompany Loan" means each intercompany loan or advance
between or among the Borrower and its Subsidiaries or between or among
Subsidiaries of the Borrower.
"Intercompany Note" means a promissory note, in the form of
Exhibit J or in such other form as is reasonably acceptable to the
Administrative Agent, evidencing Intercompany Loans.
"Interest Determination Date" means, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of
any Interest Period relating to such Eurodollar Loan.
"Interest Period" has the meaning given in Section 2.9.
"Interest Rate Protection Agreement" means any interest rate
swap agreement, interest rate cap agreement, interest collar agreement,
interest rate hedging agreement or other similar agreement or
arrangement.
"Investments" has the meaning given in Section 10.5.
"Issuing Lender" means Wells Fargo.
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"L/C Supportable Obligations" means (i) obligations of the
Borrower or any of its Subsidiaries with respect to workers
compensation, surety bonds and other similar statutory obligations and
(ii) such other obligations of the Borrower or any of its Subsidiaries
as are reasonably acceptable to the Issuing Lender and otherwise
permitted to exist pursuant to the terms of this Agreement.
"Leaseholds" of any Person means all the right, title and
interest of such Person as lessee or licensee in, to and under leases
or licenses of land, improvements and/or fixtures.
"Lender" means each financial institution executing this
Agreement as a lender, as well as any Person that becomes a "Lender"
hereunder pursuant to Sections 2.13 or 13.4(b).
"Lender Default" means (i) the refusal (which has not been
retracted) or the failure of a Lender to make available its portion of
any Borrowing (including any Mandatory Borrowing) or to fund its
portion of any unreimbursed payment under Section 3.4(c) or (ii) a
Lender having notified in writing the Borrower and/or the
Administrative Agent that such Lender does not intend to comply with
its obligations under Sections 2.1(a), 2.1(b) or 2.1(d) or Article III.
"Letter of Credit" shall have the meaning provided in Section
3.1(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 4.1(b).
"Letter of Credit Outstandings" means, at any time, the sum of
(i) the Stated Amount of all outstanding Letters of Credit and (ii) the
aggregate amount of all Unpaid Drawings in respect of all Letters of
Credit.
"Letter of Credit Request" shall have the meaning provided in
Section 3.3(a).
"Lien" means any mortgage, security interest, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), preference, priority or other security agreement
of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any financing or
similar statement or notice filed under the UCC or any other similar
recording or notice statute, and any lease having substantially the
same effect as any of the foregoing).
"Loan" means each Term Loan, each Revolving Loan and each
Swingline Loan.
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"Mandatory Borrowing" shall have the meaning provided in
Section 2.1(d).
"Margin Reduction Period" means each period which shall
commence on the date occurring after the Closing Date upon which
respective officer's certificate is delivered pursuant to Section
9.1(f) and which shall end on the date of actual delivery of the next
officer's certificates pursuant to Section 9.1(f) or the latest date on
which such next officer's certificate is required to be so delivered.
"Margin Stock" shall have the meaning provided in Regulation
U.
"Material Adverse Effect" means (i) a material adverse effect
on the business, operations, properties, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower or of the
Companies taken as a whole, or (ii) a material adverse effect on the
rights or remedies of the Lenders or the Administrative Agent hereunder
or under any other Credit Document or on the ability of any Credit
Party to perform its obligations to the Lenders or the Administrative
Agent hereunder or under any other Credit Document.
"Maturity Date" means the Term Loan Maturity Date, the
Revolving Loan Maturity Date or the Swingline Expiry Date, as the case
may be.
"Maximum Swingline Amount" means $5,000,000.
"Minimum Borrowing Amount" means (i) for Eurodollar Loans,
$5,000,000, (ii) for Base Rate Loans other than Swingline Loans,
$500,000 and (iii) for Swingline Loans, $100,000.
"Moody's" means Moody's Investors Service, Inc., or any
successor thereto.
"Mortgage" means a mortgage, leasehold mortgage, deed of
trust, leasehold deed of trust, deed to secure debt, leasehold deed to
secure debt or similar security instrument.
"Mortgaged Property" means any Real Property owned or leased
by the Borrower or any Subsidiary Guarantor which is encumbered (or
required to be encumbered) by a Mortgage.
"Net Acquisition Consideration" means the Total Consideration
for a Permitted Acquisition (i) less cash and Cash Equivalents that are
acquired in such Permitted Acquisition, and (ii) plus the present value
of any earn-out, non-compete or deferred compensation or purchase price
adjustments, and (iii) less or plus any working capital adjustments, as
applicable, and as provided in Section 9.15.
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"Net Debt Proceeds" means, with respect to any incurrence of
Indebtedness for borrowed money, the cash proceeds (net of underwriting
discounts and commissions and other reasonable costs associated
therewith) received by the respective Person from the respective
incurrence of such Indebtedness for borrowed money.
"Net Equity Proceeds" means, with respect to each issuance or
sale of any equity by any Person or any capital contribution to such
Person, the cash proceeds (net of underwriting discounts and
commissions and other reasonable costs associated therewith) received
by such Person from the respective sale or issuance of its equity or
from the respective capital contribution. The term "Net Equity
Proceeds" also shall include the amount of Net Debt Proceeds received
by the Borrower from the issuance or incurrence of Indebtedness for
borrowed money under Section 10.4(k) which is convertible into shares
of the Borrower's capital stock, although such Net Equity Proceeds
shall not be considered to be received by the Borrower until such
conversion occurs.
"Net Recovery Event Proceeds" means, with respect to any
Recovery Event, the cash proceeds (net of reasonable costs and taxes
incurred in connection with such Recovery Event) received by the
respective Person in connection with such Recovery Event.
"Net Sale Proceeds" means, for any Asset Sale, the gross cash
proceeds (including any cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and
when received) received from such sale of assets, net of the reasonable
costs of such sale (including fees and commissions, payments of
unassumed liabilities relating to the assets sold and required payments
of any Indebtedness (other than Indebtedness secured pursuant to the
Security Documents) which is secured by the respective assets which
were sold), and the incremental taxes paid or payable as a result of
such Asset Sale.
"Non-Defaulting Lender" and "Non-Defaulting RL Lender" means
and include each Lender or RL Lender, as the case may be, other than a
Defaulting Lender.
"Note" means each Term Note, each Revolving Note and the
Swingline Note.
"Notice of Borrowing" shall have the meaning provided in
Section 2.3(a).
"Notice of Conversion" shall have the meaning provided in
Section 2.6.
"Notice Office" means the office of the Administrative Agent
located at 1740 Broadway, MAC C7300-034, Denver, Colorado 80209, Attn:
Kevin
infoUSA Credit Agreement
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Rapp, or such other office or person as the Administrative Agent may
hereafter designate in writing as such to the other parties hereto.
"Obligations" means all amounts owing to the Administrative
Agent, the Collateral Agent, the Issuing Lender, the Swingline Lender
or any Lender pursuant to the terms of this Agreement or any other
Credit Document.
"Operating Leases" means all leases for real or personal
property that are not Capitalized Lease Obligations.
"Other Hedging Agreement" means any foreign exchange
contracts, currency swap agreements, commodity agreements or other
similar agreements or arrangements designed to protect against the
fluctuations in currency values.
"Participant" shall have the meaning provided in Section
3.4(a).
"Payment Office" means the office of the Administrative Agent
located at 1740 Broadway, MAC C7300-034, Denver, Colorado 80209, Attn:
Kevin Rapp, or such other office as the Administrative Agent may
hereafter designate in writing as such to the other parties hereto.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor
thereto.
"Permitted Acquisition" means the acquisition by the Borrower
or a Wholly-Owned Subsidiary thereof of assets constituting a business,
division or product line of any Person not already a Subsidiary of the
Borrower or of 100% of the capital stock of any such Person (including
by way of merger), which Person shall, as a result of such stock
acquisition, become a Wholly-Owned Subsidiary of the Borrower (or shall
be merged with and into a Wholly-Owned Subsidiary of the Borrower)
(such assets or Person are referred to as an "Acquired Entity or
Business"), provided that (in each case):
(A) the consideration paid by the Borrower or such
Wholly-Owned Subsidiary consists solely of cash (including
proceeds of Loans), the issuance or incurrence of Indebtedness
otherwise permitted by Section 10.4, the issuance of common
stock of the Borrower or Qualified Preferred Stock of the
Borrower to the extent no Default or Event of Default exists
pursuant to Section 11.1(j) or would result therefrom and the
assumption/ acquisition of any Indebtedness (calculated at
face value) which is permitted to remain outstanding in
accordance with the requirements of Section 10.4;
(B) in the case of the acquisition of 100% of the
capital stock of any Person (including by way of merger), such
Person shall own no
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capital stock of any other Person (other than de minimis
amounts) unless either (x) such Person owns 100% of the
capital stock of such other Person or (y) (1) such Person
and/or its Wholly-Owned Subsidiaries own at least 80% of the
consolidated assets of such Person and its Subsidiaries and
(2) any non-Wholly Owned Subsidiary of such Person was
non-Wholly Owned prior to the date of such Permitted
Acquisition of such Person;
(C) the Acquired Entity or Business acquired pursuant
to the respective Permitted Acquisition is in a business
permitted by Section 10.13; and
(D) all applicable requirements of Sections 9.15,
10.2 and 10.14 applicable to Permitted Acquisitions are
satisfied.
Notwithstanding anything to the contrary contained in the immediately
preceding sentence, an acquisition which does not otherwise meet the
requirements set forth above in the definition of "Permitted
Acquisition" shall constitute a Permitted Acquisition if, and to the
extent, the Required Lenders agree in writing that such acquisition
shall constitute a Permitted Acquisition for purposes of this
Agreement.
"Permitted Encumbrance" means, with respect to any Mortgaged
Property, such exceptions to title as are set forth in the respective
mortgage title insurance policy delivered with respect thereto, all of
which exceptions must be acceptable to the Administrative Agent in its
reasonable discretion.
"Permitted Holders" means Vinod Gupta and his spouse, their
lineal descendants and adopted children and spouses of their lineal
descendants and adopted children, any foundation controlled by any of
the foregoing persons, any trusts for the benefit of any of the
foregoing persons and any Affiliates of the foregoing persons.
"Permitted Indebtedness" has the meaning given in Section
10.4.
"Permitted Liens" shall have the meaning provided in Section
10.1.
"Person" means any individual, partnership, joint venture,
firm, corporation, association, limited liability company, trust or
other enterprise or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means any pension plan as defined in Section 3(2) of
ERISA, which is maintained or contributed to by (or to which there is
an obligation to contribute of) the Borrower or a Subsidiary of the
Borrower or an ERISA Affiliate, and each such plan for the six year
period immediately following the latest date on which the
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Borrower, a Subsidiary of the Borrower or an ERISA Affiliate
maintained, contributed to or had an obligation to contribute to such
plan, except any such plan where the participants are paid solely from
the general assets of, and are general unsecured creditors with respect
to, the Borrower, Subsidiary of the Borrower or an ERISA Affiliate.
"Pledge Agreement" means the Pledge Agreement of even date
herewith by the Credit Parties in favor of the Collateral Agent..
"Pledge Agreement Collateral" means all "Collateral" as
defined in the Pledge Agreement.
"Projections" means the projections prepared by the Borrower
as set forth in that certain infoUSA, $160,000,000 Senior Secured
Credit Facilities Confidential Information Memorandum, January 2004,
relating to the financing hereunder.
"Qualified Preferred Stock" means any preferred stock of the
Borrower so long as the terms of any such preferred stock (i) do not
contain any mandatory put, redemption, repayment, sinking fund or other
similar provision, except upon the occurrence of a change of control so
long as the terms thereof do not require any such redemption or other
action unless (and until) all Obligations have been paid in full and
the Total Commitment and all Letters of Credit have been terminated or
the requisite consents under this Agreement have been obtained to
permit such redemption or other action, (ii) do not require the cash
payment of dividends to the extent that the payment thereof would not
be permitted at such time pursuant to this Agreement, (iii) do not
contain any operating or financial maintenance covenants, (iv) do not
grant the holders thereof any voting rights (prior to the conversion
into common stock of the Borrower, if applicable) except for (A) voting
rights required to be granted to such holders under applicable law and
(B) limited customary voting rights on fundamental matters such as
mergers, consolidations, sales of all or substantially all of the
assets of the Borrower, or liquidations involving the Borrower, and (v)
are otherwise reasonably satisfactory to the Administrative Agent.
"Quarterly Payment Date" means the last Business Day of each
December, March, June and September occurring after the Closing Date,
commencing on June 30, 2004.
"RCRA" means the Resource Conservation and Recovery Act, as
the same may be amended from time to time, 42 U.S.C. Section 6901 et
seq.
"Real Property" of any Person means all the right, title and
interest of such Person in and to land, improvements and fixtures,
including Leaseholds.
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"Recovery Event" means the receipt by any Company of any cash
insurance proceeds or condemnation awards payable (i) by reason of
theft, loss, physical destruction, damage, taking or any other similar
event with respect to any property or assets of any Company and (ii)
under any policy of insurance required to be maintained under Section
9.3.
"Register" shall have the meaning provided in Section 13.14.
"Regulation D", "Regulation T", "Regulation U" or "Regulation
X", as the case may be, means Regulation D, T, U or X, as the case may
be, of the Board of Governors of the Federal Reserve System as from
time to time in effect and any successor to all or a portion thereof.
"Release" means the disposing, discharging, injecting,
spilling, pumping, leaking, leaching, dumping, emitting, escaping,
emptying, pouring or migrating, into or upon any land or water or air,
or otherwise entering into the environment.
"Replaced Lender" shall have the meaning provided in Section
2.13.
"Replacement Lender" shall have the meaning provided in
Section 2.13.
"Reportable Event" means an event described in Section 4043(c)
of ERISA with respect to a Plan that is subject to Title IV of ERISA
other than those events as to which the 30-day notice period is waived
under subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section
4043 and as to which an advance notice to the PBGC of the event is not
required under Section 4043 of ERISA.
"Required Lenders" means two or more Non-Defaulting Lenders
the sum of whose outstanding Term Loans and Revolving Loan Commitments
(or after the termination thereof, outstanding Revolving Loans and RL
Percentages of (x) outstanding Swingline Loans and (y) Letter of Credit
Outstandings) represent more than 50% of the sum of (i) the aggregate
principal amount of all outstanding Term Loans of Non-Defaulting
Lenders and (ii) the Total Revolving Loan Commitment less the Revolving
Loan Commitments of all Defaulting Lenders (or after the termination
thereof, the sum of the then aggregate principal amount of all
outstanding Revolving Loans of Non-Defaulting Lenders and the aggregate
RL Percentages of all Non-Defaulting Lenders of the total (x) aggregate
principal amount of outstanding Swingline Loans and (y) Letter of
Credit Outstandings at such time).
"Restricted Payments" means in respect of a period, (i) any
and all Dividends authorized, declared or paid with respect to any
Company pursuant
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to Sections 10.3(c), (d), (e) and (f), and (ii) any and all payments
("earnout payments") required to be made by the Borrower or any
Subsidiary which are based on the earnings or revenues relating to any
Permitted Acquisitions.
"Revolving Loan" shall have the meaning provided in Section
2.1(b).
"Revolving Loan Commitment" means, (i) for each Lender, the
amount shown on the Register as (a) reduced from time to time pursuant
to Sections 4.2, 4.3 and/or 11.2, or (b) adjusted from time to time as
a result of assignments to or from such Lender pursuant to Section 2.13
or 13.4(b), and (ii) for all of the Lenders, $50,000,000.
"Revolving Loan Maturity Date" means March 25, 2007.
"Revolving Note" shall have the meaning provided in Section
2.5(a).
"RL Lender" means each Lender with a Revolving Loan Commitment
or with outstanding Revolving Loans.
"RL Percentage" of any RL Lender at any time means a fraction
(expressed as a percentage) the numerator of which is the Revolving
Loan Commitment of such RL Lender at such time and the denominator of
which is the Total Revolving Loan Commitment at such time, provided
that if the RL Percentage of any RL Lender is to be determined after
the Total Revolving Loan Commitment has been terminated, then the RL
Percentages of such RL Lender shall be determined immediately prior
(and without giving effect) to such termination.
"S&P" means Standard & Poor's Ratings Services, or any
successor thereto.
"SEC" shall have the meaning provided in Section 9.1(h).
"Section 5.4(b)(ii) Certificate" shall have the meaning
provided in Section 5.4(b)(ii).
"Secured Creditors" shall have the meaning assigned that term
in the Security Documents.
"Securities Act" means the Securities Act of 1933.
"Securities Exchange Act" means the Securities Exchange Act of
1934.
"Security Agreement" means that certain Security Agreement by
the Credit Parties in favor of the Collateral Agent of even date
herewith.
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"Security Agreement Collateral" means all "Collateral" as
defined in the Security Agreement.
"Security Document" means and include each of the Security
Agreement, the Pledge Agreement, each Mortgage and, after the execution
and delivery thereof, each Additional Security Document.
"Shareholders' Agreements" shall have the meaning provided in
Section 6.6(b).
"Start Date" means, with respect to any Margin Reduction
Period, the first day of such Margin Reduction Period.
"Stated Amount" of each Letter of Credit means, at any time,
the maximum amount available to be drawn thereunder (in each case
determined without regard to whether any conditions to drawing could
then be met).
"Subsidiaries' Guaranty" means the Guaranty of even date
herewith by the Subsidiary Guarantors in favor of the Administrative
Agent.
"Subsidiary" means, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time stock of
any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the
time owned by such Person and/or one or more Subsidiaries of such
Person and (ii) any partnership, limited liability company,
association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity
interest at the time.
"Subsidiary Guarantor" means each Domestic Subsidiary of the
Borrower (other than an Inactive Subsidiary) and, to the extent
required by Section 9.13, each Foreign Subsidiary of the Borrower.
"Swingline Expiry Date" means that date which is five Business
Days prior to the Revolving Loan Maturity Date.
"Swingline Lender" means Wells Fargo.
"Swingline Loan" shall have the meaning provided in Section
2.1(c).
"Swingline Note" shall have the meaning provided in Section
2.5(a).
"Taxes" shall have the meaning provided in Section 5.4(a).
"Term Loan" shall have the meaning provided in Section 2.1.
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"Term Loan Commitment" means, (i) for each Lender, the amount
shown on the Register, as adjusted pursuant to Section 4.3 and/or
terminated pursuant to Section 11.2, or adjusted from time to time as a
result of assignments to or from such Lender pursuant to Sections 2.13
and/or 13.4(b), and (ii) for all of the Lenders, $120,000,000.
"Term Loan Maturity Date" means March 25, 2009.
"Term Loan Scheduled Repayment" shall have the meaning
provided in Section 5.2(b).
"Term Note" shall have the meaning provided in Section 2.5(a).
"Test Date" means, with respect to any Start Date, the last
day of the most recent fiscal quarter of the Borrower ended immediately
prior to such Start Date.
"Test Period" means each period of four consecutive fiscal
quarters of the Borrower then last ended (in each case taken as one
accounting period).
"Total Acquisition Amount" shall have the meaning provided in
Section 9.15(a)(iv).
"Total Commitment" means, at any time, the sum of the
Commitments of each of the Lenders.
"Total Consideration" means the aggregate consideration for
any proposed Permitted Acquisition, including, without limitation, (I)
the aggregate principal amount of any Indebtedness assumed, incurred or
issued in connection therewith, (II) the fair market value (as
determined in good faith by the Board of Directors of the Borrower) of
any common stock or Qualified Preferred Stock of the Borrower issued as
part of the purchase price therefor (provided that no Default or Event
of Default under Section 11.1(j) would result therefrom), and (III) the
present value of any aggregate amount paid and to be paid pursuant to
any earn-out, non-compete or deferred compensation or purchase price
adjustments.
"Total Leverage Ratio" - see definition of "Consolidated Total
Leverage Ratio".
"Total Revolving Loan Commitment" means, at any time, the sum
of the Revolving Loan Commitments of each of the Lenders.
"Total Term Loan Commitment" means, at any time, the sum of
the Term Loan Commitments of each of the Lenders.
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"Total Unutilized Revolving Loan Commitment" means, at any
time, an amount equal to the remainder of (x) the Total Revolving Loan
Commitment then in effect less (y) the sum of the aggregate principal
amount of all Revolving Loans and Swingline Loans then outstanding plus
the then aggregate amount of all Letter of Credit Outstandings.
"Tranche" means the facility and commitments utilized in
making Loans hereunder, with there being three separate Tranches, i.e.,
Term Loans, Revolving Loans and Swingline Loans.
"Type" means the type of Loan determined with regard to the
interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" means the Uniform Commercial Code as from time to time
in effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the amount, if
any, by which the actuarial present value of the accumulated plan
benefits under the Plan determined on a plan termination basis in
accordance with actuarial assumptions at such time consistent with
those prescribed by the PBGC for purposes of Section 4044 of ERISA,
exceeds the market value of all plan assets allocable to such
liabilities under Title IV of ERISA (excluding any accrued but unpaid
contribution).
"United States" and "U.S." shall each mean the United States
of America.
"Unpaid Drawing" shall have the meaning provided for in
Section 3.5(a).
"Unutilized Revolving Loan Commitment" means, with respect to
any Lender at any time, such Lender's Revolving Loan Commitment at such
time less the sum of (i) the aggregate outstanding principal amount of
all Revolving Loans made by such Lender at such time and (ii) such
Lender's RL Percentage of the Letter of Credit Outstandings at such
time.
"Wells Fargo" means Wells Fargo Bank, National Association, in
its separate capacity as a Lender.
"Wholly-Owned Domestic Subsidiary" means each Domestic
Subsidiary of the Borrower that is also a Wholly-Owned Subsidiary of
the Borrower.
"Wholly-Owned Foreign Subsidiary" means each Foreign
Subsidiary of the Borrower that is also a Wholly-Owned Subsidiary of
the Borrower.
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"Wholly-Owned Subsidiary" means, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's
qualifying shares) is at the time owned by such Person and/or one or
more Wholly-Owned Subsidiaries of such Person and (ii) any partnership,
limited liability company, association, joint venture or other entity
in which such Person and/or one or more Wholly-Owned Subsidiaries of
such Person has a 100% equity interest at such time.
Section 1.2 Times; Other Definitional Terms; Rules of
Interpretation. All references to times of day in this Agreement shall be
references to Denver, Colorado time unless otherwise specifically provided. The
words "hereof", "herein" and "hereunder" and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. All accounting terms not otherwise
defined herein have the meanings assigned to them in accordance with GAAP. All
terms defined in the UCC and not otherwise defined herein have the meanings
assigned to them in the UCC. References to Articles, Sections, subsections,
Exhibits, Schedules and the like, are to Articles, Sections and subsections of,
or Exhibits or Schedules attached to, this Agreement unless otherwise expressly
provided. The words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation". Unless the context in which used
herein otherwise clearly requires, "or" has the inclusive meaning represented by
the phrase "and/or". Defined terms include in the singular number the plural and
in the plural number the singular. Reference to any agreement (including the
Credit Documents), document or instrument means such agreement, document or
instrument as amended or modified and in effect from time to time in accordance
with the terms thereof (and, if applicable, in accordance with the terms hereof
and the other Credit Documents), except where otherwise explicitly provided, any
reference to any promissory note includes any promissory note which is an
extension or renewal thereof or a substitute or replacement therefor. Reference
to any law, rule, regulation, order, decree, requirement, policy, guideline,
directive or interpretation means as amended, modified, codified, replaced or
reenacted, in whole or in part, and in effect on the determination date,
including rules and regulations promulgated thereunder
ARTICLE II
AMOUNT AND TERMS OF CREDIT
Section 2.1 The Commitments.
(a) TERM LOANS. Subject to and upon the terms and conditions
set forth herein, each Lender with a Term Loan Commitment severally
agrees to make a term loan or term loans (each a "Term Loan" and,
collectively, the "Term Loans") to the Borrower, which Term Loans:
(i) only may be incurred on the Closing Date,
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(ii) shall, at the option of the Borrower, be
incurred and maintained as, and/or converted into, Base Rate
Loans or Eurodollar Loans, provided that, except as otherwise
specifically provided in Section 2.10(b), all Term Loans
comprising the same Borrowing shall at all times be of the
same Type, and
(iii) shall be made by each such Lender in that
aggregate principal amount which does not exceed the Term Loan
Commitment of such Lender on the Closing Date. Once repaid,
Term Loans incurred hereunder may not be reborrowed.
(b) REVOLVING LOANS. Subject to and upon the terms and
conditions set forth herein, each Lender with a Revolving Loan
Commitment severally agrees to make, at any time and from time to time
on or after the Closing Date and prior to the Revolving Loan Maturity
Date, a revolving loan or revolving loans (each a "Revolving Loan" and,
collectively, the "Revolving Loans") to the Borrower, which Revolving
Loans:
(i) shall, at the option of the Borrower, be incurred
and maintained as, and/or converted into, Base Rate Loans or
Eurodollar Loans, provided that, except as otherwise
specifically provided in Section 2.10(b), all Revolving Loans
comprising the same Borrowing shall at all times be of the
same Type,
(ii) may be repaid and reborrowed in accordance with
the provisions hereof,
(iii) shall not exceed for any such Lender at any
time outstanding that aggregate principal amount which, when
added to the product of (x) such Lender's RL Percentage and
(y) the sum of (I) the aggregate amount of all Letter of
Credit Outstandings (exclusive of Unpaid Drawings which are
repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans)
at such time and (II) the aggregate principal amount of all
Swingline Loans (exclusive of Swingline Loans which are repaid
with the proceeds of, and simultaneously with the incurrence
of, the respective incurrence of Revolving Loans) then
outstanding, equals the Revolving Loan Commitment of such
Lender at such time, and
(iv) shall not exceed for all such Lenders at any
time outstanding that aggregate principal amount which, when
added to the sum of (I) the aggregate amount of all Letter of
Credit Outstandings (exclusive of Unpaid Drawings which are
repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans)
at such time and (II) the aggregate principal amount of all
Swingline Loans (exclusive of Swingline Loans which are repaid
with the proceeds of, and simultaneously with the incurrence
of, the respective incurrence of Revolving Loans) then
outstanding, equals the Total Revolving Loan Commitment at
such time.
(c) SWINGLINE LOANS. Subject to and upon the terms and
conditions set forth herein, the Swingline Lender agrees to make, at
any time and from time to time
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on or after the Closing Date and prior to the Swingline Expiry Date, a
revolving loan or revolving loans (each a "Swingline Loan" and,
collectively, the "Swingline Loans") to the Borrower, which Swingline
Loans:
(i) shall be made and maintained as Base Rate Loans,
(ii) may be repaid and reborrowed in accordance with
the provisions hereof,
(iii) shall not exceed in aggregate principal amount
at any time outstanding, when combined with the aggregate
principal amount of all Revolving Loans then outstanding and
the aggregate amount of all Letter of Credit Outstandings at
such time, an amount equal to the Total Revolving Loan
Commitment at such time, and
(iv) shall not exceed in aggregate principal amount
at any time outstanding the Maximum Swingline Amount.
Notwithstanding anything to the contrary contained in this Section
2.1(c), (i) the Swingline Lender shall not be obligated to make any
Swingline Loans at a time when a Lender Default exists unless the
Swingline Lender has entered into arrangements satisfactory to it and
the Borrower to eliminate the Swingline Lender's risk with respect to
the Defaulting Lender's or Lenders' participation in such Swingline
Loans, including by cash collateralizing such Defaulting Lender's or
Lenders' RL Percentage of the outstanding Swingline Loans and (ii) the
Swingline Lender shall not make any Swingline Loan after it has
received written notice from the Borrower or the Required Lenders
stating that a Default or an Event of Default exists and is continuing
until such time as the Swingline Lender shall have received written
notice (A) of rescission of all such notices from the party or parties
originally delivering such notice or notices or (B) of the waiver of
such Default or Event of Default by the Required Lenders.
(d) REFUNDING OF SWINGLINE LOANS. On any Business Day, the
Swingline Lender may, in its sole discretion, give notice to the RL
Lenders that the Swingline Lender's outstanding Swingline Loans shall
be funded with one or more Borrowings of Revolving Loans (provided that
such notice shall be deemed to have been automatically given upon the
occurrence of a Default or an Event of Default under Section 11.1(e) or
upon the exercise of any of the remedies provided in Section 11.2), in
which case one or more Borrowings of Revolving Loans constituting Base
Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made
on the immediately succeeding Business Day by all RL Lenders pro rata
based on each such RL Lender's RL Percentage (determined before giving
effect to any termination of the Revolving Loan Commitments pursuant to
Section 11.2) and the proceeds thereof shall be applied directly by the
Swingline Lender to repay the Swingline Lender for such outstanding
Swingline Loans. Each RL Lender hereby irrevocably agrees to make
Revolving Loans upon one Business Day's notice pursuant to each
Mandatory
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Borrowing in the amount and in the manner specified in the preceding
sentence and on the date specified in writing by the Swingline Lender
notwithstanding
(i) the amount of the Mandatory Borrowing may not
comply with the Minimum Borrowing Amount otherwise required
hereunder,
(ii) whether any conditions specified in Article VII
are then satisfied,
(iii) whether a Default or an Event of Default then
exists,
(iv) the date of such Mandatory Borrowing, and
(v) the amount of the Total Revolving Loan Commitment
at such time.
In the event that any Mandatory Borrowing cannot for any reason be made
on the date otherwise required above (including, without limitation, as
a result of the commencement of a proceeding under the Bankruptcy Code
with respect to the Borrower), then each RL Lender hereby agrees that
it shall forthwith purchase (as of the date the Mandatory Borrowing
would otherwise have occurred, but adjusted for any payments received
from the Borrower on or after such date and prior to such purchase)
from the Swingline Lender such participations in the outstanding
Swingline Loans as shall be necessary to cause the RL Lenders to share
in such Swingline Loans ratably based upon their respective RL
Percentages (determined before giving effect to any termination of the
Revolving Loan Commitments pursuant to Section 11.2), provided that (x)
all interest payable on the Swingline Loans shall be for the account of
the Swingline Lender until the date as of which the respective
participation is required to be purchased and, to the extent
attributable to the purchased participation, shall be payable to the
participant from and after such date and (y) at the time any purchase
of participations pursuant to this sentence is actually made, the
purchasing RL Lender shall be required to pay the Swingline Lender
interest on the principal amount of participation purchased for each
day from and including the day upon which the Mandatory Borrowing would
otherwise have occurred to but excluding the date of payment for such
participation, at the overnight Federal Funds Rate for the first three
days and at the rate otherwise applicable to Revolving Loans maintained
as Base Rate Loans hereunder for each day thereafter.
Section 2.2 Minimum Amount of Each Borrowing. The aggregate
principal amount of each Borrowing of Loans under a Tranche shall not be less
than the Minimum Borrowing Amount applicable to such Tranche. More than one
Borrowing may occur on the same date, but at no time shall there be outstanding
more than ten Borrowings of Eurodollar Loans in the aggregate.
Section 2.3 Notice of Borrowing.
(a) EURODOLLAR LOANS AND BASE RATE LOANS. Whenever the
Borrower desires to incur (x) Eurodollar Loans hereunder, the Borrower
shall give the
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Administrative Agent at the Notice Office at least three Business Days
prior notice of each Eurodollar Loan to be incurred hereunder and (y)
Base Rate Loans hereunder (excluding Swingline Loans and Revolving
Loans made pursuant to a Mandatory Borrowing), the Borrower shall give
the Administrative Agent at the Notice Office at least one Business
Day's prior notice of each Base Rate Loan to be incurred hereunder,
provided that (in each case) any such notice shall be deemed to have
been given on a certain day only if given before 10:00 A.M. on such
day. Each such notice (each a "Notice of Borrowing"), except as
otherwise expressly provided in Section 2.10, shall be irrevocable and
shall be given by the Borrower in writing, by telephone or by other
means acceptable to the Administrative Agent, promptly confirmed in
writing, in the form of Exhibit A, appropriately completed to specify
the aggregate principal amount of the Loans to be incurred pursuant to
such Borrowing, the date of such Borrowing (which shall be a Business
Day), whether the Loans being incurred pursuant to such Borrowing shall
constitute Term Loans or Revolving Loans and whether the Loans being
incurred pursuant to such Borrowing are to be initially maintained as
Base Rate Loans or, to the extent permitted hereunder, Eurodollar Loans
and, if Eurodollar Loans, the initial Interest Period to be applicable
thereto. The Administrative Agent shall promptly give each Lender which
is required to make Loans of the Tranche specified in the respective
Notice of Borrowing, notice of such proposed Borrowing, of such
Lender's proportionate share thereof and of the other matters required
by the immediately preceding sentence to be specified in the Notice of
Borrowing.
(b) SWINGLINE LOANS.
(i) Whenever the Borrower desires to incur Swingline
Loans hereunder, the Borrower shall give the Swingline Lender
no later than 12:00 Noon on the date that a Swingline Loan is
to be incurred, written notice or telephonic notice promptly
confirmed in writing of each Swingline Loan to be incurred
hereunder. Each such notice shall be irrevocable and specify
in each case (A) the date of Borrowing (which shall be a
Business Day) and (B) the aggregate principal amount of the
Swingline Loans to be incurred pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the
notice specified in Section 2.1(d), with the Borrower
irrevocably agreeing, by its incurrence of any Swingline Loan,
to the making of the Mandatory Borrowings as set forth in
Section 2.1(d).
(c) TELEPHONIC NOTICE. Without in any way limiting the
obligation of the Borrower to confirm in writing any telephonic notice
of any Borrowing or prepayment of Loans, the Administrative Agent or
the Swingline Lender, as the case may be, may act without liability
upon the basis of telephonic notice of such Borrowing or prepayment, as
the case may be, believed by the Administrative Agent or the Swingline
Lender, as the case may be, in good faith to be from the Chairman of
the Board, the President, the Chief Financial Officer, the Treasurer or
any Assistant
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Treasurer of the Borrower, or from any other authorized officer of the
Borrower designated in writing by the Borrower to the Administrative
Agent as being authorized to give such notices, prior to receipt of
written confirmation. In each such case, the Borrower hereby waives the
right to dispute the Administrative Agent's or Swingline Lender's
record of the terms of such telephonic notice of such Borrowing or
prepayment of Loans, as the case may be, absent manifest error.
Section 2.4 Disbursement of Funds. No later than 11:00 A.M. on
the date specified in each Notice of Borrowing (or (x) in the case of Swingline
Loans, no later than 2:00 P.M. on the date specified pursuant to Section
2.3(b)(i) or (y) in the case of Mandatory Borrowings, no later than 12:00 Noon
on the date specified in Section 2.1(d)), each Lender with a Commitment of the
applicable Tranche will make available its pro rata portion (determined in
accordance with Section 2.7) of each such Borrowing requested to be made on such
date (or in the case of Swingline Loans, the Swingline Lender will make
available the full amount thereof). All such amounts will be made available in
Dollars and in immediately available funds at the Payment Office, and the
Administrative Agent will, except in the case of Revolving Loans made pursuant
to a Mandatory Borrowing, make available to the Borrower at the Payment Office
the aggregate of the amounts so made available by the Lenders. Unless the
Administrative Agent shall have been notified by any Lender prior to the date of
Borrowing that such Lender does not intend to make available to the
Administrative Agent such Lender's portion of any Borrowing to be made on such
date, the Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on such date of Borrowing and the
Administrative Agent may (but shall not be obligated to), in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative Agent
by such Lender, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent shall promptly notify the Borrower and the
Borrower shall immediately pay such corresponding amount to the Administrative
Agent. The Administrative Agent also shall be entitled to recover on demand from
such Lender or the Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower until the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (i) if recovered from such Lender, the overnight Federal Funds
Rate for the first three days and at the interest rate otherwise applicable to
such Loans for each day thereafter and (ii) if recovered from the Borrower, the
rate of interest applicable to the respective Borrowing, as determined pursuant
to Section 2.8. Nothing in this Section 2.4 shall be deemed to relieve any
Lender from its obligation to make Loans hereunder or to prejudice any rights
which the Borrower may have against any Lender as a result of any failure by
such Lender to make Loans hereunder.
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Section 2.5 Notes.
(a) PROMISSORY NOTES OPTIONAL. The Borrower's obligation to
pay the principal of, and interest on, the Loans made by each Lender
shall be evidenced in the Register maintained by the Administrative
Agent pursuant to Section 13.14 and shall, if requested by such Lender,
also be evidenced (i) if Term Loans, by a promissory note duly executed
and delivered by the Borrower substantially in the form of Exhibit B,
with blanks appropriately completed in conformity herewith (each a
"Term Note" and, collectively, the "Term Notes"), (ii) if Revolving
Loans, by a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit C, with blanks appropriately
completed in conformity herewith (each a "Revolving Note" and,
collectively, the "Revolving Notes"), and (iii) if Swingline Loans, by
a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit D, with blanks appropriately
completed in conformity herewith (the "Swingline Note").
(b) TERM NOTES. The Term Note issued to each Lender that has a
Term Loan Commitment or outstanding Term Loans shall (i) be executed by
the Borrower, (ii) be payable to such Lender or its registered assigns
and be dated the Closing Date (or, if issued after the Closing Date, be
dated the date of issuance thereof), (iii) be in a stated principal
amount equal to the Term Loans made by such Lender on the Closing Date
(or, if issued after the Closing Date, be in a stated principal amount
equal to the outstanding principal amount of Term Loans of such Lender
at such time) and be payable in the outstanding principal amount of
Term Loans evidenced thereby, (iv) mature on the Term Loan Maturity
Date, (v) bear interest as provided in Section 2.8 in respect of the
Base Rate Loans and Eurodollar Loans, as the case may be, evidenced
thereby, (vi) be subject to voluntary prepayment as provided in Section
5.1, and mandatory repayment as provided in Section 5.2, and (vii) be
entitled to the benefits of this Agreement and the other Credit
Documents.
(c) REVOLVING NOTES. The Revolving Note issued to each Lender
that has a Revolving Loan Commitment or outstanding Revolving Loans
shall (i) be executed by the Borrower, (ii) be payable to such Lender
or its registered assigns and be dated the Closing Date (or, if issued
after the Closing Date, be dated the date of the issuance thereof),
(iii) be in a stated principal amount equal to the Revolving Loan
Commitment of such Lender (or, if issued after the termination thereof,
be in a stated principal amount equal to the outstanding Revolving
Loans of such Lender at such time) and be payable in the outstanding
principal amount of the Revolving Loans evidenced thereby, (iv) mature
on the Revolving Loan Maturity Date, (v) bear interest as provided in
Section 2.8 in respect of the Base Rate Loans and Eurodollar Loans, as
the case may be, evidenced thereby, (vi) be subject to voluntary
prepayment as provided in Section 5.1, and mandatory repayment as
provided in Section 5.2, and (vii) be entitled to the benefits of this
Agreement and the other Credit Documents.
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(d) SWINGLINE NOTE. The Swingline Note issued to the Swingline
Lender shall (i) be executed by the Borrower, (ii) be payable to the
Swingline Lender or its registered assigns and be dated the Closing
Date, (iii) be in a stated principal amount equal to the Maximum
Swingline Amount and be payable in the outstanding principal amount of
the Swingline Loans evidenced thereby from time to time, (iv) mature on
the Swingline Expiry Date, (v) bear interest as provided in Section 2.8
in respect of the Base Rate Loans evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 5.1, and mandatory
repayment as provided in Section 5.2, and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(e) RECORDS OF AMOUNTS OF LOANS. Each Lender will note on its
internal records the amount of each Loan made by it and each payment in
respect thereof and will prior to any transfer of any of its Notes
endorse on the reverse side thereof the outstanding principal amount of
Loans evidenced thereby. Failure to make any such notation or any error
in such notation shall not affect the Borrower's obligations in respect
of such Loans.
Section 2.6 Conversions.
(a) OPTION TO CONVERT. The Borrower shall have the option to
convert on any Business Day all or a portion equal to at least the
Minimum Borrowing Amount of the outstanding principal amount of Loans
(other than Swingline Loans which may not be converted pursuant to this
Section 2.6) made pursuant to one or more Borrowings (so long as of the
same Tranche) of one or more Types of Loans into a Borrowing (of the
same Tranche) of another Type of Loan, provided that,
(i) except as otherwise provided in Section 2.10(b),
Eurodollar Loans may be converted into Base Rate Loans only on
the last day of an Interest Period applicable to the Loans
being converted and no such partial conversion of Eurodollar
Loans shall reduce the outstanding principal amount of such
Eurodollar Loans made pursuant to a single Borrowing to less
than the Minimum Borrowing Amount applicable thereto,
(ii) unless the Required Lenders otherwise agree,
Base Rate Loans may only be converted into Eurodollar Loans if
no Default or Event of Default is in existence on the date of
the conversion, and
(iii) no conversion pursuant to this Section 2.6
shall result in a greater number of Borrowings of Eurodollar
Loans than is permitted under Section 2.2.
(b) NOTICE OF CONVERSION. Each such conversion shall be
effected by the Borrower giving the Administrative Agent, at the Notice
Office prior to 10:00 A.M. at least three Business Days prior notice
(each a "Notice of Conversion") specifying the Loans to be so
converted, the Borrowing or Borrowings pursuant to which such Loans
were made and, if to be converted into Eurodollar Loans, the Interest
Period to be
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initially applicable thereto. The Administrative Agent shall give each
Lender prompt notice of any such proposed conversion affecting any of
its Loans.
Section 2.7 Pro Rata Borrowings. All Borrowings of Term Loans
and Revolving Loans shall be incurred from the Lenders pro rata on the basis of
their Term Loan Commitments, or Revolving Loan Commitments, as the case may be.
It is understood that no Lender shall be responsible for any default by any
other Lender of its obligation to make Loans hereunder and that each Lender
shall be obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to make its Loans hereunder.
Section 2.8 Interest.
(a) BASE RATE. The Borrower agrees to pay interest in respect
of the unpaid principal amount of each Base Rate Loan from the date of
Borrowing thereof until the earlier of (i) the maturity thereof
(whether by acceleration or otherwise) and (ii) the conversion of such
Base Rate Loan to a Eurodollar Loan pursuant to Section 2.6 or 2.9, as
applicable, at a rate per annum which shall be equal to the sum of the
Applicable Margin plus the Base Rate each as in effect from time to
time.
(b) EURODOLLAR RATE. The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Eurodollar Loan from the
date of Borrowing thereof until the earlier of (i) the maturity thereof
(whether by acceleration or otherwise) and (ii) the conversion of such
Eurodollar Loan to a Base Rate Loan pursuant to Section 2.6, 2.9 or
2.10, as applicable, at a rate per annum which shall, during each
Interest Period applicable thereto, be equal to the sum of the
Applicable Margin plus the Eurodollar Rate for such Interest Period.
(c) DEFAULT RATE. While an Event of Default exists, the rate
otherwise applicable to any Loan shall bear interest at a rate per
annum equal to two percent (2%) per annum in excess of the rate
otherwise in effect to such Loan, and all other overdue amounts payable
hereunder or under any other Credit Document shall bear interest at a
rate per annum equal to the rate which is 2% in excess of the rate
applicable to Revolving Loans maintained as Base Rate Loans from time
to time. Interest which accrues under this Section 2.8(c) shall be
payable on demand.
(d) WHEN INTEREST DUE AND PAYABLE. Except as set forth in
subsection (c), accrued (and theretofore unpaid) interest shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on
each Quarterly Payment Date, (ii) in respect of each Eurodollar Loan,
on the last day of each Interest Period applicable thereto and, in the
case of an Interest Period in excess of three months, on each date
occurring at three month intervals after the first day of such Interest
Period, and (iii) in respect of each Loan, on any repayment or
prepayment (on the amount repaid or prepaid), at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand;
provided, however, that in the case of Base Rate Loans, interest shall
not be payable pursuant to preceding clause (iii) at the time of any
repayment or prepayment thereof (but shall
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otherwise be payable as provided in preceding clause (i)) unless the
respective repayment or prepayment is made either in conjunction with a
permanent reduction of the Total Revolving Loan Commitment or with a
repayment or prepayment in full of all outstanding Loans of the
respective Tranche.
(e) DETERMINATION OF EURODOLLAR RATE. Upon each Interest
Determination Date, the Administrative Agent shall determine the
Eurodollar Rate for each Interest Period applicable to the respective
Eurodollar Loans and shall promptly notify the Borrower and the Lenders
thereof. Each such determination shall, absent manifest error, be final
and conclusive and binding on all parties hereto.
Section 2.9 Interest Periods. At the time the Borrower gives
any Notice of Borrowing or Notice of Conversion in respect of the making of, or
conversion into, any Eurodollar Loan (in the case of the initial Interest Period
applicable thereto) or prior to 10:00 A.M. on the third Business Day prior to
the expiration of an Interest Period applicable to such Eurodollar Loan (in the
case of any subsequent Interest Period), the Borrower shall have the right to
elect, by giving the Administrative Agent notice thereof, the interest period
(each an "Interest Period") applicable to such Eurodollar Loan, which Interest
Period shall, at the option of the Borrower, be a one, two, three or six month
period, provided that (in each case):
(a) all Eurodollar Loans comprising a Borrowing shall at all
times have the same Interest Period;
(b) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including
the date of any conversion thereto from a Base Rate Loan) and each
Interest Period occurring thereafter in respect of such Eurodollar Loan
shall commence on the day on which the next preceding Interest Period
applicable thereto expires;
(c) if any Interest Period for a Eurodollar Loan begins on a
day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period, such Interest Period shall
end on the last Business Day of such calendar month;
(d) if any Interest Period for a Eurodollar Loan would
otherwise expire on a day which is not a Business Day, such Interest
Period shall expire on the next succeeding Business Day; provided,
however, that if any Interest Period for a Eurodollar Loan would
otherwise expire on a day which is not a Business Day but is a day of
the month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business Day;
(e) unless the Required Lenders otherwise agree, no Interest
Period may be selected at any time when a Default or an Event of
Default is then in existence;
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(f) no Interest Period in respect of any Borrowing of any
Tranche of Loans shall be selected which extends beyond the Maturity
Date for such Tranche of Loans; and
(g) no Interest Period in respect of any Borrowing of Term
Loans shall be selected which extends beyond any date upon which a
mandatory repayment of Term Loans will be required to be made under
Section 5.2(b), as the case may be, if the aggregate principal amount
of Term Loans which have Interest Periods which will expire after such
date will be in excess of the aggregate principal amount of Term Loans
then outstanding less the aggregate amount of such required repayment.
If upon the expiration of any Interest Period applicable to a Borrowing of
Eurodollar Loans, the Borrower has failed to elect, or is not permitted to
elect, a new Interest Period to be applicable to such Eurodollar Loans as
provided above, the Borrower shall be deemed to have elected to convert such
Eurodollar Loans into Base Rate Loans effective as of the expiration date of
such current Interest Period.
Section 2.10 Increased Costs, Illegality, etc.
(a) DETERMINATION OF CHANGED CIRCUMSTANCES. In the event that
any Lender shall have determined (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties
hereto but, with respect to clause (i) below, may be made only by the
Administrative Agent):
(i) on any Interest Determination Date that, by
reason of any changes arising after the date of this Agreement
affecting the interbank Eurodollar market, adequate and fair
means do not exist for ascertaining the applicable interest
rate on the basis provided for in the definition of Eurodollar
Rate; or
(ii) at any time, that such Lender shall incur
increased costs or reductions in the amounts received or
receivable hereunder with respect to any Eurodollar Loan
because of (A) any change since the date of this Agreement in
any applicable law or governmental rule, regulation, order,
guideline or request (whether or not having the force of law)
or in the interpretation or administration thereof and
including the introduction of any new law or governmental
rule, regulation, order, guideline or request, such as, for
example, but not limited to: (1) a change in the basis of
taxation of payment to any Lender of the principal of or
interest on the Loans or the Notes or any other amounts
payable hereunder (except for changes in the rate of tax on,
or determined by reference to, the net income or profits of
such Lender pursuant to the laws of the jurisdiction in which
it is organized or in which its principal office or applicable
lending office is located or any subdivision thereof or
therein) or (2) a change in official reserve requirements,
but, in all events, excluding reserves required under
Regulation D to the extent included in the computation of the
Eurodollar Rate and/or (B) other circumstances arising
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since the date of this Agreement affecting such Lender, the
interbank Eurodollar market or the position of such Lender in
such market; or
(iii) at any time, that the making or continuance of
any Eurodollar Loan has been made (A) unlawful by any law or
governmental rule, regulation or order, (B) impossible by
compliance by any Lender in good faith with any governmental
request (whether or not having force of law) or (C)
impracticable as a result of a contingency occurring after the
date of this Agreement which materially and adversely affects
the interbank Eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent,
in the case of clause (i) above) shall promptly give notice (by
telephone promptly confirmed in writing) to the Borrower and, except in
the case of clause (i) above, to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly
transmit to each of the other Lenders). Thereafter (x) in the case of
clause (i) above, Eurodollar Loans shall no longer be available until
such time as the Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Notice of Borrowing or
Notice of Conversion given by the Borrower with respect to Eurodollar
Loans which have not yet been incurred (including by way of conversion)
shall be deemed rescinded by the Borrower, (y) in the case of clause
(ii) above, the Borrower shall, subject to Section 2.14, pay to such
Lender, upon such Lender's written request therefor, such additional
amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its sole
discretion shall determine) as shall be required to compensate such
Lender for such increased costs or reductions in amounts received or
receivable hereunder (a written notice as to the additional amounts
owed to such Lender, showing in reasonable detail the basis for the
calculation thereof, submitted to the Borrower by such Lender shall,
absent manifest error, be final and conclusive and binding on all the
parties hereto) and (z) in the case of clause (iii) above, the Borrower
shall take one of the actions specified in Section 2.10(b) as promptly
as possible and, in any event, within the time period required by law.
(b) CONSEQUENCES OF CHANGED CIRCUMSTANCES. At any time that
any Eurodollar Loan is affected by the circumstances described in
Section 2.10(a)(ii) or (iii), the Borrower may (and in the case of a
Eurodollar Loan affected by the circumstances described in Section
2.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, cancel such Borrowing
by giving the Administrative Agent telephonic notice (confirmed in
writing) on the same date that the Borrower was notified by the
affected Lender or the Administrative Agent pursuant to Section
2.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then
outstanding, upon at least three Business Days written notice to the
Administrative Agent, require the affected Lender to convert such
Eurodollar Loan into a Base Rate Loan, provided that, if more than one
Lender is affected at any
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time, then all affected Lenders must be treated the same pursuant to
this Section 2.10(b).
(c) RULE CHANGE CONCERNING CAPITAL ADEQUACY. If any Lender
determines that after the date of this Agreement the introduction of or
any change in any applicable law or governmental rule, regulation,
order, guideline, directive or request (whether or not having the force
of law) concerning capital adequacy, or any change in interpretation or
administration thereof by the NAIC or any governmental authority,
central bank or comparable agency, will have the effect of increasing
the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender based on the
existence of such Lender's Commitments hereunder or its obligations
hereunder, then the Borrower shall, subject to Section 2.14, pay to
such Lender, upon its written demand therefor, such additional amounts
as shall be required to compensate such Lender or such other
corporation for the increased cost to such Lender or such other
corporation or the reduction in the rate of return to such Lender or
such other corporation as a result of such increase of capital. In
determining such additional amounts, each Lender will act reasonably
and in good faith and will use averaging and attribution methods which
are reasonable, provided that such Lender's determination of
compensation owing under this Section 2.10(c) shall, absent manifest
error, be final and conclusive and binding on all the parties hereto.
Each Lender, upon determining that any additional amounts will be
payable pursuant to this Section 2.10(c), will give prompt written
notice thereof to the Borrower, which notice shall show in reasonable
detail the basis for calculation of such additional amounts.
Section 2.11 Compensation. The Borrower shall compensate each
Lender, upon its written request (which request shall set forth in reasonable
detail the basis for requesting such compensation), for all reasonable losses,
expenses and liabilities (including, without limitation, any loss, expense or
liability incurred by reason of the liquidation or reemployment of deposits or
other funds required by such Lender to fund its Eurodollar Loans but excluding
loss of anticipated profits) which such Lender may sustain or be deemed to have
sustained: (i) if for any reason (other than a default by such Lender or the
Administrative Agent) a Borrowing of, or conversion from or into, Eurodollar
Loans does not occur on a date specified therefor in a Notice of Borrowing or
Notice of Conversion (whether or not withdrawn by the Borrower or deemed
withdrawn pursuant to Section 2.10(a)); (ii) if any repayment (including any
repayment made pursuant to Section 5.1, Section 5.2 or as a result of an
acceleration of the Loans pursuant to Section 11.2) or conversion of any of its
Eurodollar Loans occurs on a date which is not the last day of an Interest
Period with respect thereto; (iii) if any prepayment of any of its Eurodollar
Loans is not made on any date specified in a notice of prepayment given by the
Borrower; (iv) as a consequence of (A) any other default by the Borrower to
repay its Eurodollar Loans when required by the terms of this Agreement or any
Note held by such Lender or (B) any election made pursuant to Section 2.10(b).
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Section 2.12 Change of Lending Office. Each Lender agrees that
on the occurrence of any event giving rise to the operation of Section
2.10(a)(ii) or (iii), Section 2.10(c), Section 3.6 or Section 5.4 with respect
to such Lender, it will, if requested by the Borrower, use reasonable efforts
(subject to overall policy considerations of such Lender) to designate another
lending office for any Loans or Letters of Credit affected by such event,
provided that such designation is made on such terms that such Lender and its
lending office suffer no economic, legal or regulatory disadvantage, with the
object of avoiding the consequence of the event giving rise to the operation of
such Section. Nothing in this Section 2.12 shall affect or postpone any of the
obligations of the Borrower or the right of any Lender provided in Sections
2.10, 2.6 and 5.4.
Section 2.13 Replacement of Lenders.
(a) CAUSE FOR REPLACEMENT; PAYOUT. If any Lender becomes a
Defaulting Lender or otherwise defaults in its obligations to make
Loans, or if, upon the occurrence of an event giving rise to the
operation of Section 2.10(a)(ii) or (iii), Section 2.10(c), Section 3.6
or Section 5.4 with respect to any Lender, such Lender charges to the
Borrower increased costs in excess of those being generally charged by
the other Lenders, the Borrower shall have the right, if no Default or
Event of Default then exists, to replace such Lender (the "Replaced
Lender") with one or more other Eligible Transferees, none of whom
shall constitute a Defaulting Lender at the time of such replacement
(collectively, the "Replacement Lender") and each of whom shall be
required to be reasonably acceptable to the Administrative Agent,
provided that:
(i) at the time of any replacement pursuant to this
Section 2.13, the Replacement Lender shall enter into one or
more Assignment and Assumption Agreements pursuant to Section
13.4(b) (and with all fees payable pursuant to said Section
13.4(b) to be paid by the Replacement Lender) pursuant to
which the Replacement Lender shall acquire all of the
Commitments and outstanding Loans of, and in each case
participations in Letters of Credit by, the Replaced Lender
and, in connection therewith, shall pay to
(A) the Replaced Lender in respect thereof
an amount equal to the sum of (1) an amount equal to
the principal of, and all accrued interest on, all
outstanding Loans of the Replaced Lender, (2) an
amount equal to all Unpaid Drawings that have been
funded by (and not reimbursed to) such Replaced
Lender, together with all then unpaid interest with
respect thereto at such time, and (3) an amount equal
to all accrued, but theretofore unpaid, Fees owing to
the Replaced Lender pursuant to Section 4.1,
(B) the Issuing Lender an amount equal to
such Replaced Lender's RL Percentage of any Unpaid
Drawing (which at such time remains an Unpaid
Drawing) to the extent such amount was not
theretofore funded by such Replaced Lender to the
Issuing Lender, and
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(C) the Swingline Lender an amount equal to
such Replaced Lender's RL Percentage of any Mandatory
Borrowing to the extent such amount was not
theretofore funded by such Replaced Lender to the
Swingline Lender, and
(ii) all obligations of the Borrower due and owing to
the Replaced Lender at such time (other than those
specifically described in clause (i) above in respect of which
the assignment purchase price has been, or is concurrently
being, paid) shall be paid in full to such Replaced Lender
concurrently with such replacement.
(b) REPLACEMENT LENDER BECOMES LENDER. Upon the execution of
the applicable Assignment and Assumption Agreement, the payment of
amounts referred to in clauses (a)(i) and (a)(ii) above and, if so
requested by the Replacement Lender, delivery to the Replacement Lender
of the appropriate Note or Notes executed by the Borrower, the
Replacement Lender shall become a Lender hereunder and the Replaced
Lender shall cease to constitute a Lender hereunder, except with
respect to indemnification provisions under this Agreement (including,
without limitation, Sections 2.10, 2.11, 3.6, 5.4, 12.6 and 13.1),
which shall survive as to such Replaced Lender.
Section 2.14 Limitation on Additional Amounts. Notwithstanding
anything to the contrary contained in Section 2.10 or 3.6, unless a Lender gives
notice to the Borrower that the Borrower is obligated to pay any amount under
Section 2.10 or 3.6 within 180 days after the later of (x) the date such Lender
incurs the respective increased costs or reduction in the rate of return or (y)
the date such Lender has actual knowledge of its incurrence of the respective
increased costs or reduction in the rate of return, such Lender shall only be
entitled to be compensated for such amount by the Borrower pursuant to Section
2.10 or 3.6 to the extent the respective increased costs or reduction in the
rate of return are incurred or suffered on or after the date which occurs 180
days prior to such Lender giving notice to the Borrower that it is obligated to
pay the respective amounts pursuant to Section 2.10 or 3.6. This Section 2.14
shall have no applicability to any Section of this Agreement other than Sections
2.10 and 3.6.
ARTICLE III
LETTERS OF CREDIT
Section 3.1 Letters of Credit.
(a) REQUESTS FOR LETTERS OF CREDIT. Subject to and upon the
terms and conditions set forth herein, the Borrower may request that
the Issuing Lender issue, at any time and from time to time on and
after the Closing Date and prior to the 30th day prior to the Revolving
Loan Maturity Date, for the account of the Borrower and for the benefit
of (x) any holder (or any trustee, agent or other similar
representative for any such holders) of L/C Supportable Obligations of
the Borrower or any of its
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Subsidiaries, an irrevocable standby letter of credit, in a form
customarily used by the Issuing Lender or in such other form as has
been approved by the Issuing Lender, and (y) sellers of goods to the
Borrower or any of its Subsidiaries, an irrevocable trade letter of
credit, in a form customarily used by the Issuing Lender or in such
other form as has been approved by the Issuing Lender (each such letter
of credit, a "Letter of Credit" and, collectively, the "Letters of
Credit"). All Letters of Credit shall be denominated in Dollars and
shall be issued on a sight basis only.
(b) COMMITMENT TO ISSUE LETTERS OF CREDIT. Subject to and upon
the terms and conditions set forth herein, the Issuing Lender agrees
that it will, at any time and from time to time on and after the
Closing Date and prior to the 30th day prior to the Revolving Loan
Maturity Date, following its receipt of the respective Letter of Credit
Request, issue for the account of the Borrower, one or more Letters of
Credit as are permitted to remain outstanding hereunder without giving
rise to a Default or an Event of Default, provided that the Issuing
Lender shall be under no obligation to issue any Letter of Credit of
the types described above if at the time of such issuance:
(i) any order, judgment or decree of any governmental
authority or arbitrator shall purport by its terms to enjoin
or restrain the Issuing Lender from issuing such Letter of
Credit or any requirement of law applicable to the Issuing
Lender or any request or directive (whether or not having the
force of law) from any governmental authority with
jurisdiction over the Issuing Lender shall prohibit, or
request that the Issuing Lender refrain from, the issuance of
letters of credit generally or such Letter of Credit in
particular or shall impose upon the Issuing Lender with
respect to such Letter of Credit any restriction or reserve or
capital requirement (for which the Issuing Lender is not
otherwise compensated hereunder) not in effect with respect to
the Issuing Lender on the date hereof, or any unreimbursed
loss, cost or expense which was not applicable or in effect
with respect to the Issuing Lender as of the date hereof and
which the Issuing Lender reasonably and in good faith deems
material to it; or
(ii) the Issuing Lender shall have received from the
Borrower or the Required Lenders prior to the issuance of such
Letter of Credit, notice of the type described in the second
sentence of Section 3.3(b).
Section 3.2 Maximum Letter of Credit Outstandings; Final
Maturities. Notwithstanding anything to the contrary contained in this
Agreement,
(a) no Letter of Credit shall be issued the Stated Amount of
which, when added to the Letter of Credit Outstandings (exclusive of
Unpaid Drawings which are repaid on the date of, and prior to the
issuance of, such Letter of Credit) at such time would exceed either
(i) $10,000,000 or (ii) when added to the sum of (A) the aggregate
principal amount of all Revolving Loans then outstanding and (B) the
aggregate principal amount of all Swingline Loans then outstanding, an
amount equal to the Total Revolving Loan Commitment at such time, and
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(b) each Letter of Credit shall by its terms terminate on or
before the earlier of (i) (A) in the case of standby Letters of Credit,
the date which occurs 12 months after the date of the issuance thereof
(although any such standby Letter of Credit may be extendible for
successive periods of up to 12 months, but, in each case, not beyond
the third Business Day prior to the Revolving Loan Maturity Date, on
terms acceptable to the Issuing Lender) and (B) in the case of trade
Letters of Credit, the date which occurs 180 days after the date of
issuance thereof, and (ii) 30 days prior to the Revolving Loan Maturity
Date.
Section 3.3 Letter of Credit Requests; Minimum Stated Amount.
(a) LETTER OF CREDIT REQUESTS. Whenever the Borrower desires
that a Letter of Credit be issued for its account, the Borrower shall
give the Administrative Agent and the Issuing Lender at least five
Business Days (or such shorter period as is acceptable to the Issuing
Lender) written notice thereof (including by way of facsimile). Each
notice shall be in the form of Exhibit E, appropriately completed (each
a "Letter of Credit Request"). Further, in conjunction with each Letter
of Credit Request, Borrower shall submit an application and agreement
for the issuance or amendment of a Letter of Credit in the form from
time to time in use by the Issuing Lender.
(b) ISSUANCE OF LETTERS OF CREDIT. The making of each Letter
of Credit Request shall be deemed to be a representation and warranty
by the Borrower that such Letter of Credit may be issued in accordance
with, and will not violate the requirements of, Section 3.2. Unless the
Issuing Lender has received notice from the Borrower or the Required
Lenders before it issues a Letter of Credit that one or more of the
conditions specified in Articles VI or VII are not then satisfied, or
that the issuance of such Letter of Credit would violate Section 3.2,
then the Issuing Lender shall, subject to the terms and conditions of
this Agreement, issue the requested Letter of Credit for the account of
the Borrower in accordance with the Issuing Lender's usual and
customary practices. Upon the issuance of or modification or amendment
to any standby Letter of Credit, the Issuing Lender shall promptly
notify the Administrative Agent and each Participant of such issuance,
modification or amendment as the case may be. Notwithstanding anything
to the contrary contained in this Agreement, in the event that a Lender
Default exists, the Issuing Lender shall not be required to issue any
Letter of Credit unless the Issuing Lender has entered into
arrangements satisfactory to it and the Borrower to eliminate the
Issuing Lender's risk with respect to the participation in Letters of
Credit by the Defaulting Lender or Lenders, including by cash
collateralizing such Defaulting Lender's or Lenders' RL Percentage of
the Letter of Credit Outstandings.
(c) MINIMUM INITIAL STATED AMOUNT. The initial Stated Amount
of each Letter of Credit shall not be less than $50,000 or such lesser
amount as is acceptable to the Issuing Lender.
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Section 3.4 Letter of Credit Participations.
(a) SALE OF PARTICIPATIONS. Immediately upon the issuance by
the Issuing Lender of any Letter of Credit, the Issuing Lender shall be
deemed to have sold and transferred to each RL Lender, other than the
Issuing Lender (each such Lender, in its capacity under this Section
3.4, a "Participant"), and each such Participant shall be deemed
irrevocably and unconditionally to have purchased and received from the
Issuing Lender, without recourse or warranty, an undivided interest and
participation, to the extent of such Participant's RL Percentage, in
such Letter of Credit, each drawing or payment made thereunder and the
obligations of the Borrower under this Agreement with respect thereto,
and any security therefor or guaranty pertaining thereto. Upon any
change in the Revolving Loan Commitments or RL Percentages of the
Lenders pursuant to Sections 2.13 or 13.4(b), it is hereby agreed that,
with respect to all Letter of Credit Outstandings, there shall be an
automatic adjustment to the participations pursuant to this Section 3.4
to reflect the new RL Percentages of the assignor and assignee Lender.
(b) ISSUING LENDER'S DUTIES TO OTHER LENDERS. In determining
whether to pay under any Letter of Credit, the Issuing Lender shall not
have an obligation relative to the other Lenders other than to confirm
that any documents required to be delivered under such Letter of Credit
appear to have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit.
Any action taken or omitted to be taken by the Issuing Lender under or
in connection with any Letter of Credit shall not create for the
Issuing Lender any resulting liability to the Borrower, any other
Credit Party, any Lender or any other Person unless such action is
taken or omitted to be taken with gross negligence or willful
misconduct (as determined by a court of competent jurisdiction in a
final and non-appealable decision).
(c) REIMBURSEMENT BY PARTICIPANTS. In the event that the
Issuing Lender makes any payment under any Letter of Credit and the
Borrower shall not have reimbursed such amount in full to the Issuing
Lender pursuant to Section 3.5(a), the Issuing Lender shall promptly
notify the Administrative Agent, which shall promptly notify each
Participant of such failure, and each Participant shall promptly and
unconditionally pay to the Issuing Lender the amount of such
Participant's RL Percentage of such unreimbursed payment in Dollars and
in same day funds. If the Administrative Agent so notifies, prior to
12:00 noon on any Business Day, any Participant required to fund a
payment under a Letter of Credit, such Participant shall make available
to the Issuing Lender in Dollars such Participant's RL Percentage of
the amount of such payment on such Business Day in same day funds. If
and to the extent such Participant shall not have so made its RL
Percentage of the amount of such payment available to the Issuing
Lender, such Participant agrees to pay to the Issuing Lender, forthwith
on demand such amount, together with interest thereon, for each day
from such date until the date such amount is paid to the Issuing Lender
at the overnight Federal Funds Rate for the first three days and at the
interest rate
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applicable to Revolving Loans maintained as Base Rate Loans for each
day thereafter. The failure of any Participant to make available to the
Issuing Lender its RL Percentage of any payment under any Letter of
Credit shall not relieve any other Participant of its obligation
hereunder to make available to the Issuing Lender its RL Percentage of
any payment under any Letter of Credit on the date required, as
specified above, but no Participant shall be responsible for the
failure of any other Participant to make available to the Issuing
Lender such other Participant's RL Percentage of any such payment.
(d) REIMBURSEMENT OF PARTICIPANTS. Whenever the Issuing Lender
receives a payment of a reimbursement obligation as to which it has
received any payments from the Participants pursuant to subsection (c),
the Issuing Lender shall pay to each such Participant which has paid
its RL Percentage thereof, in Dollars and in same day funds, an amount
equal to such Participant's share (based upon the proportionate
aggregate amount originally funded by such Participant to the aggregate
amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the
purchase of the respective participations.
(e) COPIES OF DOCUMENTS. Upon the request of any Participant,
the Issuing Lender shall furnish to such Participant copies of any
Letter of Credit and such other documentation as may reasonably be
requested by such Participant.
(f) PARTICIPANT'S OBLIGATIONS IRREVOCABLE. The obligations of
the Participants to make payments to the Issuing Lender with respect to
Letters of Credit shall be irrevocable and not subject to any
qualification or exception whatsoever and shall be made in accordance
with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or
other right which the Borrower or any of its Subsidiaries may
have at any time against a beneficiary named in a Letter of
Credit, any transferee of any Letter of Credit (or any Person
for whom any such transferee may be acting), the
Administrative Agent, any Participant, or any other Person,
whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the
Borrower or any Subsidiary of the Borrower and the beneficiary
named in any such Letter of Credit);
(iii) any draft, certificate or any other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for
the performance or observance of any of the terms of any of
the Credit Documents; or
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(v) the occurrence of any Default or Event of
Default.
Section 3.5 Agreement to Repay Letter of Credit Drawings.
(a) OBLIGATION TO REPAY DRAWINGS. The Borrower agrees to
reimburse the Issuing Lender, by making payment to the Administrative
Agent in immediately available funds at the Payment Office, for any
payment or disbursement made by the Issuing Lender under any Letter of
Credit (each such amount, so paid until reimbursed, an "Unpaid
Drawing"), not later than one Business Day following receipt by the
Borrower of notice of such payment or disbursement (provided that no
such notice shall be required to be given if a Default or an Event of
Default under Section 11.1(e) shall have occurred and be continuing, in
which case the Unpaid Drawing shall be due and payable immediately
without presentment, demand, protest or notice of any kind (all of
which are hereby waived by the Borrower)), with interest on the amount
so paid or disbursed by the Issuing Lender, to the extent not
reimbursed prior to 11:00 A.M. on the date of such payment or
disbursement, from and including the date paid or disbursed to but
excluding the date the Issuing Lender was reimbursed by the Borrower
therefor at a rate per annum equal to the Base Rate in effect from time
to time plus the Applicable Margin for Revolving Loans maintained as
Base Rate Loans; provided, however, to the extent such amounts are not
reimbursed prior to 11:00 A.M. on the third Business Day following the
receipt by the Borrower of notice of such payment or disbursement or
following the occurrence of a Default or an Event of Default under
Section 11.1(e), interest shall thereafter accrue on the amounts so
paid or disbursed by the Issuing Lender (and until reimbursed by the
Borrower) at a rate per annum equal to the Base Rate in effect from
time to time plus the Applicable Margin for Revolving Loans maintained
as Base Rate Loans plus 2%, with interest to be payable on demand. The
Issuing Lender shall give the Borrower prompt notice of each Drawing
under any Letter of Credit; provided that the failure to give any such
notice shall in no way affect, impair or diminish the Borrower's
obligations hereunder.
(b) OBLIGATIONS ABSOLUTE. The obligations of the Borrower
under this Section 3.5 to reimburse the Issuing Lender with respect to
drawings under Letters of Credit (each a "Drawing") (including, in each
case, interest thereon) shall be absolute and unconditional under any
and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower or any Subsidiary of the Borrower
may have or have had against the beneficiary or any Lender (including
in its capacity as the Issuing Lender or as a Participant), including,
without limitation, any defense based upon the failure of any drawing
under a Letter of Credit to conform to the terms of the Letter of
Credit or any nonapplication or misapplication by the beneficiary of
the proceeds of such Drawing; provided, however, that the Borrower
shall not be obligated to reimburse the Issuing Lender for any wrongful
payment made by the Issuing Lender under a Letter of Credit as a result
of acts or omissions constituting willful misconduct or gross
negligence on the part of the Issuing Lender
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(as determined by a court of competent jurisdiction in a final and
non-appealable decision).
Section 3.6 Increased Costs. If at any time after the date of
this Agreement, the introduction of or any change in any applicable law, rule,
regulation, order, guideline or request or in the interpretation or
administration thereof by the NAIC or any governmental authority charged with
the interpretation or administration thereof, or compliance by the Issuing
Lender or any Participant with any request or directive by the NAIC or by any
such authority (whether or not having the force of law), shall either
(a) impose, modify or make applicable any reserve, deposit,
capital adequacy or similar requirement against letters of credit
issued by the Issuing Lender or participated in by any Participant, or
(b) impose on the Issuing Lender or any Participant any other
conditions relating, directly or indirectly, to this Agreement or any
Letter of Credit;
and the result of any of the foregoing is to increase the cost to the Issuing
Lender or any Participant of issuing, maintaining or participating in any Letter
of Credit, or reduce the amount of any sum received or receivable by the Issuing
Lender or any Participant hereunder or reduce the rate of return on its capital
with respect to Letters of Credit (except for changes in the rate of tax on, or
determined by reference to, the net income or profits of the Issuing Lender or
such Participant pursuant to the laws of the jurisdiction in which it is
organized or in which its principal office or applicable lending office is
located or any subdivision thereof or therein), then, upon the delivery of the
certificate referred to below to the Borrower by the Issuing Lender or any
Participant (a copy of which certificate shall be sent by the Issuing Lender or
such Participant to the Administrative Agent), the Borrower shall, subject to
Section 2.14, pay to the Issuing Lender or such Participant such additional
amount or amounts as will compensate such Lender for such increased cost or
reduction in the amount receivable or reduction on the rate of return on its
capital. The Issuing Lender or any Participant, upon determining that any
additional amounts will be payable pursuant to this Section 3.6, will give
prompt written notice thereof to the Borrower, which notice shall include a
certificate submitted to the Borrower by the Issuing Lender or such Participant
(a copy of which certificate shall be sent by the Issuing Lender or such
Participant to the Administrative Agent), setting forth in reasonable detail the
basis for the calculation of such additional amount or amounts necessary to
compensate the Issuing Lender or such Participant. The certificate required to
be delivered pursuant to this Section 3.6 shall, absent manifest error, be final
and conclusive and binding on the Borrower.
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ARTICLE IV
COMMITMENT FEE; FEES; REDUCTIONS OF COMMITMENT.
Section 4.1 Fees.
(a) COMMITMENT FEE. The Borrower agrees to pay to the
Administrative Agent for distribution to each Non-Defaulting RL Lender
a commitment fee (the "Commitment Fee") for the period from and
including the Closing Date to but excluding the Revolving Loan Maturity
Date (or such earlier date on which the Total Revolving Loan Commitment
has been terminated) computed at a rate per annum for each day equal to
the Applicable Margin (i.e., the Commitment Fee Rate as specified in
the definition of "Applicable Margin") on the daily average Unutilized
Revolving Loan Commitment of such Non-Defaulting Lender. Accrued
Commitment Fees shall be due and payable quarterly in arrears on each
Quarterly Payment Date and on the date upon which the Total Revolving
Loan Commitment is terminated.
(b) LETTER OF CREDIT FEE. The Borrower agrees to pay to the
Administrative Agent for distribution to each RL Lender (based on each
such RL Lender's respective RL Percentage) a fee in respect of each
Letter of Credit (the "Letter of Credit Fee") for the period from and
including the date of issuance of such Letter of Credit to and
including the date of termination or expiration of such Letter of
Credit, computed at a rate per annum equal to the Applicable Margin
then in effect with respect to Revolving Loans maintained as Eurodollar
Loans on the daily Stated Amount of each such Letter of Credit. Accrued
Letter of Credit Fees shall be due and payable quarterly in arrears on
each Quarterly Payment Date and on the first day on or after the
termination of the Total Revolving Loan Commitment upon which no
Letters of Credit remain outstanding.
(c) FRONTING FEE. The Borrower agrees to pay to the Issuing
Lender, for its own account, a fronting fee in respect of each Letter
of Credit (the "Fronting Fee") for the period from and including the
date of issuance of such Letter of Credit to and including the date of
termination or expiration of such Letter of Credit, computed at a rate
per annum equal to 1/8 of 1% on the Stated Amount of such Letter of
Credit. Fronting Fees shall be due and payable quarterly in arrears on
the next Business Day following each Quarterly Payment Date and upon
the first day on or after the termination of the Total Revolving Loan
Commitment upon which no Letters of Credit remain outstanding.
(d) LETTER OF CREDIT ADMINISTRATIVE FEES. The Borrower agrees
to pay to the Issuing Lender, for its own account, upon each payment
under, issuance of, or amendment to, any Letter of Credit, such amount
as shall at the time of such event be the administrative charge and the
reasonable expenses which the Issuing Lender is generally imposing in
connection with such occurrence with respect to letters of credit. In
addition the Borrower shall pay directly to the Issuing Lender, for its
own
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account the customary issuance, presentation, amendment and other
processing fees, and other standard costs and charges, relating to
letters of credit as from time to time in effect. Such fees and charges
are due and payable on demand and are nonrefundable.
(e) ADMINISTRATIVE AGENT FEES. The Borrower agrees to pay to
the Administrative Agent, for its own account, such other fees as have
been agreed to in writing by the Borrower and the Administrative Agent.
Section 4.2 Voluntary Termination of Unutilized Revolving Loan
Commitments. Upon at least one Business Day's prior written notice to the
Administrative Agent at the Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the Lenders), the Borrower shall have the
right, at any time or from time to time, without premium or penalty, to
terminate the Total Unutilized Revolving Loan Commitment in whole, or reduce it
in part, pursuant to this Section 4.2, in an integral multiple of $500,000 in
the case of partial reductions to the Total Unutilized Revolving Loan
Commitment, provided that each such reduction shall apply proportionately to
permanently reduce the Revolving Loan Commitment of each RL Lender.
Section 4.3 Mandatory Reduction of Commitments.
(a) In addition to any other mandatory commitment reductions
pursuant to this Section 4.3, the Total Term Loan Commitment (and the
Term Loan Commitment of each Lender) shall terminate in its entirety on
the Closing Date (after giving effect to the incurrence of the Term
Loans on such date).
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 4.3, the Total Revolving Loan Commitment (and
the Revolving Loan Commitment of each Lender) shall terminate in its
entirety on the earlier of (i) the Revolving Loan Maturity Date and
(ii) unless the Required Lenders otherwise agree, the date on which a
Change of Control occurs.
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 4.3, on each date after the Closing Date upon
which a mandatory repayment of Term Loans pursuant to any of Sections
5.2(c) through (f), inclusive, is required (and exceeds in amount the
aggregate principal amount of Term Loans then outstanding) or would be
required if Term Loans were then outstanding, the Total Revolving Loan
Commitment shall be permanently reduced by the amount, if any, by which
the amount required to be applied pursuant to said Sections (determined
as if an unlimited amount of Term Loans were actually outstanding)
exceeds the aggregate principal amount of Term Loans then outstanding.
(d) Each reduction and/or termination to the Total Term Loan
Commitment, and the Total Revolving Loan Commitment shall be applied to
proportionately reduce and/or terminate the Term Loan Commitment, and
the
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Revolving Loan Commitment, as the case may be, of each Lender with such
a Commitment.
ARTICLE V
PREPAYMENTS; PAYMENTS; TAXES.
Section 5.1 Voluntary Prepayments.
(a) CONDITIONS FOR PREPAYMENT. The Borrower shall have the
right to prepay the Loans, without premium or penalty, in whole or in
part at any time and from time to time on the following terms and
conditions:
(i) the Borrower shall give the Administrative Agent
prior to 11:00 A.M. at the Notice Office (x) at least one
Business Day's prior written notice (or telephonic notice
promptly confirmed in writing) of its intent to prepay Base
Rate Loans (or same day notice in the case of a prepayment of
Swingline Loans) and (y) at least three Business Days prior
written notice (or telephonic notice promptly confirmed in
writing) of its intent to prepay Eurodollar Loans, which
notice (in each case) shall specify whether Term Loans,
Revolving Loans or Swingline Loans shall be prepaid, the
amount of such prepayment and the Types of Loans to be prepaid
and, in the case of Eurodollar Loans, the specific Borrowing
or Borrowings pursuant to which made, and which notice the
Administrative Agent shall, except in the case of Swingline
Loans, promptly transmit to each of the Lenders;
(ii) each partial prepayment pursuant to this Section
5.1(a) shall be in an aggregate principal amount of at least
$5,000,000 for Eurodollar Loans, $500,000 for Base Rate Loans
other than Swingline Loans, and $100,000 for Swingline Loans,
provided that if any partial prepayment of Eurodollar Loans
made pursuant to any Borrowing shall reduce the outstanding
principal amount of Eurodollar Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount
applicable thereto, then such Borrowing may not be continued
as a Borrowing of Eurodollar Loans and any election of an
Interest Period with respect thereto given by the Borrower
shall have no force or effect;
(iii) each prepayment pursuant to this Section 5.1(a)
in respect of any Loans made pursuant to a Borrowing shall be
applied pro rata among such Loans, provided that at the
Borrower's election in connection with any prepayment of
Revolving Loans pursuant to this Section 5.1(a), such
prepayment shall not, so long as no Default or Event of
Default then exists, be applied to any Revolving Loan of a
Defaulting Lender; and
(iv) each prepayment of any Tranche of Term Loans
pursuant to this Section 5.1(a) shall be applied to reduce the
then remaining Term Loan
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Scheduled Repayments of such Tranche of Term Loans in the inverse order
of maturity.
Section 5.2 Mandatory Repayments and Commitment Reductions.
(a) OBLIGATIONS IN EXCESS OF COMMITMENTS. On any day on which
the sum of (i) the aggregate outstanding principal amount of all
Revolving Loans (after giving effect to all other repayments thereof on
such date), (ii) the aggregate outstanding principal amount of all
Swingline Loans (after giving effect to all other repayments thereof on
such date) and (iii) the aggregate amount of all Letter of Credit
Outstandings exceeds the Total Revolving Loan Commitment at such time,
the Borrower shall prepay on such day the principal of Swingline Loans
and, after all Swingline Loans have been repaid in full or if no
Swingline Loans are outstanding, Revolving Loans in an amount equal to
such excess. If, after giving effect to the prepayment of all
outstanding Swingline Loans and Revolving Loans, the aggregate amount
of the Letter of Credit Outstandings exceeds the Total Revolving Loan
Commitment of such time, the Borrower shall pay to the Administrative
Agent at the Payment Office on such day an amount of cash and/or Cash
Equivalents equal to the amount of such excess (up to a maximum amount
equal to the Letter of Credit Outstandings at such time), such cash
and/or Cash Equivalents to be held as security for all obligations of
the Borrower to the Issuing Lender and the Lenders hereunder in a cash
collateral account to be established by the Administrative Agent.
(b) TERM LOANS. In addition to any other mandatory repayments
pursuant to this Section 5.2, on (each date set forth below,) the
Borrower shall be required to repay that principal amount of Term
Loans, to the extent then outstanding, as is set forth opposite each
such date below (each such repayment, as the same may be reduced as
provided in Sections 5.1(a) and 5.2(g), a "Term Loan Scheduled
Repayment"):
TERM LOAN
SCHEDULED REPAYMENT DATE AMOUNT
-------------------------------------------------------------------------------- ------------------------
(i) the last Business Day of the calendar quarter ending June 30, 2004, and the last $ 5,000,000
Business Day of each calendar quarter thereafter to and including the calendar
quarter ending March 31, 2005
(ii) the last Business Day of the calendar quarter ending June 30,
2005, and the last
Business Day of each calendar quarter thereafter to and including the calendar $6,250,000
quarter ending December 31, 2008
(iii) on the Maturity Date all remaining principal
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(c) EQUITY ISSUANCE. In addition to any other mandatory
repayments pursuant to this Section 5.2, on each date on or after the
Closing Date upon which the Borrower or any of its Subsidiaries
receives any cash proceeds from any capital contribution or any sale or
issuance of its equity (other than cash proceeds received (i) from the
issuance by the Borrower of shares of its common stock (including as a
result of the exercise of any options with regard thereto), or options
to purchase shares of its common stock, to officers, directors and
employees of the Borrower or any of its Subsidiaries, in an aggregate
amount not to exceed $500,000 in any fiscal year of the Borrower, or
(ii) from equity contributions to any Subsidiary of the Borrower to the
extent made by the Borrower or another Subsidiary of the Borrower), an
amount equal to 50% of the Net Equity Proceeds of such capital
contribution or sale or issuance of equity shall be applied on such
date as a mandatory repayment of principal of outstanding Term Loans in
accordance with the requirements of Sections 5.2(g) and (h).
(d) DEBT ISSUANCE. In addition to any other mandatory
repayments pursuant to this Section 5.2, on each date on or after the
Closing Date upon which the Borrower or any of its Subsidiaries
receives any cash proceeds from any incurrence by the Borrower or any
of its Subsidiaries of Indebtedness for borrowed money (other than
Indebtedness for borrowed money permitted to be incurred pursuant to
Section 10.4), an amount equal to 100% of the Net Debt Proceeds of each
incurrence of Indebtedness shall be applied on such date as a mandatory
repayment of principal of outstanding Term Loans in accordance with the
requirements of Sections 5.2(g) and (h).
(e) ASSET SALES. In addition to any other mandatory repayments
pursuant to this Section 5.2, on each date on or after the Closing Date
upon which the Borrower or any of its Subsidiaries receives any cash
proceeds from any Asset Sale, an amount equal to 100% of the Net Sale
Proceeds therefrom shall be applied on such date as a mandatory
repayment of principal of outstanding Term Loans in accordance with the
requirements of Sections 5.2(g) and (h); provided that with respect to
no more than $5,000,000 in the aggregate of cash proceeds from Asset
Sales in any fiscal year of the Borrower, the Net Sale Proceeds
therefrom shall not be required to be so applied on such date so long
as no Default or Event of Default then exists and the Borrower has
delivered a certificate to the Administrative Agent on or prior to such
date stating that such Net Sale Proceeds shall be used to purchase
assets used or to be used in the business permitted pursuant to Section
10.13 (including, without limitation (but only to the extent permitted
by Section 10.2), the purchase of the assets or 100% of the capital
stock of a Person engaged in such businesses) within 180 days following
the date of such Asset Sale (which certificate shall set forth the
estimates of the proceeds to be so expended), and provided further,
that if all or any portion of such Net Sale Proceeds not required to be
applied to the repayment of outstanding Term Loans are not so
reinvested within such 180-day period (or such earlier date, if any, as
the Borrower determines not to reinvest the Net Sale Proceeds from such
Asset Sale as set forth above), such remaining portion shall be applied
on the last day
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of such period (or such earlier date, as the case may be) as a
mandatory repayment of principal of outstanding Term Loans as provided
above in this Section 5.2(e) without regard to the preceding proviso.
Notwithstanding the foregoing, Net Sale Proceeds of up to $7,000,000
from the sale of the Borrower's property consisting of approximately
25.7 acres, consisting of two parcels, located in Montebello, New York
shall not be required to be applied to a mandatory prepayment of Term
Loans pursuant to this Subsection (e).
(f) RECOVERY EVENT PROCEEDS. In addition to any other
mandatory repayments pursuant to this Section 5.2, within 10 days
following each date on or after the Closing Date upon which any Company
receives any cash proceeds from any Recovery Event (other than Recovery
Events in which the Net Recovery Event Proceeds therefrom do not exceed
$100,000), an amount equal to 100% of the Net Recovery Event Proceeds
from such Recovery Event shall be applied on such date as a mandatory
repayment of principal of outstanding Term Loans in accordance with the
requirements of Sections 5.2(g) and (h); provided that so long as no
Default or Event of Default then exists, such Net Recovery Event
Proceeds shall not be required to be so applied on such date to the
extent that the Borrower has delivered a certificate to the
Administrative Agent on or prior to such date stating that such Net
Recovery Event Proceeds shall be used to replace or restore any
properties or assets in respect of which such Net Recovery Event
Proceeds were paid within 180 days following the date of the receipt of
such Net Recovery Event Proceeds (which certificate shall set forth the
estimates of the Net Recovery Event Proceeds to be so expended), and
provided further, that (i) if the amount of such Net Recovery Event
Proceeds exceeds $2,500,000, then the entire amount of such Net
Recovery Event Proceeds (and not just the portion of such Net Recovery
Event Proceeds in excess of $2,500,000) shall be deposited with the
Administrative Agent pursuant to a cash collateral arrangement
reasonably satisfactory to the Administrative Agent whereby such
proceeds shall be disbursed to the Borrower from time to time as needed
to pay actual costs incurred by it or its applicable Subsidiary in
connection with the replacement or restoration of the respective
properties or assets (pursuant to such certification requirements as
may be reasonably required by the Administrative Agent, including
certifications to the effect that (x) no Default or Event of Default
then exists and (y) the Borrower or its applicable Subsidiary has
actually incurred such costs (which certification shall be accompanied
by any paid invoices or invoices required to be paid within 5 Business
Days thereafter)), although at any time while an Event of Default
exists, the Required Lenders may direct the Administrative Agent (in
which case the Administrative Agent shall, and is hereby authorized by
the Borrower to, follow said directions) to apply any or all proceeds
then on deposit in such collateral account to the repayment of
Obligations hereunder, and (ii) if all or any portion of such Net
Recovery Event Proceeds not required to be applied to the repayment of
outstanding Term Loans pursuant to the preceding proviso are not so
used within 180 days after the date of the receipt of such Net Recovery
Event Proceeds (or such earlier date, if any, as the Borrower
determines not to reinvest the Net Recovery Event Proceeds relating to
such Recovery Event as set forth above), such remaining portion shall
be applied on the
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last day of such period (or such earlier date, as the case may be) as a
mandatory repayment of principal of outstanding Term Loans as provided
above in this Section 5.2(g) without regard to the preceding proviso.
(g) PRO RATA APPLICATION OF MANDATORY REPAYMENT. Each amount
required to be applied to the outstanding Term Loans pursuant to
Sections 5.2(c), (d), (e) and (f) shall be applied to reduce the then
remaining Term Loan Scheduled Repayments in the inverse order of
maturity.
(h) APPLICATIONS TO TYPES OF LOANS. With respect to each
repayment of Loans required by this Section 5.2, the Borrower may
designate the Types of Loans of the respective Tranche which are to be
repaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings of the respective Tranche pursuant to which made, provided
that: (i) repayments of Eurodollar Loans pursuant to this Section 5.2
may only be made on the last day of an Interest Period applicable
thereto unless all Eurodollar Loans of the respective Tranche with
Interest Periods ending on such date of required repayment and all Base
Rate Loans of the respective Tranche have been paid in full; (ii) if
any repayment of Eurodollar Loans made pursuant to a single Borrowing
shall reduce the outstanding Eurodollar Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount
applicable thereto, such Borrowing shall be converted at the end of the
then current Interest Period into a Borrowing of Base Rate Loans; and
(iii) each repayment of any Loans made pursuant to a Borrowing shall be
applied pro rata among such Loans. In the absence of a designation by
the Borrower as described in the preceding sentence, the Administrative
Agent shall, subject to the above, make such designation in its sole
discretion.
(i) REVOLVING LOANS. Upon the payment in full of all Term
Loans, 50% of all Net Equity Proceeds, 100% of all Net Debt Proceeds
and 100% of all cash proceeds from any Asset Sale (except as provided
in Section 5.2(e)), which in each case before repayment of the Term,
Loans would be required to be applied to the repayment thereof, shall
be forthwith applied to the mandatory repayment of the Revolving Loans.
Concurrent with such application, the Total Revolving Loan Commitment
shall be reduced by a like amount.
(j) MATURITY DATE; CHANGE OF CONTROL. Notwithstanding anything
to the contrary contained in this Agreement or in any other Credit
Document, (i) all then outstanding Loans of any Tranche shall be repaid
in full on the respective Maturity Date for such Tranche of Loans and
(ii) unless the Required Lenders otherwise agree, all then outstanding
Loans shall be repaid in full on the date on which a Change of Control
occurs.
Section 5.3 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement or under any
Note shall be made to the Administrative Agent for the account of the Lender or
Lenders entitled thereto not later than
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11:00 A.M. on the date when due and shall be made in Dollars in immediately
available funds at the Payment Office. Whenever any payment to be made hereunder
or under any Note shall be stated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next succeeding Business Day
and, with respect to payments of principal, interest shall be payable at the
applicable rate during such extension.
Section 5.4 Net Payments.
(a) PAYMENTS NET OF TAXES. All payments made by the Borrower
hereunder or under any Note will be made without setoff, counterclaim
or other defense. Except as provided in Section 5.4(b), all such
payments will be made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties,
fees, assessments or other charges of whatever nature now or hereafter
imposed by any jurisdiction or by any political subdivision or taxing
authority thereof or therein with respect to such payments (but
excluding, except as provided in the second succeeding sentence, any
tax imposed on or measured by the net income or profits of a Lender
pursuant to the laws of the jurisdiction in which it is organized or
the jurisdiction in which the principal office or applicable lending
office of such Lender is located or any subdivision thereof or therein)
and all interest, penalties or similar liabilities with respect to such
non-excluded taxes, levies, imposts, duties, fees, assessments or other
charges (all such non-excluded taxes, levies, imposts, duties, fees,
assessments or other charges being referred to collectively as
"Taxes"). If any Taxes are so levied or imposed, the Borrower agrees to
pay the full amount of such Taxes, and such additional amounts as may
be necessary so that every payment of all amounts due under this
Agreement or under any Note, after withholding or deduction for or on
account of any Taxes, will not be less than the amount provided for
herein or in such Note. If any amounts are payable in respect of Taxes
pursuant to the preceding sentence, the Borrower agrees to reimburse
each Lender, upon the written request of such Lender, for taxes imposed
on or measured by the net income or profits of such Lender pursuant to
the laws of the jurisdiction in which such Lender is organized or in
which the principal office or applicable lending office of such Lender
is located or under the laws of any political subdivision or taxing
authority of any such jurisdiction in which such Lender is organized or
in which the principal office or applicable lending office of such
Lender is located and for any withholding of taxes as such Lender shall
determine are payable by, or withheld from, such Lender, in respect of
such amounts so paid to or on behalf of such Lender pursuant to the
preceding sentence and in respect of any amounts paid to or on behalf
of such Lender pursuant to this sentence. The Borrower will furnish to
the Administrative Agent within 45 days after the date the payment of
any Taxes is due pursuant to applicable law certified copies of tax
receipts evidencing such payment by the Borrower. The Borrower agrees
to indemnify and hold harmless each Lender, and reimburse such Lender
upon its written request, for the amount of any Taxes so levied or
imposed and paid by such Lender.
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(b) IRS FORMS TO BE DELIVERED BY LENDERS. Each Lender that is
not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes agrees to
deliver to the Borrower and the Administrative Agent on or prior to the
Closing Date or, in the case of a Lender that is an assignee or
transferee of an interest under this Agreement pursuant to Section 2.13
or 13.4(b) (unless the respective Lender was already a Lender hereunder
immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Lender, (i) two accurate and complete
original signed copies of Internal Revenue Service Form W-8ECI or Form
W-8BEN (with respect to a complete exemption under an income tax
treaty) (or successor forms) certifying to such Lender's entitlement as
of such date to a complete exemption from United States withholding tax
with respect to payments to be made under this Agreement and under any
Note, or (ii) if the Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal
Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete
exemption under an income tax treaty) (or any successor forms) pursuant
to clause (i) above, (A) a certificate substantially in the form of
Exhibit F (any such certificate, a "Section 5.4(b)(ii) Certificate")
and (B) two accurate and complete original signed copies of Internal
Revenue Service Form W-8BEN (with respect to the portfolio interest
exemption) (or successor form) certifying to such Lender's entitlement
as of such date to a complete exemption from United States withholding
tax with respect to payments of interest to be made under this
Agreement and under any Note. In addition, each Lender agrees that from
time to time after the Closing Date, when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate
in any material respect, such Lender will deliver to the Borrower and
the Administrative Agent two new accurate and complete original signed
copies of Internal Revenue Service Form W-8ECI, Form W-8BEN (with
respect to the benefits of any income tax treaty), Form W-8BEN (with
respect to the portfolio interest exemption) and a Section 5.4(b)(ii)
Certificate, as the case may be, and such other forms as may be
required in order to confirm or establish the entitlement of such
Lender to a continued exemption from or reduction in United States
withholding tax with respect to payments under this Agreement and any
Note, or such Lender shall immediately notify the Borrower and the
Administrative Agent of its inability to deliver any such Form or
Certificate, in which case such Lender shall not be required to deliver
any such Form or Certificate pursuant to this Section 5.4(b).
(c) BORROWER'S RIGHT TO WITHHOLD TAXES. Notwithstanding
anything to the contrary contained in Section 5.4(a), but subject to
Sections 5.4(b) and 13.4(b), (i) the Borrower shall be entitled, to the
extent it is required to do so by law, to deduct or withhold income or
similar taxes imposed by the United States (or any political
subdivision or taxing authority thereof or therein) from interest, Fees
or other amounts payable hereunder for the account of any Lender which
is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes to the
extent that such Lender has not provided to the Borrower U.S. Internal
Revenue Service Forms that establish a complete exemption from such
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deduction or withholding and (ii) the Borrower shall not be obligated
pursuant to Section 5.4(a) to gross-up payments to be made to a Lender
in respect of income or similar taxes imposed by the United States if
(A) such Lender has not provided to the Borrower the Internal Revenue
Service Forms required to be provided to the Borrower pursuant to
Section 5.4(b) or (B) in the case of a payment, other than interest, to
a Lender described in Section 5.4(b)(ii), to the extent that such Forms
do not establish a complete exemption from withholding of such taxes.
(d) CHANGE IN TAX LAWS. Subject to Section 5.4 and except as
set forth in Section 13.4(b), the Borrower further agrees to pay any
additional amounts and to indemnify each Lender in the manner set forth
in Section 5.4(a) (without regard to the identity of the jurisdiction
requiring the deduction or withholding) in respect of any Taxes
deducted or withheld by it as described in subsection (c) as a result
of any changes that are effective after the Closing Date in any
applicable law, treaty, governmental rule, regulation, guideline or
order, or in the interpretation thereof, relating to the deducting or
withholding of such Taxes.
ARTICLE VI
CONDITIONS PRECEDENT TO CREDIT EVENTS
Section 6.1 Closing Date. This Agreement shall become
effective as of the date (the "Closing Date") on which each of the following
conditions shall have been satisfied:
(a) the Borrower, the Administrative Agent and each of the
Lenders shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered the same to the
Administrative Agent at the Notice Office or, in the case of the
Lenders, shall have given to the Administrative Agent telephonic
(confirmed in writing), written or telex notice (actually received) at
such office that the same has been signed and mailed to it, and
(b) the Administrative Agent shall have determined that it has
received evidence, in form and substance reasonably satisfactory to it,
that the conditions set forth in Sections 6.2 through 6.20, inclusive,
have been satisfied (except for such conditions (i) which in the
Administrative Agent's determination are not sufficiently material to
justify a delay in closing and (ii) as to which the Borrower has given
written assurances to the Administrative Agent that such conditions
shall be satisfied within thirty days, it being expressly understood
and Borrower agrees that failure to timely satisfy such conditions
constitutes an Event of Default).
Section 6.2 Disclosure Letter; Notes. The Borrower shall cause
the Lenders to receive an executed copy of the Disclosure Letter, dated the
Closing Date, which shall be in form and substance satisfactory to the
Administrative Agent and the Required Lenders, and there shall have been
delivered to the Administrative Agent for the account of each of the Lenders
that has requested same the appropriate Term Note and/or Revolving Note executed
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by the Borrower and to the extent requested by the Swingline Lender, the
Swingline Note executed by the Borrower, in each case, in the amount, maturity
and as otherwise provided herein.
Section 6.3 Officer's Certificate. The Borrower shall cause
the Administrative Agent to receive a certificate, dated the Closing Date and
signed on behalf of the Borrower by the Chairman of the Board, the President,
the Chief Financial Officer, any Vice President, or the Secretary of the
Borrower, certifying on behalf of the Borrower that all of the conditions in
Sections 6.7, 6.8, 6.9 and 7.1 have been satisfied on such date (although no
such certification shall be required to the extent that any determination to be
made under any such Section is to be made by the Administrative Agent or any
Lender).
Section 6.4 Opinion of Counsel. The Borrower shall cause the
Administrative Agent to receive from Robins Kaplan Miller & Ciresi LLP, special
counsel to the Borrower, an opinion addressed to the Administrative Agent, the
Collateral Agent and each of the Lenders and dated the Closing Date in such form
and covering such matters as the Administrative Agent may reasonably request,
dated the Closing Date.
Section 6.5 Corporate Documents; Proceedings; etc.
(a) The Borrower shall cause the Administrative Agent to
receive a certificate from each Credit Party, dated the Closing Date,
signed by the Secretary or any Assistant Secretary of such Credit
Party, in the form of Exhibit G with appropriate insertions, together
with copies of the certificate of incorporation and by-laws (or
equivalent organizational documents) of such Credit Party and the
resolutions of such Credit Party referred to in such certificate, and
each of the foregoing shall be in form and substance reasonably
acceptable to the Administrative Agent.
(b) All corporate, partnership and limited liability company
and legal proceedings and all instruments and agreements in connection
with the transactions contemplated by this Agreement and the other
Credit Documents shall be reasonably satisfactory in form and substance
to the Administrative Agent and the Required Lenders, and the
Administrative Agent shall have received all information and copies of
all documents and papers, including records of corporate proceedings,
governmental approvals, good standing certificates and bring-down
telegrams or facsimiles, if any, which the Administrative Agent
reasonably may have requested in connection therewith, such documents
and papers where appropriate to be certified by proper corporate or
governmental authorities.
Section 6.6 Plans; Shareholders' Agreements; Employment
Agreements. The Borrower shall cause the Administrative Agent to receive true
and correct copies of the following documents:
(a) EMPLOYEE BENEFIT PLANS - all Plans (and for each Plan that
is required to file an annual report on Internal Revenue Service Form
5500-series, a copy of the
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most recent such report (including, to the extent required, the related
financial and actuarial statements and opinions and other supporting
statements, certifications, schedules and information), and for each
Plan that is subject to Title IV of ERISA and that is a
"single-employer plan," as defined in Section 4001(a)(15) of ERISA, the
most recently prepared actuarial valuation therefor); provided that,
the foregoing shall apply in the case of any multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, only to the extent that any
document described therein is in the possession of the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate or reasonably
available thereto from the sponsor or trustee of any such Plan
("Employee Benefit Plans");
(b) SHAREHOLDER AGREEMENTS - all agreements entered into by
the Borrower or any of its Subsidiaries governing the terms and
relative rights of its capital stock and any agreements entered into by
its shareholders relating to any such entity with respect to its
capital stock (collectively, the "Shareholders' Agreements");
(c) EMPLOYMENT AGREEMENTS - all material employment agreements
entered into by the Borrower or any of its Subsidiaries (collectively,
the "Employment Agreements");
all of which Employee Benefit Plans, Shareholders' Agreements, and Employment
Agreements shall be in full force and effect on the Closing Date.
Section 6.7 Fee Payment. The Borrower shall have paid all fees
and expenses to be paid by the Borrower under the Credit Documents in
conjunction with the execution and delivery of this Agreement.
Section 6.8 Adverse Change, etc.
(a) Nothing shall have occurred (and neither the
Administrative Agent nor any Lender shall have become aware of any
facts or conditions not previously known) which the Administrative
Agent or the Required Lenders shall reasonably determine has had, or
could reasonably be expected to have, a Material Adverse Effect.
(b) All necessary governmental (domestic and foreign) and
third party approvals and/or consents in connection with the
transactions contemplated by the Credit Documents and otherwise
referred to herein or therein shall have been obtained and remain in
effect, and all applicable waiting periods with respect thereto shall
have expired without any action being taken by any competent authority
which restrains, prevents or imposes materially adverse conditions upon
the consummation of the transactions contemplated by the Credit
Documents or otherwise referred to herein or therein. Additionally,
there shall not exist any judgment, order, injunction or other
restraint issued or filed or a hearing seeking injunctive relief or
other restraint pending or notified prohibiting or imposing materially
adverse conditions upon the transactions contemplated by the Credit
Documents or otherwise referred to herein or therein.
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Section 6.9 Litigation. There shall be no actions, suits or
proceedings pending or threatened (i) with respect to this Agreement or any
other Credit Document or (ii) which the Administrative Agent or the Required
Lenders shall reasonably determine could reasonably be expected to have a
Material Adverse Effect.
Section 6.10 Pledge Agreement. Each Credit Party shall have
duly authorized, executed and delivered to the Collateral Agent, the Pledge
Agreement and all of the Pledge Agreement Collateral, if any, referred to
therein and then owned by such Credit Party, endorsed in blank in the case of
promissory notes constituting Pledge Agreement Collateral and together with
executed and undated stock powers in the case of capital stock constituting
Pledge Agreement Collateral.
Section 6.11 Security Agreement. Each Credit Party shall have
duly authorized, executed and delivered to the Collateral Agent the Security
Agreement covering all of such Credit Party's present and future Security
Agreement Collateral.
Section 6.12 Defeasance of Indenture. On or before the Closing
Date, the Borrower shall have notified the Indenture Trustee that it intends to
satisfy all Indenture Indebtedness and shall have delivered to the Trustee the
opinion of independent public accountants as to the amount of the Indenture
Indebtedness described in Section 8.03(a) of the Indenture.
Section 6.13 Indenture Indebtedness. On or before the Closing
Date, the Administrative Agent shall have received: (i) evidence of the amount
necessary to redeem all issued and outstanding notes evidencing the Borrower's
obligation to pay the Indenture Indebtedness; (ii) an instruction from the
Borrower to pay such amount to the Indenture Trustee on the Closing Date, and
(iii) evidence that the Borrower has instructed the Indenture Trustee to redeem
all such notes.
Section 6.14 Mortgages. The Borrower shall have duly
authorized, executed and delivered the Mortgages in appropriate form for
recording, with respect to the properties located in Omaha, Nebraska, Carter
Lake, Iowa and Marshfield, Wisconsin, together with:
(a) funds sufficient to pay any filing or recording tax or fee
in connection with any and all UCC-1 financing statements and the
Mortgages;
(b) with respect to each Mortgaged Property, an ALTA Loan
Policy 1970 (10-17-70) (or other form acceptable to the Collateral
Agent and the Lenders) mortgagee policy of title insurance or a binder
issued by a title insurance company satisfactory to the Collateral
Agent and the Lenders insuring (or undertaking to insure, in the case
of a binder) that the Mortgage creates and constitutes a valid first
Lien against the Mortgaged Property in favor of the Collateral Agent,
subject only to exceptions acceptable to the Collateral Agent and the
Lenders, with such endorsements and affirmative insurance as the
Collateral Agent or any Lender may reasonably request;
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(c) evidence that the Collateral Agent has been named as
lender loss payee under all policies of casualty insurance, and as
additional insured under all policies of liability insurance, required
by the Mortgage;
(d) evidence that the Mortgaged Properties are covered by
flood insurance and earthquake insurance on terms satisfactory to the
Collateral Agent and the Lenders;
(e) current ALTA surveys and surveyor's certification as to
all real property and all land covered by a lease in respect of which
there is delivered a Mortgage, or as may be reasonably required by the
Collateral Agent, each in form and substance satisfactory to the
Collateral Agent and the Lenders;
(f) proof of payment of all title insurance premiums,
documentary stamp or intangible taxes, recording fees and mortgage
taxes payable in connection with the recording of any Mortgage or the
issuance of the title insurance policies (whether due on the Closing
Date or in the future) including sums due in connection with any future
advances;
(g) such consents, estoppels, subordination agreements and
other documents and instruments executed by landlords, tenants and
other Persons party to material contracts relating to any Collateral as
to which the Collateral Agent shall be granted a Lien for the benefit
of the Lenders, as requested by the Collateral Agent or any Lender; and
(h) evidence that all other actions necessary or, in the
opinion of the Collateral Agent or the Lenders, desirable to perfect
and protect the first priority Lien created by the Mortgages, and to
enhance the Collateral Agent's ability to preserve and protect its
interests in and access to the Collateral, have been taken;
Section 6.15 Evidence of Perfection, etc. The Administrative
Agent shall have received the following:
(a) evidence that financing statements naming each Credit
Party as debtor and the Collateral Agent as secured party have been
filed in all appropriate filing offices as may be necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect the
security interests purported to be created by the Security Agreement
and the Mortgages;
(b) evidence that no financing statement naming any Company as
debtor is of record except with respect to Permitted Liens or in
respect of which the Collateral Agent shall have received termination
statements or the authority to file termination statements upon
satisfaction of a Company's obligations to be satisfied on the Closing
Date;
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(c) to the extent the Collateral Agent shall request, duly
executed Control Agreements with respect to any Collateral in which a
security interest therein is perfected by control under the UCC; and
(d) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect and
protect the security interests purported to be created by the Security
Agreement have been taken.
Section 6.16 Subsidiaries' Guaranty. Each Subsidiary Guarantor
shall have duly authorized, executed and delivered to the Collateral Agent the
Subsidiaries' Guaranty.
Section 6.17 Insurance Policies. The Administrative Agent
shall have received standard lenders' loss payable endorsements with respect to
the insurance policies or other instruments or documents evidencing insurance
coverage on the properties of the Credit Parties in accordance with Section 9.3.
Section 6.18 Financial Statements; Projections. The
Administrative Agent shall have received true and correct copies of (i) the
financial statements referred to in Section 8.5(a), (ii) the Projections
referred to in Sections 8.5(d), and (iii) the internally prepared consolidated
and consolidating financial statements for the fiscal year ended December 31,
2003, all of which financial statements and Projections shall be in form and
substance reasonably satisfactory to the Administrative Agent and the Required
Lenders.
Section 6.19 Solvency Certificate; Insurance Certificates. On
or prior to the Closing Date, the Administrative Agent shall have received the
following dated the Closing Date:
(a) a solvency certificate from the chief financial officer of
the Borrower in the form of Exhibit H; and
(b) certificates of insurance complying with the requirements
of Section 9.3 for the business and properties of the Borrower and its
Subsidiaries, in form and substance reasonably satisfactory to the
Administrative Agent and naming the Collateral Agent as an additional
insured and as lender loss payee, and stating that such insurance shall
not be canceled without at least 30 days prior written notice by the
insurer to the Collateral Agent.
Section 6.20 Fees, etc. On or prior to the Closing Date, the
Borrower shall have paid to the Administrative Agent as arranger ("Arranger")
all costs, fees and expenses (including, without limitation, legal fees and
expenses) payable to the Administrative Agent and the Arranger to the extent
then due.
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ARTICLE VII
CONDITIONS PRECEDENT TO ALL CREDIT EVENTS.
The obligation of each Lender to make Loans (including Loans
made on the Closing Date), and the obligation of the Issuing Lender to issue
Letters of Credit, is subject, at the time of each such Credit Event (except as
hereinafter indicated), to the satisfaction of the following conditions:
Section 7.1 No Default; Representations and Warranties. At the
time of each such Credit Event and also after giving effect thereto (i) there
shall exist no Default or Event of Default and (ii) all representations and
warranties contained herein and in the other Credit Documents shall be true and
correct in all material respects with the same effect as though such
representations and warranties had been made on the date of such Credit Event
(it being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct in
all material respects only as of such specified date).
Section 7.2 Notice of Borrowing; Letter of Credit Request.
(a) Prior to the making of each Loan (other than a Swingline
Loan or a Revolving Loan made pursuant to a Mandatory Borrowing), the
Administrative Agent shall have received a Notice of Borrowing meeting
the requirements of Section 2.3(a). Prior to the making of each
Swingline Loan, the Swingline Lender shall have received the notice
referred to in Section 2.3(b)(i).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the Issuing Lender shall have received a
Letter of Credit Request meeting the requirements of Section 3.3(a).
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the Borrower to the Administrative Agent and each
of the Lenders that all the conditions specified in Article VI (with respect to
Credit Events on the Closing Date) and in this Article VII (with respect to
Credit Events on or after the Closing Date) and applicable to such Credit Event
exist as of that time. All of the Notes, certificates, legal opinions and other
documents and papers referred to in Article VI and in this Article VII, unless
otherwise specified, shall be delivered to the Administrative Agent at the
Notice Office for the account of each of the Lenders and, except for the Notes,
in sufficient counterparts or copies for each of the Lenders and shall be in
form and substance reasonably satisfactory to the Administrative Agent and the
Required Lenders.
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ARTICLE VIII
REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
In order to induce the Lenders to enter into this Agreement
and to make the Loans, and issue (or participate in) the Letters of Credit as
provided herein, the Borrower makes the following representations, warranties
and agreements all of which shall survive the execution and delivery of this
Agreement and the Notes and the making of the Loans and the issuance of the
Letters of Credit, with the occurrence of each Credit Event on or after the
Closing Date being deemed to constitute a representation and warranty that the
matters specified in this Article VIII are true and correct in all material
respects on and as of the Closing Date and on the date of each such other Credit
Event (it being understood and agreed that any representation or warranty which
by its terms is made as of a specified date shall be required to be true and
correct in all material respects only as of such specified date).
Section 8.1 Organizational Status. Each Company (other than an
Inactive Subsidiary) (i) is a duly organized and validly existing corporation,
partnership or limited liability company, as the case may be, in good standing
under the laws of the jurisdiction of its organization, (ii) has the corporate,
partnership or limited liability company power and authority, as the case may
be, to own its property and assets and to transact the business in which it is
engaged and presently proposes to engage and (iii) is duly qualified and is
authorized to do business and is in good standing in each jurisdiction where the
ownership, leasing or operation of its property or the conduct of its business
requires such qualifications except for failures to be so qualified which,
either individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
Section 8.2 Power and Authority. Each Credit Party has the
corporate, partnership or limited liability company power and authority, as the
case may be, to execute, deliver and perform the terms and provisions of each of
the Credit Documents to which it is party and has taken all necessary corporate,
partnership or limited liability company action, as the case may be, to
authorize the execution, delivery and performance by it of each of such Credit
Documents. Each Credit Party has duly executed and delivered each of the Credit
Documents to which it is party, and each of such Credit Documents constitutes
its legal, valid and binding obligation enforceable in accordance with its
terms, except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
Section 8.3 No Violation. Neither the execution, delivery or
performance by any Credit Party of the Credit Documents to which it is a party,
nor compliance by it with the terms and provisions thereof, (i) will contravene
any provision of any law, statute, rule or regulation or any order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict with or result in any breach of any of the terms, covenants, conditions
or provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien (except pursuant
to the
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Security Documents) upon any of the property or assets of any Credit Party
pursuant to the terms of, any indenture, mortgage, deed of trust, credit
agreement or loan agreement, or any other material agreement, contract or
instrument, in each case to which a Credit Party is a party or by which it or
any of its property or assets is bound or to which it may be subject or (iii)
will violate any provision of the certificate or articles of incorporation or
by-laws (or equivalent organizational documents) of any Credit Party.
Section 8.4 Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except for (a) the filing of financing statements and Mortgages to perfect the
security interest created under the Security Agreement and the Mortgages, as
applicable, and (b) those that have otherwise been obtained or made on or prior
to the Closing Date and which remain in full force and effect on the Closing
Date), or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of any Credit Document or (ii)
the legality, validity, binding effect or enforceability of any such Credit
Document.
Section 8.5 Financial Statements; Financial Condition;
Undisclosed Liabilities; Projections; etc.
(a) AUDITED FINANCIAL STATEMENTS.
(i) The audited consolidated balance sheets of the
Borrower for its fiscal years ended on December 31, 2001, 2002
and 2003, and the related audited consolidated statements of
income, cash flows and shareholders' equity of the Borrower
for the fiscal years ended on such dates, as the case may be,
copies of which have been furnished to the Lenders prior to
the Closing Date, present fairly in all material respects the
consolidated financial position of the Borrower at the dates
of such balance sheets and the consolidated results of the
operations of the Borrower for the periods covered thereby.
All of the foregoing financial statements have been prepared
in accordance with GAAP consistently applied.
(ii) Since December 31, 2003, there has been no
change in the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects
of any Company that has had, or could reasonably be expected
to have, either individually or in the aggregate, a Material
Adverse Effect.
(b) SOLVENCY. On and as of the Closing Date and after giving
effect to all Indebtedness (including the Loans) being incurred or
assumed and Liens created by the Credit Parties in connection therewith
(i) the sum of the assets, at a fair valuation, of each of the Borrower
on a stand-alone basis and the Companies taken as a whole will exceed
its debts; (ii) none of the Borrower on a stand-alone basis or the
Companies taken as a whole has incurred, intends to incur, or believes
that it will incur, debts beyond its ability to pay such debts as they
mature; and (iii) each of the
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Borrower on a stand-alone basis and the Companies taken as a whole will
have sufficient capital with which to conduct its business. For
purposes of this Section 8.5(b), "debt" means any liability on a claim,
and "claim" means (a) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured or (b) right to an equitable remedy for breach of performance
if such breach gives rise to a payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured,
unmatured, disputed, undisputed, secured or unsecured. The amount of
contingent liabilities at any time shall be computed as the amount
that, in the light of all the facts and circumstances existing at such
time, represents the amount that can reasonably be expected to become
an actual or matured liability.
(c) NO OTHER LIABILITIES. Except as fully disclosed in the
financial statements delivered pursuant to Section 8.5(a), there were
as of the Closing Date no liabilities or obligations with respect to
any Company of any nature whatsoever (whether absolute, accrued,
contingent or otherwise and whether or not due) which, either
individually or in the aggregate, could reasonably be expected to be
material to the Companies taken as a whole. As of the Closing Date, the
Borrower does not know of any basis for the assertion against it or any
of its Subsidiaries of any liability or obligation of any nature
whatsoever that is not fully disclosed in the financial statements
delivered pursuant to Section 8.5(a) which, either individually or in
the aggregate, could reasonably be expected to be material to the
Companies taken as a whole.
(d) PROJECTIONS. On and as of the Closing Date, the
Projections delivered to the Administrative Agent and the Lenders prior
to the Closing Date have been prepared in good faith and are based on
reasonable assumptions, and there are no statements or conclusions in
the Projections which are based upon or include information known to
the Borrower to be misleading in any material respect or which fail to
take into account material information known to the Borrower regarding
the matters reported therein. On the Closing Date, the Borrower
believes that the Projections are reasonable and attainable, it being
recognized by the Lenders, however, that projections as to future
events are not to be viewed as facts and that the actual results during
the period or periods covered by the Projections may differ from the
projected results and that the differences may be material.
Section 8.6 Litigation. There are no actions, suits or
proceedings pending or, to the best knowledge of the Borrower, threatened (i)
with respect to any Credit Documents, (ii) with respect to any material
Indebtedness of any Company or (iii) that are, either individually or in the
aggregate, reasonably likely to have a Material Adverse Effect.
Section 8.7 True and Complete Disclosure. All factual
information (taken as a whole) furnished by or on behalf of the Borrower in
writing to the Administrative Agent or any Lender (including, without
limitation, all information contained in the Credit
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Documents) for purposes of or in connection with this Agreement, the other
Credit Documents or any transaction contemplated herein or therein is, and all
other such factual information (taken as a whole) hereafter furnished by or on
behalf of the Borrower in writing to the Administrative Agent or any Lender will
be, true and accurate in all material respects on the date as of which such
information is dated or certified and not incomplete by omitting to state any
fact necessary to make such information (taken as a whole) not misleading in any
material respect at such time in light of the circumstances under which such
information was provided.
Section 8.8 Use of Proceeds; Payment to Indenture Trustee;
Margin Regulations.
(a) USE OF PROCEEDS. Except as set forth in Subsection (b),
all proceeds of the Loans will be used by the Borrower (i) to satisfy
all Indebtedness other than Permitted Indebtedness, (ii) to pay fees
and expenses related to the preparation, negotiation, execution and
delivery of the Credit Documents, for working capital and Capital
Expenditures, (iii) to finance Permitted Acquisitions, (iv) to finance
Restricted Payments, and (v) for other lawful corporate purposes.
(b) PAYMENT TO INDENTURE TRUSTEE. On the Closing Date, the
Borrower shall instruct the Administrative Agent to pay to the
Indenture Trustee $32,483,724.73 of the proceeds of the Loans made on
the Closing Date in order to redeem all notes evidencing the Borrower's
obligation to pay the Indenture Indebtedness in accordance with Article
3 of the Indenture and Section 6.12.
(c) MARGIN REGULATIONS. No part of any Credit Event (or the
proceeds thereof) will be used to purchase or carry any Margin Stock or
to extend credit for the purpose of purchasing or carrying any Margin
Stock. Neither the making of any Loan nor the use of the proceeds
thereof nor the occurrence of any other Credit Event will violate or be
inconsistent with the provisions of Regulation T, U or X of the Board
of Governors of the Federal Reserve System.
Section 8.9 Tax Returns and Payments. Each Company has filed
all federal and state income tax returns and all other material tax returns,
domestic and foreign, required to be filed by it and has paid all taxes and
assessments payable by it which have become due, except for immaterial taxes and
assessments and for those contested in good faith and adequately disclosed and
fully provided for on the financial statements of the Companies in accordance
with GAAP. Each Company has at all times paid, or has provided adequate reserves
(in the good faith judgment of the management of the Borrower) for the payment
of, all federal, state, local and foreign income taxes applicable for all prior
fiscal years and for the current fiscal year to date. There is no action, suit,
proceeding, investigation, audit, or claim now pending or, to the knowledge of
the Borrower threatened, by any authority regarding any taxes relating to any
Company that either individually or in the aggregate could reasonably be
expected to result in a material liability to any Company.
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Section 8.10 Compliance with ERISA.
(a) DOMESTIC PLANS. Schedule 2 of the Disclosure Letter sets
forth, as of the Closing Date, each Plan. Each Plan (and each related
trust, insurance contract or fund) is in compliance in all material
respects with its terms and with all applicable laws, including,
without limitation, ERISA and the Code; each Plan (and each related
trust, if any) which is intended to be qualified under Section 401(a)
of the Code has received a determination letter from the Internal
Revenue Service to the effect that it meets the requirements of
Sections 401(a) and 501(a) of the Code, as amended through the series
of legislation commonly known as "GUST", and timely application has
been made for a determination letter with respect to subsequent
legislation; no Reportable Event has occurred; no Plan which is a
multiemployer plan (as defined in Section 4001(a)(3) of ERISA) is
insolvent or in reorganization; no Plan has any material Unfunded
Current Liability; no Plan which is subject to Section 412 of the Code
or Section 302 of ERISA has an accumulated funding deficiency, within
the meaning of such sections of the Code or ERISA, as of the close if
its most recent fiscal year ended prior to the date of the most recent
Credit Event, or has applied for or received a waiver of an accumulated
funding deficiency or an extension of any amortization period, within
the meaning of Section 412 of the Code or Section 303 or 304 of ERISA;
all contributions required to be made with respect to a Plan have been
timely made; neither the Company nor any ERISA Affiliate has incurred
any material liability (including any indirect, contingent or secondary
liability) to or on account of a Plan pursuant to Section 409, 502(i),
502(l) or 515 of ERISA, Title IV of ERISA (other than liability for
premiums payments to the PBGC, which have been paid when due) or
Sections 401(a)(29), 4971 or 4975 of the Code or expects to incur any
such material liability under any of the foregoing sections with
respect to any Plan; no condition exists which presents a material risk
to any Company or any ERISA Affiliate of incurring a material liability
to or on account of a Plan pursuant to the foregoing provisions of
ERISA and the Code; no proceedings have been instituted to terminate or
appoint a trustee to administer any Plan which is subject to Title IV
of ERISA; no action, suit, proceeding, hearing, audit or investigation
with respect to the administration, operation or the investment of
assets of any Plan (other than routine claims for benefits) is pending
or, to the Borrower's knowledge, expected or threatened; using
actuarial assumptions and computation methods consistent with Part 1 of
subtitle E of Title IV of ERISA, the aggregate liabilities of the
Borrower and its ERISA Affiliates to all Plans which are multiemployer
plans (as defined in Section 4001(a)(3) of ERISA) in the event of a
complete withdrawal therefrom, as of the close of the most recent
fiscal year of each such Plan ended prior to the date of the most
recent Credit Event, would not exceed $500,000; and no lien imposed
under the Code or ERISA on the assets of the Borrower or any Subsidiary
of the Borrower or any ERISA Affiliate exists or is likely to arise on
account of any Plan.
(b) FOREIGN PENSION PLANS. Each Foreign Pension Plan is in
compliance in all material respects with its terms and with the
requirements of any and all applicable laws, and has been maintained,
where required, in good standing with applicable
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regulatory authorities. All material contributions required to be made
with respect to a Foreign Pension Plan have been timely made. Neither
the Borrower nor any of its Subsidiaries has incurred any material
obligation in connection with the termination of or withdrawal from any
Foreign Pension Plan. The present value of the accrued benefit
liabilities (whether or not vested) under each Foreign Pension Plan,
determined as of the end of the Borrower's recently ended fiscal year
on the basis of actuarial assumptions, each of which is reasonable, did
not exceed in any material respect the current value of the assets of
such Foreign Pension Plan allocable to such benefit liabilities.
Section 8.11 The Security Documents.
(a) The provisions of the Security Agreement are effective to
create in favor of the Collateral Agent for the benefit of the Secured
Creditors a legal, valid and enforceable security interest in all
right, title and interest of the Credit Parties in the Security
Agreement Collateral described therein, and the Collateral Agent, for
the benefit of the Secured Creditors, has a fully perfected first lien
on, and security interest in, all right, title and interest in all of
the Security Agreement Collateral described therein, free and clear of
all other Liens other than Permitted Liens. The recordation of (x) the
Grant of Security Interest in U.S. Patents and (y) the Grant of
Security Interest in U.S. Trademarks in the respective form attached to
the Security Agreement, in each case in the United States Patent and
Trademark Office, together with filings on Form UCC-1 made pursuant to
the Security Agreement, will create, as may be perfected by such
filings and recordation, a perfected security interest in the United
States trademarks and patents covered by the Security Agreement, and
the recordation of the Grant of Security Interest in U.S. Copyrights in
the form attached to the Security Agreement with the United States
Copyright Office, together with filings on Form UCC-1 made pursuant to
the Security Agreement, will create, as may be perfected by such
filings and recordation, a perfected security interest in the United
States copyrights covered by the Security Agreement.
(b) The security interests created in favor of the Collateral
Agent, as Pledgee, for the benefit of the Secured Creditors, under the
Pledge Agreement constitute first priority perfected security interests
in the Pledge Agreement Collateral described in the Pledge Agreement,
free and clear of all other Liens. No filings or recordings are
required in order to perfect (or maintain the perfection or priority
of) the security interests created in the Pledge Agreement Collateral
under the Pledge Agreement.
(c) If and when a Mortgage is created, each such Mortgage
creates, as security for the obligations purported to be secured
thereby, a valid and enforceable perfected security interest in and
mortgage lien on the respective Mortgaged Property in favor of the
Collateral Agent (or such other trustee as may be required or desired
under local law) for the benefit of the Secured Creditors, superior to
and prior to the rights of all third persons (except that the security
interest and mortgage lien created
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on such Mortgaged Property may be subject to the Permitted Encumbrances
related thereto) and subject to no other Liens (other than Permitted
Liens related thereto).
Section 8.12 Representations and Warranties in the Credit
Documents. All representations and warranties set forth in the other Credit
Documents were true and correct in all material respects at the time as of which
such representations and warranties were made (or deemed made) and shall be true
and correct in all material respects as of the Closing Date as if such
representations and warranties were made on and as of such date, unless stated
to relate to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such earlier
date.
Section 8.13 Properties. All Real Property owned or leased by
the Borrower or any of its Subsidiaries as of the Closing Date, and the nature
of the interest therein, is correctly set forth on Schedule 1 of the Disclosure
Letter. Each of the Borrower and each of its Subsidiaries has good and
marketable title to all material properties owned by it, including all property
reflected in Schedule 1 of the Disclosure Letter and in the most recent
historical balance sheets of the Borrower referred to in Section 8.5(a) (except
as sold or otherwise disposed of since the date of such balance sheet in the
ordinary course of business or as permitted by the terms of this Agreement),
free and clear of all Liens, other than Permitted Liens.
Section 8.14 Capitalization. On the Closing Date, the
authorized capital stock of the Borrower shall consist of (i) 295,000,000 shares
of common stock, $0.0025 par value per share, and (ii) 5,000,000 shares of
preferred stock, $0.0025 par value per share, of which no shares of such
preferred stock shall be issued and outstanding. All outstanding shares of the
capital stock of the Borrower have been duly and validly issued and are fully
paid and non-assessable. The Borrower does not have outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any rights
to subscribe for or to purchase, or any options for the purchase of, or any
agreement providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to, its capital stock, except
(i) as set forth in any Shareholders' Agreement as in effect on the Closing
Date, (ii) for options, warrants and rights to purchase shares of the Borrower's
common stock or Qualified Preferred Stock which may be issued from time to time
and (iii) for any Indebtedness that may be issued or incurred from time to time
under Section 10.4(k) which may be convertible into shares of the Borrower's
common stock.
Section 8.15 Subsidiaries. As of the Closing Date, the
Borrower has no Subsidiaries other than those Subsidiaries listed on Schedule 3
of the Disclosure Letter. Schedule 3 of the Disclosure Letter correctly sets
forth, as of the Closing Date, (i) the percentage ownership (direct or indirect)
of the Borrower in each class of capital stock or other equity of each of its
Subsidiaries and also identifies the direct owner thereof and (ii) the
jurisdiction of organization of each such Subsidiary.
Section 8.16 Compliance with Statutes, etc. Each of the
Borrower and each of its Subsidiaries is in compliance with all applicable
statutes, regulations and orders of, and all
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applicable restrictions imposed by, all governmental bodies, domestic or
foreign, in respect of the conduct of its business and the ownership of its
property (including, without limitation, applicable statutes, regulations,
orders and restrictions relating to environmental standards and controls),
except such noncompliances as could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
Section 8.17 Investment Company Act. Neither the Borrower nor
any of its Subsidiaries is an "investment company" or a company "controlled" by
an "investment company," within the meaning of the Investment Company Act of
1940.
Section 8.18 Public Utility Holding Company Act. Neither the
Borrower nor any of its Subsidiaries is a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935.
Section 8.19 Environmental Matters.
(a) Each of the Borrower and each of its Subsidiaries is in
compliance with all applicable Environmental Laws and the requirements
of any permits issued under such Environmental Laws. There are no
pending or, to the knowledge of the Borrower, threatened Environmental
Claims against the Borrower or any of its Subsidiaries or any Real
Property owned, leased or operated by the Borrower or any of its
Subsidiaries (including any such claim arising out of the ownership,
lease or operation by the Borrower or any of its Subsidiaries of any
Real Property formerly owned by the Borrower or any of its Subsidiaries
but no longer owned, leased or operated by the Borrower or any of its
Subsidiaries). There are no facts, circumstances, conditions or
occurrences with respect to the business or operations of the Borrower
or any of its Subsidiaries, or any Real Property owned, leased or
operated by the Borrower or any of its Subsidiaries (including, to the
knowledge of the Borrower, any Real Property formerly owned, leased or
operated by the Borrower or any of its Subsidiaries but no longer
owned, leased or operated by the Borrower or any of its Subsidiaries)
or, to the knowledge of the Borrower, any property adjoining or
adjacent to any such Real Property that could be reasonably expected
(i) to form the basis of an Environmental Claim against the Borrower or
any of its Subsidiaries or any Real Property owned, leased or operated
by the Borrower or any of its Subsidiaries or (ii) to cause any Real
Property owned, leased or operated by the Borrower or any of its
Subsidiaries to be subject to any restrictions on the ownership, lease,
occupancy or transferability of such Real Property by the Borrower or
any of its Subsidiaries under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated,
used, treated or stored on, or transported to or from, any Real
Property owned, leased or operated by the Borrower or any of its
Subsidiaries where such generation, use, treatment, storage or
transportation has violated or could reasonably be expected to violate
any Environmental Law or give rise to an Environmental Claim. Hazardous
Materials
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have not at any time been Released on or from any Real Property owned,
leased or operated by the Borrower or any of its Subsidiaries where
such Release has violated or could reasonably be expected to violate
any applicable Environmental Law.
(c) Notwithstanding anything to the contrary in this Section
8.19, the representations and warranties made in this Section 8.19
shall not be untrue unless the effect of any or all conditions,
violations, claims, restrictions, failures and noncompliances of the
types described above could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 8.20 Labor Relations. Neither the Borrower nor any of
its Subsidiaries is engaged in any unfair labor practice that could reasonably
be expected to, either individually or in the aggregate, have a Material Adverse
Effect. There is (i) no unfair labor practice complaint pending against the
Borrower or any of its Subsidiaries or, to the knowledge of the Borrower,
threatened against any of them, before the National Labor Relations Board, and
no grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Borrower or any of its
Subsidiaries or, to the knowledge of the Borrower, threatened against any of
them, (ii) no strike, labor dispute, slowdown or stoppage pending against the
Borrower or any of its Subsidiaries or, to the knowledge of the Borrower,
threatened against the Borrower or any of its Subsidiaries and (iii) no union
representation question exists with respect to the employees of the Borrower or
any of its Subsidiaries, except (with respect to any matter specified in clause
(i), (ii) or (iii) above, either individually or in the aggregate) such as could
not reasonably be expected to have a Material Adverse Effect.
Section 8.21 Patents, Licenses, Franchises and Formulas. Each
of the Borrower and each of its Subsidiaries owns or has the right to use all
the domestic and foreign patents, trademarks, permits, service marks, trade
names, copyrights, licenses, franchises, proprietary information (including, but
not limited to, rights in computer programs, databases and data collections) and
formulas, or rights with respect to the foregoing, and has obtained assignments
of all leases and other rights of whatever nature, necessary for the present
conduct of its business, without any known conflict with the rights of others
which, or the failure to obtain which, as the case may be, could reasonably be
expected, either individually or in the aggregate, to result in a Material
Adverse Effect.
Section 8.22 Existing Indebtedness. Schedule 4 of the
Disclosure Letter sets forth a true and complete list of all Indebtedness
(including Contingent Obligations) of the Companies as of the Closing Date and
which is to remain outstanding (excluding the Loans and the Letters of Credit
and the Indenture Indebtedness, the "Existing Indebtedness"), in each case
showing the aggregate principal amount thereof and the name of the respective
borrower and any Credit Party or any of its Subsidiaries which directly or
indirectly guarantees such debt.
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Section 8.23 Insurance. Schedule 5 of the Disclosure Letter
sets forth a true and complete listing of all insurance maintained by the
Companies as of the Closing Date, with the amounts insured (and any deductibles)
set forth therein.
ARTICLE IX
AFFIRMATIVE COVENANTS.
The Borrower hereby covenants and agrees that on and after the
Closing Date and until the Total Commitment and all Letters of Credit have
terminated and the Loans, Notes and Unpaid Drawings (in each case together with
interest thereon), Fees and all other Obligations (other than indemnities
described in Section 13.12 which are not then due and payable) incurred
hereunder and thereunder, are paid in full.
Section 9.1 Information Covenants. The Borrower will furnish
to each Lender:
(a) MONTHLY REPORTS. Within 30 days after the end of each
fiscal month of the Borrower (commencing with its fiscal month ending
on March 31, 2004), the consolidated balance sheet of the Companies as
at the end of such fiscal month as well as the related consolidated
statement of retained earnings and statement of cash flows and the
consolidated and consolidating statements of income for such fiscal
month and for the elapsed portion of the fiscal year ended with the
last day of such fiscal month, in each case setting forth comparative
figures for the corresponding fiscal month in the prior fiscal year and
comparable budgeted figures for such fiscal month, all of which shall
be certified by the chief financial officer of the Borrower that they
fairly present in all material respects in accordance with GAAP the
financial condition of the Companies as of the dates indicated and the
results of their operations for the periods indicated, subject to
normal year-end audit adjustments and the absence of footnotes.
(b) QUARTERLY FINANCIAL STATEMENTS. Within 45 days after the
close of the first three quarterly accounting periods in each fiscal
year of the Borrower (commencing with its quarterly accounting period
ending on March 31, 2004), (i) the consolidated balance sheet of the
Companies as at the end of such quarterly accounting period and the
related consolidated statements of income and retained earnings and
statement of cash flows for such quarterly accounting period and for
the elapsed portion of the fiscal year ended with the last day of such
quarterly accounting period, in each case setting forth comparative
figures for the related periods in the prior fiscal year, all of which
shall be certified by the chief financial officer of the Borrower that
they fairly present in all material respects in accordance with GAAP
the financial condition of the Companies as of the dates indicated and
the results of their operations for the periods indicated, subject to
normal year-end audit adjustments and the absence of footnotes, and
(ii) management's discussion and analysis of the important operational
and financial developments during such
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quarterly accounting period (it being understood that any management's
discussion and analysis set forth in the Borrower's Form 10-Q for such
quarterly accounting period and delivered to the Lenders shall satisfy
the provisions of this clause (ii)).
(c) ANNUAL FINANCIAL STATEMENTS. Within 90 days after the
close of each fiscal year of the Borrower, (i) the consolidated balance
sheet of the Companies as at the end of such fiscal year and the
related consolidated statements of income and retained earnings and
statement of cash flows for such fiscal year setting forth comparative
figures for the preceding fiscal year and certified by KPMG Peat
Marwick LLP or such other independent certified public accountants of
recognized national standing reasonably acceptable to the
Administrative Agent, together with a report of such accounting firm
stating that in the course of its regular audit of the financial
statements of the Borrower and its Subsidiaries, which audit was
conducted in accordance with GAAP, such accounting firm obtained no
knowledge of any Default or an Event of Default relating to financial
and accounting matters which has occurred and is continuing or, if in
the opinion of such accounting firm such a Default or Event of Default
has occurred and is continuing, a statement as to the nature thereof,
and (ii) management's discussion and analysis of the important
operational and financial developments during such fiscal year (it
being understood that any management's discussion and analysis set
forth in the Borrower's Form 10-K for such quarterly accounting period
and delivered to the Lenders shall satisfy the provisions of this
clause (ii)).
(d) MANAGEMENT LETTERS. Promptly after the Borrower's or any
of its Subsidiaries' receipt thereof, a copy of any "management letter"
received from its certified public accountants and management's
response thereto.
(e) BUDGETS. No later than 30 days following the first day of
each fiscal year of the Borrower, a budget in form reasonably
satisfactory to the Administrative Agent (including budgeted statements
of income, sources and uses of cash and balance sheets) prepared by the
Borrower (i) for each of the twelve months of such fiscal year prepared
in detail and (ii) for each of the immediately three succeeding fiscal
years prepared in summary form, in each case setting forth, with
appropriate discussion, the principal assumptions upon which such
budgets are based.
(f) OFFICER'S CERTIFICATES. At the time of the delivery of the
financial statements provided for in Sections 9.1(b) and (c), a
certificate, substantially in the form of Exhibit L, of the chief
financial officer of the Borrower certifying on behalf of the Borrower
that, to the best of such officer's knowledge, no Default or Event of
Default exists or, if any Default or Event of Default exists,
specifying the nature and extent thereof, which certificate shall (i)
set forth in reasonable detail the calculations required to establish
whether the Companies were in compliance with the provisions of
Sections 5.2(e), 5.2(f), 10.2(e), 10.3(c), 10.4, 10.5, 10.7, 10.8, 10.9
and 10.10 at the end of such fiscal quarter or year, as the case may
be, and (ii) commencing with the delivery of the financial statements
in respect of the Borrower's fiscal quarter ending
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on March 31, 2004, the Applicable Margin for Term Loans, Revolving
Loans and Swingline Loans for the Margin Reduction Period commencing
with the delivery of the such financial statements.
(g) NOTICE OF DEFAULT OR LITIGATION. Promptly upon, and in any
event within five Business Days after, any principal, senior or
executive officer of the Borrower obtains knowledge thereof, notice of
(i) the occurrence of any event which constitutes a Default or an Event
of Default and (ii) any litigation or governmental investigation or
proceeding pending (x) against the Borrower or any of its Subsidiaries
which could reasonably be expected to have a Material Adverse Effect,
(y) with respect to any material Indebtedness of the Borrower or any of
its Subsidiaries or (z) with respect to any Credit Document.
(h) OTHER REPORTS AND FILINGS. Promptly after the filing or
delivery thereof, copies of all financial information, proxy materials
and reports, if any, which the Borrower or any of its Subsidiaries
shall publicly file with the Securities and Exchange Commission or any
successor thereto (the "SEC") or deliver to holders (or any trustee,
agent or other representative therefor) of its material Indebtedness
pursuant to the terms of the documentation governing such Indebtedness.
(i) ENVIRONMENTAL MATTERS. Promptly after any principal,
senior or executive officer of the Borrower obtains knowledge thereof,
notice of one or more of the following environmental matters, unless
such environmental matters could not, either individually or when
aggregated with all other such environmental matters, be reasonably
expected to have a Material Adverse Effect:
(i) any pending or threatened Environmental Claim
against the Borrower or any of its Subsidiaries or any Real
Property owned, leased or operated by the Borrower or any of
its Subsidiaries;
(ii) any condition or occurrence on or arising from
any Real Property owned, leased or operated by the Borrower or
any of its Subsidiaries that (a) results in noncompliance by
the Borrower or any of its Subsidiaries with any applicable
Environmental Law or (b) could be expected to form the basis
of an Environmental Claim against the Borrower or any of its
Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Real
Property owned, leased or operated by the Borrower or any of
its Subsidiaries that could be expected to cause such Real
Property to be subject to any restrictions on the ownership,
lease, occupancy, use or transferability by the Borrower or
any of its Subsidiaries of such Real Property under any
Environmental Law; and
(iv) the taking of any removal or remedial action in
response to the actual or alleged presence of any Hazardous
Material on any Real Property owned, leased or operated by the
Borrower or any of its Subsidiaries as required by any
Environmental Law or any governmental or other
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administrative agency; provided that in any event the Borrower
shall deliver to each Lender all notices received by the
Borrower or any of its Subsidiaries from any government or
governmental agency under, or pursuant to, CERCLA which
identify the Borrower or any of its Subsidiaries as
potentially responsible parties for redemption costs or which
otherwise notify the Borrower or any of its Subsidiaries of
potential liability under CERCLA.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial
action and the Borrower's or such Subsidiary's response thereto.
(j) OTHER INFORMATION. From time to time, such other
information or documents (financial or otherwise) with respect to the
Borrower or any of its Subsidiaries as the Administrative Agent or any
Lender may reasonably request.
(k) DEBT RATINGS. A notice promptly upon any announcement by
Moody's or S&P of any change or possible change in a Debt Rating.
Section 9.2 Books, Records and Inspections; Annual Meetings.
(a) The Borrower will, and will cause each of its Subsidiaries
to, keep proper books of record and accounts in which entries
sufficient to prepare the financial statements required to be delivered
pursuant to this Agreement in conformity with GAAP and all requirements
of law shall be made of all dealings and transactions in relation to
its business and activities. The Borrower will, and will cause each of
its Subsidiaries to, permit officers and designated representatives of
the Administrative Agent or any Lender to visit and inspect, under
guidance of officers of the Borrower or such Subsidiary, any of the
properties of the Borrower or such Subsidiary, and to examine the books
of account of the Borrower or such Subsidiary and discuss the affairs,
finances and accounts of the Borrower or such Subsidiary with, and be
advised as to the same by, its and their officers and independent
accountants, all upon reasonable prior notice and at such reasonable
times and intervals and to such reasonable extent as the Administrative
Agent or such Lender may reasonably request.
(b) At a date to be mutually agreed upon between the
Administrative Agent and the Borrower occurring on or prior to the
120th day after the close of each fiscal year of the Borrower, the
Borrower will, at the request of the Administrative Agent, hold a
meeting or a conference call with all of the Lenders at which meeting
or a conference call shall be reviewed the financial results of the
Companies for the previous fiscal year and the budgets presented for
the current fiscal year of the Borrower.
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Section 9.3 Maintenance of Property; Insurance.
(a) The Borrower will, and will cause each of its Subsidiaries
to, (i) keep all material property necessary to the business of the
Companies in reasonably good working order and condition, ordinary wear
and tear and obsolescence excepted, (ii) maintain with financially
sound and reputable insurance companies insurance on all such property
in at least such amounts and against at least such risks as is
consistent and in accordance with industry practice for companies
similarly situated owning similar properties in the same general areas
in which the Borrower or any of its Subsidiaries operates, and (iii)
furnish to the Administrative Agent, together with each set of
financial statements delivered pursuant to Section 9.1(c), full
information as to the insurance carried.
(b) The Borrower will, and will cause each of the Subsidiary
Guarantors to, at all times keep its property insured in favor of the
Collateral Agent, and all policies or certificates (or certified copies
thereof) with respect to such insurance (and any other insurance
maintained by the Borrower and/or such Subsidiary Guarantors) (i) shall
be endorsed to the Collateral Agent's satisfaction for the benefit of
the Collateral Agent (including, without limitation, by naming the
Collateral Agent as loss payee and/or additional insured), (ii) shall
state that such insurance policies shall not be canceled without at
least 30 days' prior written notice thereof by the respective insurer
to the Collateral Agent, (iii) shall provide that the respective
insurers irrevocably waive any and all rights of subrogation with
respect to the Collateral Agent and the other Secured Creditors, (iv)
shall contain the standard non-contributing mortgage clause endorsement
in favor of the Collateral Agent with respect to hazard liability
insurance, (v) shall, except in the case of public liability insurance,
provide that any losses shall be payable notwithstanding (A) any
foreclosure or other proceeding relating to the insured properties or
(B) any change in the title to or ownership or possession of the
insured properties and (vi) shall be deposited with the Collateral
Agent.
(c) If the Borrower or any of its Subsidiaries shall fail to
insure its property in accordance with this Section 9.3, or if the
Borrower or any of its Subsidiaries shall fail to so endorse and
deposit all policies or certificates with respect thereto, the
Administrative Agent shall have the right (but shall be under no
obligation) to procure such insurance and the Borrower agrees to
reimburse the Administrative Agent for all reasonable costs and
expenses of procuring such insurance.
Section 9.4 Existence; Franchises. The Borrower will, and will
cause each of its Subsidiaries (other than Inactive Subsidiaries) to, do or
cause to be done, all things necessary to preserve and keep in full force and
effect its existence and its material rights, franchises, licenses and patents;
provided, however, that nothing in this Section 9.4 shall prevent (i) sales of
assets and other transactions by the Borrower or any of its Subsidiaries in
accordance with Section 10.2 or (ii) the withdrawal by the Borrower or any of
its Subsidiaries of its qualification as a foreign corporation in any
jurisdiction where such
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withdrawal could not, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
Section 9.5 Compliance with Statutes, etc. The Borrower will,
and will cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except such noncompliances as could not, either individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 9.6 Compliance with Environmental Laws.
(a) The Borrower will comply, and will cause each of its
Subsidiaries to comply, with all Environmental Laws and permits
applicable to, or required by, the ownership, lease or use of its Real
Property now or hereafter owned, leased or operated by the Borrower or
any of its Subsidiaries, will promptly pay or cause to be paid all
costs and expenses incurred in connection with such compliance, and
will keep or cause to be kept all such Real Property free and clear of
any Liens imposed pursuant to such Environmental Laws, except such
noncompliances as could not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Neither the
Borrower nor any of its Subsidiaries will generate, use, treat, store,
Release or dispose of, or permit the generation, use, treatment,
storage, Release or disposal of Hazardous Materials on any Real
Property now or hereafter owned, leased or operated by the Borrower or
any of its Subsidiaries, or transport or permit the transportation of
Hazardous Materials to or from any such Real Property, except for
Hazardous Materials generated, used, treated, stored, Released or
disposed of at any such Real Properties in compliance in all material
respects with all applicable Environmental Laws and as reasonably
required in connection with the normal operation, use and maintenance
of the business or operations of the Borrower or any of its
Subsidiaries.
(b) At the reasonable written request of the Administrative
Agent or the Required Lenders, which request shall specify in
reasonable detail the basis therefor, at any time and from time to
time, the Borrower will provide, at the sole expense of the Borrower,
an environmental site assessment report concerning any Real Property
owned, leased or operated by the Borrower or any of its Subsidiaries,
prepared by an environmental consulting firm reasonably approved by the
Administrative Agent, indicating the presence or absence of Hazardous
Materials and the potential cost of any removal or remedial action in
connection with such Hazardous Materials on such Real Property,
provided that (i) unless the Lenders or the Administrative Agent has
received any notice of the type described in Section 9.1(i) or (ii) the
Lenders have exercised any of the remedies pursuant to Section 11.2,
such request may not be made more than once every two years in respect
of any parcel of Real Property. If the Borrower fails to provide same
within 90 days after such request was made, the
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Administrative Agent may order the same, the cost of which shall be
borne by the Borrower and the Borrower shall grant and hereby grant to
the Administrative Agent and the Lenders and their respective agents
access to such Real Property and specifically grant the Administrative
Agent and the Lenders an irrevocable non-exclusive license, subject to
the rights of tenants, to undertake such an assessment at any
reasonable time upon reasonable notice to the Borrower, all at the sole
expense of the Borrower.
Section 9.7 ERISA. As soon as possible and, in any event,
within ten (10) days after the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate knows or has reason to know of the occurrence of any of the
following, the Borrower will deliver to each of the Lenders a certificate of the
chief financial officer of the Borrower setting forth in reasonable detail
information as to such occurrence and the action, if any, that the Borrower,
such Subsidiary or such ERISA Affiliate is required or proposes to take,
together with any notices required or proposed to be given to or filed with or
by the Borrower, the Subsidiary, the ERISA Affiliate, the PBGC or any other
governmental agency, a Plan participant or the Plan administrator with respect
thereto: (i) that a Reportable Event has occurred (except to the extent that the
Borrower has previously delivered to the Lenders a certificate and notices (if
any) concerning such event pursuant to the next clause hereof); (ii) that a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA is subject to the advance reporting requirement of
PBGC Regulation Section 4043.61 (without regard to subparagraph (b)(1) thereof),
or that an advance notice of a Reportable Event is otherwise filed (or required
to be filed) with the PBGC under Section 4043 of ERISA; (iii) that an
accumulated funding deficiency, within the meaning of Section 412 of the Code or
Section 302 of ERISA, has been incurred or an application may be or has been
made for a waiver or modification of the minimum funding standard (including any
required installment payments) or an extension of any amortization period under
Section 412 of the Code or Section 303 or 304 of ERISA with respect to a Plan;
(iv) that any contribution required to be made with respect to a Plan or Foreign
Pension Plan has not been timely made; (v) that a Plan that is subject to Title
IV of ERISA has been or may be terminated, reorganized, partitioned or declared
insolvent under Title IV of ERISA, or that a Foreign Pension Plan that is a
defined benefit or superannuation plan has been or may be terminated,
reorganized, partitioned or declared insolvent under applicable foreign law;
(vi) that a Plan has an Unfunded Current Liability; (vii) that proceedings may
be or have been instituted to terminate or appoint a trustee to administer a
Plan which is subject to Title IV of ERISA; (viii) that a proceeding has been
instituted pursuant to Section 515 of ERISA to collect a delinquent contribution
to a Plan; or (ix) that the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate will or may incur any material liability (including any
indirect, contingent, or secondary liability) to or on account of the
termination of or withdrawal from a Plan under Title IV of ERISA or with respect
to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section
409 or 502(i) or 502(l) of ERISA. The Borrower will deliver to each of the
Lenders copies of any records, documents or other information that must be
furnished to the PBGC with respect to any Plan pursuant to Section 4010 of
ERISA. Upon the request of the Administrative Agent or any Lender, the Borrower
will also deliver to the Administrative Agent or such Lender a complete copy of
the annual report (on Internal
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Revenue Service Form 5500-series) of each Plan (including, to the extent
required, the related financial and actuarial statements and opinions and other
supporting statements, certifications, schedules and information) required to be
filed with the Internal Revenue Service. In addition to any certificates or
notices delivered to the Lenders pursuant to the first sentence hereof, copies
of annual reports and any records, documents or other information required to be
furnished to the PBGC or any other governmental agency, and any material notices
received by the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
with respect to any Plan or Foreign Pension Plan shall be delivered to the
Lenders no later than ten (10) days after the date such annual report has been
filed with the Internal Revenue Service or such records, documents and/or
information has been furnished to the PBGC or any other governmental agency or
such notice has been received by the Borrower, the respective Subsidiary or the
ERISA Affiliate, as applicable. The Borrower and each of its Subsidiaries shall
insure that all Foreign Pension Plans administered by it or into which it makes
payments obtains or retains (as applicable) registered status under and as
required by applicable law and is administered in a timely manner in all
respects in compliance with all applicable laws except where the failure to do
any of the foregoing could not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 9.8 End of Fiscal Years; Fiscal Quarters. The Borrower
will cause (i) its fiscal year to end on the last day of one of the fiscal
quarters set forth in clause (ii) below and (ii) each of its fiscal quarters to
end on March 31, June 30, September 30 and December 31 of each year.
Section 9.9 Performance of Obligations. The Borrower will, and
will cause each of its Subsidiaries to, perform all of its obligations under the
terms of each mortgage, indenture, security agreement, loan agreement or credit
agreement and each other material agreement, contract or instrument by which it
is bound, except such non-performances as could not, either individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 9.10 Payment of Taxes. The Borrower will pay and
discharge, and will cause each of its Subsidiaries to pay and discharge, all
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits, or upon any properties belonging to it, prior to the date
on which penalties attach thereto, and all lawful claims for sums that have
become due and payable which, if unpaid, might become a Lien not otherwise
permitted under Section 10.1(a); provided that neither the Borrower nor any of
its Subsidiaries shall be required to pay any such tax, assessment, charge, levy
or claim which is immaterial or is being contested in good faith and by proper
proceedings if it has maintained adequate reserves with respect thereto in
accordance with GAAP.
Section 9.11 Additional Security; Further Assurances.
(a) The Borrower will, and will cause each of its Domestic
Subsidiaries (other than an Inactive Subsidiary) and, to the extent
required by Section 9.13, each of
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its Foreign Subsidiaries to, grant to the Collateral Agent security
interests and Mortgages in such assets and properties of the Borrower
and such Subsidiaries as are not covered by the original Security
Documents, and as may be reasonably requested from time to time by the
Required Lenders (collectively, the "Additional Security Documents").
All such security interests and Mortgages shall be granted pursuant to
documentation reasonably satisfactory in form and substance to the
Administrative Agent and shall constitute valid and enforceable
perfected security interests and Mortgages superior to and prior to the
rights of all third Persons and subject to no other Liens except for
Permitted Liens. The Additional Security Documents or instruments
related thereto shall have been duly recorded or filed in such manner
and in such places as are required by law to establish, perfect,
preserve and protect the Liens in favor of the Collateral Agent
required to be granted pursuant to the Additional Security Documents
and all taxes, fees and other charges payable in connection therewith
shall have been paid in full.
(b) The Borrower will, and will cause each of the Subsidiary
Guarantors to, at the expense of the Borrower, make, execute, endorse,
acknowledge, file and/or deliver to the Collateral Agent from time to
time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, real property surveys, reports, landlord
waivers and other assurances or instruments and take such further steps
relating to the Collateral covered by any of the Security Documents as
the Collateral Agent may reasonably require. Furthermore, the Borrower
will cause to be delivered to the Collateral Agent such opinions of
counsel, title insurance and other related documents as may be
reasonably requested by the Administrative Agent to assure itself that
this Section 9.11 has been complied with.
(c) If the Administrative Agent or the Required Lenders
reasonably determine that they are required by law or regulation to
have appraisals prepared in respect of the Real Property of the
Companies constituting Collateral, the Borrower will, at its own
expense, provide to the Administrative Agent appraisals which satisfy
the applicable requirements of the Real Estate Appraisal Reform
Amendments of the Financial Institution Reform, Recovery and
Enforcement Act of 1989, and which shall otherwise be in form and
substance reasonably satisfactory to the Administrative Agent.
(d) The Borrower agrees that each action required above by
this Section 9.11 shall be completed as soon as possible, but in no
event later than 90 days after such action is either requested to be
taken by the Administrative Agent or the Required Lenders or required
to be taken by the Borrower and/or its Subsidiaries pursuant to the
terms of this Section 9.11; provided that, in no event will the
Borrower or any of its Subsidiaries be required to take any action,
other than using its best efforts, to obtain consents from third
parties with respect to its compliance with this Section 9.11.
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Section 9.12 Use of Proceeds. The Borrower will use the
proceeds of the Loans only as provided in Section 8.8.
Section 9.13 Foreign Subsidiaries Security. If, following a
change in the relevant sections of the Code or the regulations, rules, rulings,
notices or other official pronouncements issued or promulgated thereunder, the
Borrower does not within 30 days after a request from the Administrative Agent
or the Required Lenders deliver evidence, in form and substance reasonably
satisfactory to the Administrative Agent, with respect to any Foreign Subsidiary
of the Borrower which has not already had all of its stock pledged pursuant to
the Pledge Agreement that
(a) a pledge of 65% or more of the total combined voting power
of all classes of capital stock of such Foreign Subsidiary entitled to
vote,
(b) the entering into by such Foreign Subsidiary of a security
agreement in substantially the form of the Security Agreement, and
(c) the entering into by such Foreign Subsidiary of a guaranty
in substantially the form of the Subsidiaries' Guaranty,
in any such case could reasonably be expected to cause (I) any undistributed
earnings of such Foreign Subsidiary as determined for Federal income tax
purposes to be treated as a deemed dividend to such Foreign Subsidiary's United
States parent for Federal income tax purposes or (II) other Federal income tax
consequences to the Credit Parties having a Material Adverse Effect, then in the
case of a failure to deliver the evidence described in clause (i) above, that
portion of such Foreign Subsidiary's outstanding capital stock not theretofore
pledged pursuant to the Pledge Agreement shall be promptly pledged to the
Collateral Agent for the benefit of the Secured Creditors pursuant to the Pledge
Agreement (or another pledge agreement in substantially similar form, if
needed), and in the case of a failure to deliver the evidence described in
clause (ii) above, such Foreign Subsidiary shall promptly execute and deliver
the Security Agreement and Pledge Agreement (or another security agreement or
pledge agreement in substantially similar form, if needed), granting the Secured
Creditors a security interest in all of such Foreign Subsidiary's assets and
securing the Obligations of the Borrower under the Credit Documents and under
any Interest Rate Protection Agreement or Other Hedging Agreement and, in the
event the Subsidiaries' Guaranty shall have been executed by such Foreign
Subsidiary, the obligations of such Foreign Subsidiary thereunder, and in the
case of a failure to deliver the evidence described in clause (iii) above, such
Foreign Subsidiary shall promptly execute and deliver the Subsidiaries' Guaranty
(or another guaranty in substantially similar form, if needed), guaranteeing the
Obligations of the Borrower under the Credit Documents and under any Interest
Rate Protection Agreement or Other Hedging Agreement, in each case to the extent
that the entering into of the Security Agreement, Pledge Agreement or
Subsidiaries' Guaranty is permitted by the laws of the respective foreign
jurisdiction and with all documents delivered pursuant to this Section 9.13 to
be in form and substance reasonably satisfactory to the Administrative Agent.
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Section 9.14 Margin Stock. If any Credit Party any Margin
Stock that is required to be pledged pursuant to the Pledge Agreement, the
Borrower will duly execute and deliver to each Lender an appropriately completed
Form U-1 or Form G-3 referred to in Regulation U.
Section 9.15 Permitted Acquisitions.
(a) CONDITIONS FOR ACQUISITIONS. Subject to the provisions of
this Section 9.15 and the requirements contained in the definition of
"Permitted Acquisition", the Borrower and its Wholly-Owned Subsidiaries
may from time to time effect Permitted Acquisitions, so long as (in
each case except to the extent the Required Lenders otherwise
specifically agree in writing in the case of a specific Permitted
Acquisition):
(i) no Default or Event of Default shall have
occurred and be continuing at the time of the consummation of
the proposed Permitted Acquisition or immediately after giving
effect thereto;
(ii) all representations and warranties contained
herein and in the other Credit Documents shall be true and
correct in all material respects with the same effect as
though such representations and warranties had been made on
and as of the date of such Permitted Acquisition (both before
and after giving effect thereto), unless stated to relate to a
specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects
as of such earlier date;
(iii) the Net Acquisition Consideration with respect
to any one Permitted Acquisition shall not be greater than
$20,000,000;
(iv) the Net Acquisition Consideration with respect
to all Permitted Acquisitions consummated during any given
fiscal year of the Borrower shall not exceed the "Total
Acquisition Amount," which shall be determined according to
the following:
(A) from and after January 1, 2004, until
modified as provided for in (B) or (C) below, the
Total Acquisition Amount shall be $35,000,000;
(B) from and after January 1, 2005, the
Total Acquisition Amount shall be $20,000,000 plus
the product (only to the extent the product is a
positive number) of 50% of the sum of Consolidated
EBITDA for the period January 1, 2004 to December 31,
2004, less the Consolidated EBITDA for the period of
January 1, 2003 to December 31, 2003, provided that
the Total Acquisition Amount shall not be more than a
total of $25,000,000 pursuant to this clause (B); and
(C) from and after January 1, 2006, the
Total Acquisition Amount shall be the Total
Acquisition Amount as determined by clause (B) above
plus the product (only to the extent the product is a
positive
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number) of 50% of the sum of the Consolidated EBITDA
for the period January 1, 2005 to December 31, 2005,
less the Consolidated EBITDA for the period of
January 1, 2004 to December 31, 2004, provided that
the Total Acquisition Amount shall not be increased
to more than a total of $30,000,000 pursuant to this
clause (C).
(v) the Acquired EBITDA of each Acquired Entity or
Business, calculated prior to a Permitted Acquisition shall
not be less than a negative $2,500,000 for the twelve month
period prior to the Permitted Acquisition, and in any fiscal
year of the Borrower the total Acquired EBITDA for all
Acquired Entities and Businesses shall not be less than a
negative $5,000,000 on an aggregate basis.
(vi) immediately after giving effect to each
Permitted Acquisition (and all payments to be made in
connection therewith), the Total Unutilized Revolving Loan
Commitment, when added to the aggregate amount of unrestricted
cash and Cash Equivalents held by the Borrower and its
Wholly-Owned Domestic Subsidiaries, shall equal or exceed
$7,000,000;
(vii) no Acquired Entity or Business acquired
pursuant to a Permitted Acquisition shall be organized or
domiciled under the law of any jurisdiction other than the
United States or Canada, or any states or provinces therein,
and no Acquired Entity or Business shall have more than 15% of
its assets or annual revenues based in or from outside of the
United States or Canada (as determined from the most recently
available financial information for such Person or assets);
(viii) such Permitted Acquisition is non-hostile
(i.e., the prior, effective written consent or approval to
such Permitted Acquisition of the board of directors or
equivalent governing body of the Acquired Entity or Business
shall have been obtained);
(ix) at least 10 Business Days prior to any Permitted
Acquisition, the Borrower shall have (x) given the
Administrative Agent and the Lenders at least 10 Business Days
prior written notice of any Permitted Acquisition, and (y)
delivered to the Administrative Agent and each Lender an
officer's certificate executed by a senior financial officer
of the Borrower, certifying to the best of such officer's
knowledge, compliance with the requirements of preceding
clauses (i) through (viii), inclusive, and containing the
calculations (in reasonable detail) (A) evidencing compliance
with the preceding clauses (iii), (iv), (v), (vi), (vii), and
(viii) and (B) necessary to establish the Acquired EBITDA of
the Acquired Entity or Business acquired pursuant to such
Permitted Acquisition, which calculations shall be reasonably
approved by the Administrative Agent.
(b) PLEDGE OF STOCK. At the time of each Permitted Acquisition
involving the creation or acquisition of a Subsidiary, or the
acquisition of capital stock or other equity interest of any Person,
all capital stock or other equity interests thereof created
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or acquired in connection with such Permitted Acquisition shall be
pledged for the benefit of the Secured Creditors pursuant to (and to
the extent required by) the Pledge Agreement.
(c) The Borrower will cause each Subsidiary which is formed to
effect, or is acquired pursuant to, a Permitted Acquisition to comply
with, and to execute and deliver, all of the documentation as and to
the extent required by, Sections 9.11 and 10.14, to the satisfaction of
the Administrative Agent.
(d) The consummation of each Permitted Acquisition shall be
deemed to be a representation and warranty by the Borrower that the
certifications by the Borrower pursuant to Section 9.15(a) are true and
correct and that all conditions thereto have been satisfied and that
same is permitted in accordance with the terms of this Agreement, which
representation and warranty shall be deemed to be a representation and
warranty for all purposes hereunder, including, without limitation,
Articles VIII and XI.
(e) In any Permitted Acquisition that involves a working
capital adjustment, Net Acquisition Consideration for the purposes of
clauses (a)(iii) and (iv) above shall be initially calculated on the
basis of a reasonably estimated working capital adjustment. Within 75
days after each such Permitted Acquisition, the Borrower (i) shall
establish the actual amount of working capital adjustment and the
actual Net Acquisition Consideration, and (ii) shall deliver to the
Administrative Agent and each Lender an officer's certificate executed
by a senior financial officer of the Borrower, certifying to the best
of such officer's knowledge, compliance with the requirements of
preceding clauses (a)(iii) and (iv) based on such recalculated Net
Acquisition Consideration, and containing the calculations (in
reasonable detail) evidencing compliance with the preceding clauses
(a)(iii) and (iv).
ARTICLE X
NEGATIVE COVENANTS.
The Borrower hereby covenants and agrees that on and after the
Closing Date and until the Total Commitment and all Letters of Credit have
terminated and the Loans, Notes and Unpaid Drawings (in each case, together with
interest thereon), Fees and all other Obligations (other than any indemnities
described in Section 13.12 which are not then due and payable) incurred
hereunder and thereunder, are paid in full:
Section 10.1 Liens. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon or with respect to any property or assets (real or personal, tangible or
intangible) of the Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable with recourse to the Borrower
or any of its Subsidiaries), or assign any right to receive income or permit the
filing of any
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financing statement under the UCC or any other similar notice of Lien under any
similar recording or notice statute; provided that the provisions of this
Section 10.1 shall not prevent the creation, incurrence, assumption or existence
of the following (Liens described below are herein referred to as "Permitted
Liens"):
(a) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been
established in accordance with GAAP;
(b) Liens in respect of property or assets of the Borrower or
any of its Subsidiaries imposed by law, which were incurred in the
ordinary course of business and do not secure Indebtedness for borrowed
money, such as carriers', warehousemen's, materialmen's and mechanics'
liens and other similar Liens arising in the ordinary course of
business, and (x) which do not in the aggregate materially detract from
the value of the Borrower's or such Subsidiary's property or assets or
materially impair the use thereof in the operation of the business of
the Borrower or such Subsidiary or (y) which are being contested in
good faith by appropriate proceedings, which proceedings have the
effect of preventing the forfeiture or sale of the property or assets
subject to any such Lien;
(c) Liens in existence on the Closing Date which are listed,
and the property subject thereto described, in Schedule 6 of the
Disclosure Letter, but only to the respective date, if any, set forth
in such Schedule 6 for the removal, replacement and termination of any
such Liens, plus renewals, replacements and extensions of such Liens to
the extent set forth on such Schedule 6, provided that (x) the
aggregate principal amount of the Indebtedness, if any, secured by such
Liens does not increase from that amount outstanding at the time of any
such renewal, replacement or extension and (y) any such renewal,
replacement or extension does not encumber any additional assets or
properties of the Borrower or any of its Subsidiaries;
(d) Liens created pursuant to the Security Documents;
(e) leases or subleases granted to other Persons not
materially interfering with the conduct of the business of the Borrower
or any of its Subsidiaries;
(f) Liens upon assets of the Borrower or any of its
Subsidiaries subject to Capitalized Lease Obligations to the extent
such Capitalized Lease Obligations are permitted by Section 10.4(d),
provided that (x) such Liens only serve to secure the payment of
Indebtedness arising under such Capitalized Lease Obligation and (y)
the Lien encumbering the asset giving rise to the Capitalized Lease
Obligation does not encumber any other asset of the Borrower or any
Subsidiary of the Borrower;
(g) Liens placed upon (x) equipment or machinery acquired
after the Closing Date and used in the ordinary course of business of
the Borrower or any of its Subsidiaries at the time of the acquisition
thereof by the Borrower or any such
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Subsidiary or within 90 days thereafter to secure Indebtedness incurred
to pay all or a portion of the purchase price thereof or to secure
Indebtedness incurred solely for the purpose of financing the
acquisition of any such equipment or machinery or extensions, renewals
or replacements of any of the foregoing for the same or a lesser amount
or (y) Real Property acquired or constructed after the Closing Date and
used in the ordinary course of business of the Borrower or any of its
Subsidiaries at the time of the acquisition or construction thereof by
the Borrower or any of its Subsidiaries or within 180 days thereafter
to secure Indebtedness incurred to pay all or a portion of the purchase
price or construction cost thereof or to secure Indebtedness incurred
solely for the purpose of financing the acquisition or construction of
any such Real Property or extensions, renewals or replacements of any
of the foregoing for the same or a lesser amount, provided that (i) the
Indebtedness secured by all such Liens described in this clause (vii)
is permitted by Section 10.4(d) and (y) in all events, the Lien
encumbering the asset so acquired or constructed does not encumber any
other asset of the Borrower or such Subsidiary;
(h) easements, rights-of-way, restrictions, encroachments and
other similar charges or encumbrances, and minor title deficiencies, in
each case not securing Indebtedness and not materially interfering with
the conduct of the business of the Borrower or any of its Subsidiaries;
(i) Liens arising from precautionary UCC financing statement
filings regarding Operating Leases;
(j) Liens arising out of the existence of judgments or awards
in respect of which the Borrower or any of its Subsidiaries shall in
good faith be prosecuting an appeal or proceedings for review and in
respect of which there shall have been secured a subsisting stay of
execution pending such appeal or proceedings, provided that the
aggregate amount of all cash and the fair market value of all other
property subject to such Liens does not exceed $5,000,000 at any time
outstanding;
(k) statutory and common law landlords' liens under leases to
which the Borrower or any of its Subsidiaries is a party;
(l) Liens (other than Liens imposed under ERISA) incurred in
the ordinary course of business in connection with workers compensation
claims, unemployment insurance and social security benefits;
(m) Liens securing the performance of bids, tenders, leases
and contracts in the ordinary course of business, statutory
obligations, surety bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business and consistent
with past practice (exclusive of obligations in respect of the payment
for borrowed money), provided that the aggregate amount of all cash and
the fair market value of all other property subject to all Liens
permitted by this clause (xiii) shall not at any time exceed
$1,500,000;
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(n) Liens on property or assets acquired pursuant to a
Permitted Acquisition, or on property or assets of a Subsidiary of the
Borrower in existence at the time such Subsidiary is acquired pursuant
to a Permitted Acquisition, provided that (x) any Indebtedness that is
secured by such Liens is permitted to exist under Section 10.4(h), and
(y) such Liens are not incurred in connection with, or in contemplation
or anticipation of, such Permitted Acquisition and do not attach to any
other asset of the Borrower or any of its Subsidiaries;
(o) 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;
(p) Liens which constitute rights of set-off of a customary
nature or bankers' Liens with respect to amounts on deposit, whether
arising by operation of law or by contract, in connection with
arrangements entered into with banks in the ordinary course of
business;
(q) Liens on insurance proceeds securing the payment of
financed insurance premiums;
(r) Liens securing Interest Rate Protection Agreements and
Other Hedging Agreements; and
(s) Permitted Encumbrances.
In connection with the granting of Liens of the type described in clauses (vi)
and (vii) of this Section 10.1 by the Borrower or any of its Subsidiaries, the
Administrative Agent and the Collateral Agent shall be authorized to take any
actions deemed appropriate by it in connection therewith (including, without
limitation, by executing appropriate lien releases or lien subordination
agreements in favor of the holder or holders of such Liens, in either case
solely with respect to the item or items of equipment or other assets subject to
such Liens).
Section 10.2 Consolidation, Merger, Purchase or Sale of
Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries
to, wind up, liquidate or dissolve its affairs or enter into any transaction of
merger or consolidation, or convey, sell, lease or otherwise dispose of all or
any part of its property or assets, or enter into any sale-leaseback
transactions, or purchase or otherwise acquire (in one or a series of related
transactions) any part of the property or assets (other than purchases or other
acquisitions of inventory, materials and equipment in the ordinary course of
business) of any Person (or agree to do any of the foregoing at any future time
(unless such agreement relates to an action otherwise permitted by this Section
10.2, or to the extent that the respective action is not otherwise permitted by
this Section 10.2 (and the Loans will not be repaid in full, and all Commitments
terminated, at the time of the consummation of the respective action), such
agreement expressly provides that the consent of the requisite percentage of
Lenders hereunder is required to be obtained in connection therewith)), except
that:
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(a) Capital Expenditures by the Companies shall be permitted
to the extent not in violation of Section 10.7;
(b) each of the Companies may make sales of inventory and
license intellectual property in the ordinary course of business;
(c) each of the Companies may sell obsolete, uneconomic or
worn-out equipment or materials in the ordinary course of business;
(d) Permitted Acquisitions may be made to the extent permitted
by Section 9.15;
(e) each of the Companies may sell other assets (other than
the capital stock of any Subsidiary Guarantor), so long as (v) no
Default or Event of Default then exists or would result therefrom, (w)
each such sale is in an arm's-length transaction and the Borrower or
the respective Subsidiary receives at least fair market value (as
determined in good faith by the Borrower or such Subsidiary, as the
case may be), (x) the total consideration received by the Borrower or
such Subsidiary is at least 75% cash and is paid at the time of the
closing of such sale, (y) the Net Sale Proceeds therefrom are applied
and/or reinvested as (and to the extent) required by Section 5.2(e) and
(z) the aggregate amount of the proceeds received from all assets sold
pursuant to this clause (v) shall not exceed $5,000,000 in any fiscal
year of the Borrower;
(f) Investments may be made to the extent permitted by Section
10.5;
(g) each of the Companies may lease (as lessee) real or
personal property (so long as any such lease does not create a
Capitalized Lease Obligation except to the extent permitted by Section
10.4(d));
(h) each of the Companies may sell or discount, in each case
without recourse and in the ordinary course of business, accounts
receivable arising in the ordinary course of business, but only in
connection with the compromise or collection thereof and not as part of
any financing transaction;
(i) each of the Companies may grant leases or subleases to
other Persons not materially interfering with the conduct of the
business of the Borrower or any of its Subsidiaries;
(j) any Subsidiary of the Borrower (i) may be merged or
consolidated with or into the Borrower or liquidated so long as the
Borrower is the surviving corporation of such merger or consolidation
or receives the assets of such Subsidiary upon such liquidation and
(ii) may transfer its assets to the Borrower or to any Subsidiary
Guarantor; and
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(k) any Subsidiary of the Borrower may be merged or
consolidated with or into any other Subsidiary of the Borrower or
liquidated so long as (i) in the case of any (x) such merger or
consolidation involving a Subsidiary Guarantor, a Subsidiary Guarantor
is the surviving corporation of such merger or consolidation or (y)
such liquidation involving a Subsidiary Guarantor, a Subsidiary
Guarantor receives the assets of such Subsidiary upon such liquidation
and (ii) in the case of any (x) such merger or consolidation involving
a Wholly-Owned Subsidiary of the Borrower, in addition to the
requirements of preceding clause (i)(x), a Wholly-Owned Subsidiary is
the surviving corporation of such merger or consolidation or (y) such
liquidation, in addition to the requirements of preceding clause
(i)(y), a Wholly-Owned Subsidiary receives the assets of such
Subsidiary upon such liquidation.
To the extent the Required Lenders waive the provisions of this Section 10.2
with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 10.2 (other than to the Borrower or a Subsidiary
thereof), such Collateral shall be sold free and clear of the Liens created by
the Security Documents, and the Administrative Agent and the Collateral Agent
shall be authorized to take any actions deemed appropriate in order to effect
the foregoing.
Section 10.3 Dividends. The Borrower will not, and will not
permit any of its Subsidiaries to, authorize, declare or pay any Dividends with
respect to the Borrower or any of its Subsidiaries, except that:
(a) any Subsidiary of the Borrower may pay cash Dividends to
the Borrower or to any Wholly-Owned Subsidiary of the Borrower;
(b) any non-Wholly-Owned Subsidiary of the Borrower may pay
cash Dividends to its shareholders generally so long as the Borrower or
its respective Subsidiary which owns the equity interest in the
Subsidiary paying such Dividends receives at least its proportionate
share thereof (based upon its relative holding of the equity interest
in the Subsidiary paying such Dividends and taking into account the
relative preferences, if any, of the various classes of equity
interests of such Subsidiary);
(c) with prior written consent of the Required Lenders and so
long as there shall exist no Default or Event of Default (both before
and after giving effect to the payment thereof), the Borrower may
repurchase outstanding shares of its common stock (or options to
purchase such common stock) following the death, disability or
termination of employment of officers, directors or employees of the
Borrower or any of its Subsidiaries, provided that the aggregate amount
of Dividends paid by the Borrower pursuant to this clause (iii) shall
not exceed $500,000 in any fiscal year of the Borrower;
(d) the Borrower may pay regularly scheduled Dividends on its
Qualified Preferred Stock pursuant to the terms thereof solely through
the issuance of additional shares of such Qualified Preferred Stock
rather than in cash;
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(e) with the prior written consent of the Required Lenders,
the Borrower may redeem its outstanding preferred stock purchase rights
issued under the Borrower's stockholder's rights plan in an aggregate
amount not to exceed $500,000;
(f) the Borrower may pay cash Dividends in relation to its
common stock on a pro rata basis, provided that before and after giving
effect to the payment thereof, (a) no Default or Event of Default shall
exist, and (b) the aggregate amount of all cash Dividends under this
Section 10.3(f) shall not exceed (i) $10,000,000 during the first loan
year, (ii) $15,000,000 during the second loan year and (iii)
$20,000,000 during any loan year after the second loan year, with each
loan year being a period of one year ending on the day before the
anniversary of the date hereof.
Section 10.4 Indebtedness. The Borrower will not, and will not
permit any of its Subsidiaries to, contract, create, incur, assume or suffer to
exist any Indebtedness, except the following (collectively, "Permitted
Indebtedness"):
(a) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
(b) Existing Indebtedness outstanding on the Closing Date and
listed on Schedule 4 of the Disclosure Letter, without giving effect to
any subsequent extension, renewal or refinancing thereof except to the
extent set forth on such Schedule 4, provided that the aggregate
principal amount of the Indebtedness to be extended, renewed or
refinanced does not increase from that amount outstanding at the time
of any such extension, renewal or refinancing;
(c) Indebtedness under Interest Rate Protection Agreements in
notional amounts not to exceed the outstanding Loans pursuant to this
Agreement, such Interest Rate Protection Agreements to be reasonably
acceptable to the Administrative Agent and entered into with respect to
other Indebtedness permitted under this Section 10.4;
(d) Indebtedness of the Companies evidenced by Capitalized
Lease Obligations (to the extent permitted pursuant to Section 10.7 and
10.8) and purchase money Indebtedness described in Section 10.1(g),
provided that in no event shall the sum of the aggregate principal
amount of all Capitalized Lease Obligations and purchase money
Indebtedness permitted by this clause (iv) exceed $10,000,000 at any
time outstanding;
(e) intercompany Indebtedness among the Companies to the
extent permitted by Sections 10.5(k), (m), (n), (o) and (p);
(f) Indebtedness consisting of guaranties by the Companies of
Indebtedness of the Companies otherwise permitted to be incurred under
this Section 10.4;
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(g) Indebtedness under Other Hedging Agreements providing
protection against fluctuations in currency values in connection with
the Borrower's or any of its Subsidiaries' operations so long as
management of the Borrower or such Subsidiary, as the case may be, has
determined that the entering into of such Other Hedging Agreements are
bona fide hedging activities and are not for speculative purposes;
(h) the Indenture Indebtedness and Indebtedness of a
Subsidiary acquired pursuant to a Permitted Acquisition (or
Indebtedness assumed at the time of a Permitted Acquisition of an asset
securing such Indebtedness), provided that (x) such Indebtedness was
not incurred in connection with, or in anticipation or contemplation
of, such Permitted Acquisition, (y) such Indebtedness does not
constitute debt for borrowed money (other than debt for borrowed money
incurred in connection with industrial revenue or industrial
development bond financings), it being understood and agreed that
Capitalized Lease Obligations and purchase money Indebtedness of the
type described in Section 10.1(g) shall not constitute debt for
borrowed money for purposes of this clause (y), and (z) at the time of
such Permitted Acquisition, the aggregate of all Indebtedness permitted
under this clause (ix) does not exceed the greater of $5,000,000 or 15%
of the total value of the assets of all Subsidiaries (or assets) so
acquired since the Closing Date hereof;
(i) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business, so long as such
Indebtedness not otherwise constituting Indebtedness permitted under
this Section 10.4 is extinguished within two Business Days of the
incurrence thereof;
(j) Indebtedness in respect of bid, performance, advance
payment or surety bonds entered into in the ordinary course of business
and consistent with past practices in an aggregate amount not to exceed
$1,500,000 at any time outstanding; and
(k) so long as no Default or Event of Default then exists
or would result therefrom, additional unsecured Indebtedness incurred
by the Companies in an aggregate principal amount not to exceed
$10,000,000 at any one time outstanding.
Section 10.5 Advances, Investments and Loans. The Borrower
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, lend money or credit or make advances to any Person, or purchase or
acquire any stock, obligations or securities of, or any other interest in, or
make any capital contribution to, any other Person, or purchase or own a futures
contract or otherwise become liable for the purchase or sale of currency or
other commodities at a future date in the nature of a futures contract, or hold
any cash or Cash Equivalents (each of the foregoing an "Investment" and,
collectively, "Investments"), except that the following shall be permitted:
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(a) the Companies may acquire and hold accounts
receivables owing to any of them, if created or acquired in the
ordinary course of business and payable or dischargeable in accordance
with customary trade terms of the Borrower or such Subsidiary;
(b) the Companies may acquire and hold cash and Cash
Equivalents;
(c) the Companies may hold the Investments held by them
on the Closing Date and described on Schedule 7 of the Disclosure
Letter, provided that any additional Investments made with respect
thereto shall be permitted only if independently justified under the
other provisions of this Section 10.5;
(d) the Companies may acquire and own investments
(including debt obligations) received in connection with the bankruptcy
or reorganization of suppliers and customers and in good faith
settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;
(e) the Companies may make loans and advances in the
ordinary course of business to their respective employees so long as
the aggregate principal amount thereof at any time outstanding
(determined without regard to any write-downs or write-offs of such
loans and advances) shall not exceed $500,000;
(f) to the extent permitted by law, the Borrower may
acquire and hold obligations of one or more officers or other employees
of the Borrower or any of its Subsidiaries in connection with such
officers' or employees' acquisition of shares of common stock of the
Borrower provided, however, that (a) no cash is paid by the Borrower or
any of its Subsidiaries to such officers or employees in connection
with the acquisition of any such obligations, and (b) the aggregate of
all such obligations shall not exceed $3,000,000 at any one time
outstanding.
(g) the Companies may enter into Interest Rate Protection
Agreements to the extent permitted by Section 10.4(c);
(h) the Companies may enter into Other Hedging Agreement
to the extent permitted by Section 10.4(g);
(i) Permitted Acquisitions shall be permitted in
accordance with Section 9.15;
(j) the Companies may acquire and hold promissory notes
and other non-cash consideration issued by the purchaser of assets in
connection with a sale of such assets to the extent permitted by
Sections 10.2(d) and (e);
(k) the Borrower and the Subsidiary Guarantors may make
Intercompany Loans between or among one another, so long as each
Intercompany Loan shall be
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evidenced by an Intercompany Note that is pledged to the Collateral
Agent pursuant to the Pledge Agreement;
(l) the Borrower may make equity contributions to the
capital of the Subsidiary Guarantors and the Subsidiary Guarantors may
make equity contributions to the capital of their respective
Subsidiaries which are Subsidiary Guarantors, provided that the
Borrower may not contribute a material portion of its non-cash assets
to the Subsidiary Guarantors;
(m) the Credit Parties may make Intercompany Loans and/or
cash equity contributions to Wholly-Owned Foreign Subsidiaries for the
purpose of enabling such Wholly-Owned Foreign Subsidiaries to
consummate a Permitted Acquisition or to make Capital Expenditures so
long as (i) each such Investment that is made as an Intercompany Loan
shall be evidenced by an Intercompany Note that is pledged to the
Collateral Agent pursuant to the Pledge Agreement, (ii) no more than
$1,000,000 of such Investments in the aggregate may be made in any
fiscal year of the Borrower for Permitted Acquisitions and (iii) no
more than $1,000,000 of such Investments in the aggregate may be made
in any fiscal year of the Borrower for Capital Expenditures;
(n) the Borrower and its Wholly-Owned Subsidiaries may
make additional Intercompany Loans and/or cash equity contributions to
their respective Wholly-Owned Foreign Subsidiaries for the purpose of
enabling such Subsidiaries to make an Investment permitted by Section
10.5(p) so long as (i) each such Investment that is made as an
Intercompany Loan shall be evidenced by an Intercompany Note that is
pledged to the Collateral Agent pursuant to the Pledge Agreement and
(ii) no more than $1,000,000 of such Investments in the aggregate may
be made;
(o) Wholly-Owned Foreign Subsidiaries may make
intercompany loans (i) between or among one another and (ii) to any
Credit Party so long as each such Intercompany Loan made to Credit
Party shall contain (and shall be subject to) the subordination
provisions described in Exhibit K; and
(p) so long as no Default or Event of Default then exists or
would result therefrom, the Borrower and its Subsidiaries may make
additional Investments so long as the aggregate amount of all such
Investments made in any fiscal year pursuant to this subsection (p)
does not exceed $3,000,000.
Section 10.6 Transactions with Affiliates. The Borrower will
not, and will not permit any of its Subsidiaries to, enter into any transaction
or series of related transactions, whether or not in the ordinary course of
business, with any Affiliate of the Borrower or any of its Subsidiaries, other
than in the ordinary course of business and on terms and conditions
substantially as favorable to the Borrower or such Subsidiary as would
reasonably be obtained by the Borrower or such Subsidiary at that time in a
comparable arm's-length transaction with a Person other than an Affiliate,
except that the following in any event shall be permitted:
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(a) Dividends may be paid to the extent provided in
Section 10.3;
(b) loans may be made and other transactions may be
entered into by the Companies to the extent permitted by Sections 10.2,
10.4 and 10.5;
(c) customary fees may be paid to non-officer directors
of the Borrower and its Subsidiaries;
(d) the Companies may enter into, and may make payments
under, employment agreements, employee benefits plans, stock option
plans, indemnification provisions and other similar compensatory
arrangements with officers, employees and directors of the Companies in
the ordinary course of business;
(e) transactions exclusively between or among the
Borrower and any of its Wholly-Owned Subsidiaries or exclusively
between or among such Wholly-Owned Subsidiaries, provided that such
transactions are not otherwise prohibited by the Credit Documents;
(f) any agreement as in effect as of the Closing Date or
any amendment thereto or any transaction contemplated thereby
(including pursuant to any amendment thereto) in any replacement
agreement thereto so long as any such amendment or replacement
agreement is not more disadvantageous to the Lenders in any material
respect than the original agreement as in effect on the Closing Date;
and
(g) transactions with Annapurna Corporation aggregating
not more than $500,000 in any fiscal year of the Borrower.
Section 10.7 Consolidated Fixed Charge Coverage Ratio. The
Borrower will not permit the Consolidated Fixed Charge Coverage Ratio for any
Test Period to be less than 1.15 to 1.
Section 10.8 Consolidated Total Leverage Ratio. During each
period described below, the Borrower will not permit the Consolidated Total
Leverage Ratio at any time to be greater than the ratio set forth opposite such
period:
Period Consolidated Total
Leverage Ratio
Closing Date through March 31, 2007 2.50 to 1
April 1, 2007 through March 31, 2008 2.25 to 1
April 1, 2008 and thereafter 2.00 to 1
Section 10.9 Consolidated Net Worth. The Borrower will not
permit the Consolidated Net Worth as of the end of any fiscal quarter of the
Borrower to be less than the sum of (a) 80% of Consolidated Net Worth as of
December 31, 2003, (b) an amount equal to
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50% of the Consolidated Net Income (with no deduction for any net loss in any
such fiscal quarter) earned in each fiscal quarter ending after December 31,
2003, plus (c) an amount equal to 100% of the aggregate increases in
shareholders' equity of the Companies after the Closing Date by reason of the
issuance and sale of capital stock of the Borrower for cash consideration
(including upon any conversion of debt securities of the Borrower into such
capital stock).
Section 10.10 Modifications of Certificate of Incorporation,
By-Laws and Certain Other Agreements, etc. The Borrower will not, and will not
permit any of its Subsidiaries to amend, modify or change its certificate or
articles of incorporation (including, without limitation, by the filing or
modification of any certificate or articles of designation) or by-laws (or the
equivalent organizational documents) or any agreement entered into by it with
respect to its capital stock (including any Shareholders' Agreement), or enter
into any new agreement with respect to its capital stock, unless such amendment,
modification, change or other action could not reasonably be expected to be
adverse to the interests of the Lenders in any material respect.
Section 10.11 Limitation on Certain Restrictions on
Subsidiaries. The Borrower will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any such
Subsidiary to (a) pay dividends or make any other distributions on its capital
stock or any other interest or participation in its profits owned by the
Borrower or any Subsidiary of the Borrower, or pay any Indebtedness owed to the
Borrower or any Subsidiary of the Borrower, (b) make loans or advances to the
Borrower or any Subsidiary of the Borrower or (c) transfer any of its properties
or assets to the Borrower or any Subsidiary of the Borrower, except for such
encumbrances or restrictions existing under or by reason of (i) applicable law,
(ii) this Agreement and the other Credit Documents, (iii) the Indenture and
related documents, (iv) customary provisions restricting subletting or
assignment of any lease governing a leasehold interest of the Borrower or any
Subsidiary of the Borrower, (v) customary provisions restricting assignment of
any licensing agreement (in which the Borrower or such Subsidiary is the
licensee) or other contract entered into by the Borrower or any Subsidiary of
the Borrower in the ordinary course of business, (vi) any instrument governing
Indebtedness described in Section 10.4(h), which restriction is not applicable
to any Person, or the property or assets of any Person, other than the Person or
the properties or assets acquired pursuant to any such Permitted Acquisition,
(vii) agreements existing on the Closing Date to the extent and in the manner
such agreements are in effect on the Closing Date, (viii) any agreement for the
sale or disposition of capital stock or assets of any Subsidiary, provided that
such encumbrances and restrictions are only applicable to such Subsidiary or
assets, as applicable, and any such sale or disposition is made in compliance
with Section 10.2, and (ix) restrictions on the transfer of any asset subject to
a Lien permitted by Section 10.1(e), (f) or (g).
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Section 10.12 Limitation on Issuance of Capital Stock.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to, issue (i) any preferred stock other than Qualified
Preferred Stock of the Borrower or (ii) any redeemable common stock
other than common stock that is redeemable at the sole option of the
Borrower or such Subsidiary, as the case may be.
(b) The Borrower will not permit any of its Subsidiaries
to issue any capital stock (including by way of sales of treasury
stock) or any options or warrants to purchase, or securities
convertible into, capital stock, except (i) for transfers and
replacements of then outstanding shares of capital stock, (ii) for
stock splits, stock dividends and issuances which do not decrease the
percentage ownership of the Borrower or any of its Subsidiaries in any
class of the capital stock of such Subsidiary, (iii) to qualify
directors to the extent required by applicable law, (iv) for issuances
to the Borrower or a Wholly-Owned Subsidiary thereof or (v) for
issuances by newly created or acquired Subsidiaries in accordance with
the terms of this Agreement.
Section 10.13 Business. The Borrower will not, and will not
permit any of its Subsidiaries to, engage in any business other than the
business engaged in by the Companies as of the Closing Date and reasonable
extensions thereof and other businesses that are complementary or reasonably
related thereto. Notwithstanding anything to the contrary contained in this
Agreement, the Borrower will not permit any Inactive Subsidiary to engage in any
business activities, to have any material liabilities or to own assets with an
aggregate value in excess of $250,000.
Section 10.14 Limitation on Creation of Subsidiaries. The
Borrower will not, and will not permit any of its Subsidiaries to, establish,
create or acquire after the Closing Date any Subsidiary, provided that the
Borrower and its Wholly-Owned Subsidiaries shall be permitted to establish,
create or, to the extent permitted by this Agreement, acquire Wholly-Owned
Subsidiaries and, to the extent permitted by Section 10.5(p) and the definition
of "Permitted Acquisition", non-Wholly-Owned Subsidiaries, so long as
(a) the equity interests of each such new Subsidiary (to
the extent owned by a Credit Party) is pledged pursuant to, and to the
extent required by, the Pledge Agreement,
(b) each such new Domestic Subsidiary (and, to the extent
required by Section 9.13, each such new Foreign Subsidiary) executes a
counterpart of the Subsidiaries' Guaranty, the Pledge Agreement and the
Security Agreement, and
(c) each such new Domestic Subsidiary (and, to the extent
required by Section 9.13, each such new Foreign Subsidiary), to the
extent requested by the Administrative Agent or the Required Lenders,
takes all actions required pursuant to Section 9.11.
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In addition, each such new Domestic Subsidiary (and, to the extent required by
Section 9.13, each such new Foreign Subsidiary) shall execute and deliver, or
cause to be executed and delivered, all other relevant documentation of the type
described in Article VI as such new Subsidiary would have had to deliver if such
new Subsidiary were a Credit Party on the Closing Date.
Section 10.15 Operating Leases. The Borrower will not permit
the aggregate obligations of the Companies with respect to Operating Leases to
exceed $9,000,000 in any fiscal year.
ARTICLE XI
EVENTS OF DEFAULT
Section 11.1 Events of Default. The occurrence of any of the
following specified events shall constitute an Event of Default (each an "Event
of Default"):
(a) PAYMENTS. The Borrower shall (i) default in the
payment when due of any principal of any Loan or any Note or (ii)
default, and such default shall continue unremedied for three or more
Business Days, in the payment when due of any interest on any Loan or
Note, any Unpaid Drawing or any Fees or any other amounts owing
hereunder or thereunder; or
(b) REPRESENTATIONS, ETC. Any representation, warranty or
statement made or deemed made by any Credit Party herein or in any
other Credit Document or in any certificate delivered to the
Administrative Agent or any Lender pursuant hereto or thereto shall
prove to be untrue in any material respect on the date as of which made
or deemed made; or
(c) COVENANTS. The Borrower or any of its Subsidiaries
shall (i) default in the due performance or observance by it of any
term, covenant or agreement contained in Section 8.8(b), 9.1(g)(i),
9.8, 9.12, 9.14, 9.15 or Article X or (ii) default in the due
performance or observance by it of any other term, covenant or
agreement contained in this Agreement or any other Credit Document
(other than those set forth in Sections 11.1(a) and (b)) and such
default shall continue unremedied for a period of 30 days after written
notice thereof to the defaulting party by the Administrative Agent or
the Required Lenders; or
(d) DEFAULT UNDER OTHER AGREEMENTS. (i) The Borrower or
any of its Subsidiaries shall (x) default in any payment of any
Indebtedness (other than the Obligations) beyond the period of grace,
if any, provided in the instrument or agreement under which such
Indebtedness was created or (y) default in the observance or
performance of any agreement or condition relating to any Indebtedness
(other than the Obligations) or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit
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the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause (determined without regard
to whether any notice is required), any such Indebtedness to become due
prior to its stated maturity, or (ii) any Indebtedness (other than the
Obligations) of the Borrower or any of its Subsidiaries shall be
declared to be (or shall become) due and payable, or required to be
prepaid other than by a regularly scheduled required prepayment, prior
to the stated maturity thereof, provided that it shall not be a Default
or an Event of Default under this Section 11.1(d) unless the aggregate
principal amount of all Indebtedness as described in either of the
preceding clauses (i) or (ii) is at least $5,000,000; or
(e) BANKRUPTCY, ETC. The Borrower or any of its
Subsidiaries shall commence a voluntary case concerning itself under
Title 11 of the United States Code entitled "Bankruptcy," as now or
hereafter in effect, or any successor thereto (the "Bankruptcy Code");
or an involuntary case is commenced against the Borrower or any of its
Subsidiaries, and the petition is not controverted within 10 days, or
is not dismissed within 60 days, after commencement of the case; or a
custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or substantially all of the property of the
Borrower or any of its Subsidiaries, or the Borrower or any of its
Subsidiaries commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether
now or hereafter in effect relating to the Borrower or any of its
Subsidiaries, or there is commenced against the Borrower or any of its
Subsidiaries any such proceeding which remains undismissed for a period
of 60 days, or the Borrower or any of its Subsidiaries is adjudicated
insolvent or bankrupt; or any order of relief or other order approving
any such case or proceeding is entered; or the Borrower or any of its
Subsidiaries suffers any appointment of any custodian or the like for
it or any substantial part of its property to continue undischarged or
unstayed for a period of 60 days; or the Borrower or any of its
Subsidiaries makes a general assignment for the benefit of creditors;
or any corporate action is taken by the Borrower or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or
(f) ERISA.
(i) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof
under Section 412 of the Code or Section 302 of ERISA or a
waiver of such standard or extension of any amortization
period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have
occurred, a contributing sponsor (as defined in Section
4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA
shall be subject to the advance reporting requirement of PBGC
Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) or an advance notice of a Reportable Event is
filed (or is required to be filed) with the PBGC under Section
4043 of ERISA, any Plan which is subject to Title IV of ERISA
shall have had or is likely to
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have a trustee appointed to administer such Plan, any Plan
which is subject to Title IV of ERISA is, shall have been or
is likely to be terminated or to be the subject of termination
proceedings under ERISA (other than a standard termination
under Section 4041(b) of ERISA), any Plan shall have an
Unfunded Current Liability, a contribution required to be made
with respect to a Plan or a Foreign Pension Plan has not been
timely made, the Borrower or any Subsidiary of the Borrower or
any ERISA Affiliate has incurred or is likely to incur any
liability to or on account of a Plan under Section 409,
502(i), 502(l) or 515 of ERISA, Title IV of ERISA (other than
for premiums due to the PBGC), or Section 401(a)(29), 4971 or
4975 of the Code, or a "default" within the meaning of Section
4219(c)(5) of ERISA shall occur with respect to any Plan, any
applicable law, rule or regulation is adopted, changed or
interpreted, or the interpretation or administration thereof
is changed, in each case after the date hereof, by any
governmental authority or agency or by any court (a "Change of
Law"), or, as a result of a Change in Law, an event occurs
following a Change in Law, with respect to or otherwise
affecting any Plan;
(ii) there shall result from any such event or
events the imposition of a lien, the granting of a security
interest, or a liability or a material risk of incurring a
liability; and
(iii) such lien, security interest or liability,
individually and/or in the aggregate, in the reasonable
opinion of the Required Lenders, has had, or could reasonably
be expected to have, a Material Adverse Effect; or
(g) SECURITY DOCUMENTS. At any time after the execution
and delivery thereof, any of the Security Documents shall cease to be
in full force and effect, or shall cease to give the Collateral Agent
for the benefit of the Secured Creditors the Liens, rights, powers and
privileges purported to be created thereby (including, without
limitation, a perfected security interest in, and Lien on, all of the
Collateral (other than an immaterial portion thereof), in favor of the
Collateral Agent, superior to and prior to the rights of all third
Persons (except as permitted by Section 10.1), and subject to no other
Liens (except as permitted by Section 10.1); or
(h) SUBSIDIARIES' GUARANTY. At any time after the
execution and delivery thereof, the Subsidiaries' Guaranty or any
provision thereof shall cease to be in full force or effect as to any
Subsidiary Guarantor, or any Subsidiary Guarantor or any Person acting
by or on behalf of such Subsidiary Guarantor shall deny or disaffirm
such Subsidiary Guarantor's obligations under the Subsidiaries'
Guaranty or any Subsidiary Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its
part to be performed or observed pursuant to the Subsidiaries'
Guaranty; or
(i) JUDGMENTS. One or more judgments or decrees shall be
entered against the Borrower or any Subsidiary of the Borrower
involving in the aggregate for the
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Companies a liability (not paid or fully covered by a reputable and
solvent insurance company) and such judgments and decrees either shall
be final and non-appealable or shall not be vacated, discharged or
stayed or bonded pending appeal for any period of 30 consecutive days,
and the aggregate amount of all such judgments equals or exceeds
$5,000,000;
(j) CHANGE OF CONTROL. A Change of Control shall occur;
or
(k) INDENTURE INDEBTEDNESS. The Indenture shall not have been
discharged under Section 8.06 of the Indenture before the 71st day
after the Closing Date.
Section 11.2 Remedies. While an Event of Default exists, the
Administrative Agent, upon the written request of the Required Lenders, shall by
written notice to the Borrower, take any or all of the following actions,
without prejudice to the rights of the Administrative Agent, any Lender or the
holder of any Note to enforce its claims against any Credit Party (provided
that, if an Event of Default specified in Section 11.1(e) shall occur with
respect to the Borrower, the result which would occur upon the giving of written
notice by the Administrative Agent as specified in clauses (i) and (ii) below
shall occur automatically without the giving of any such notice):
(a) declare the Total Commitment terminated, whereupon
all Commitments of each Lender shall forthwith terminate immediately
and any Commitment Fee shall forthwith become due and payable without
any other notice of any kind;
(b) declare the principal of and any accrued interest in
respect of all Loans and the Notes and all Obligations owing hereunder
and thereunder to be, whereupon the same shall become, forthwith due
and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each Credit Party;
(c) terminate any Letter of Credit which may be
terminated in accordance with its terms;
(d) direct the Borrower to pay (and the Borrower agrees
that upon receipt of such notice, or upon the occurrence of an Event of
Default specified in Section 11.1(e) with respect to the Borrower, it
will pay) to the Collateral Agent at the Payment Office such additional
amount of cash or Cash Equivalents, to be held as security by the
Collateral Agent, as is equal to the aggregate Stated Amount of all
Letters of Credit issued for the account of the Borrower and then
outstanding;
(e) enforce, as Collateral Agent, all of the Liens and
security interests created pursuant to the Security Documents; and
(f) apply any cash collateral held by the Administrative
Agent pursuant to Section 5.2 to the repayment of the Obligations.
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ARTICLE XII
THE ADMINISTRATIVE AGENT.
Section 12.1 Appointment. The Lenders hereby irrevocably
designate Wells Fargo as Administrative Agent (for purposes of this Article XII,
the term "Administrative Agent" also shall include Wells Fargo in its capacity
as Collateral Agent pursuant to the Security Documents) to act as specified
herein and in the other Credit Documents. Each Lender hereby irrevocably
authorizes, and each holder of any Note by the acceptance of such Note shall be
deemed irrevocably to authorize, the Administrative Agent to take such action on
their behalf under the provisions of this Agreement, the other Credit Documents
and any other instruments and agreements referred to herein or therein and to
exercise such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Administrative Agent by the terms
hereof and thereof and such other powers as are reasonably incidental thereto.
The Administrative Agent may perform any of their respective duties hereunder by
or through its officers, directors, agents, employees or affiliates.
Section 12.2 Nature of Duties. The Administrative Agent shall
not have any duties or responsibilities except those expressly set forth in this
Agreement and in the other Credit Documents. Neither the Administrative Agent
nor any of its officers, directors, agents, employees or affiliates shall be
liable for any action taken or omitted by them hereunder or under any other
Credit Document or in connection herewith or therewith, unless caused by its or
their gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final and non-appealable decision). The duties of
the Administrative Agent shall be mechanical and administrative in nature; the
Administrative Agent shall not have by reason of this Agreement or any other
Credit Document a fiduciary relationship in respect of any Lender or the holder
of any Note; and nothing in this Agreement or in any other Credit Document,
expressed or implied, is intended to or shall be so construed as to impose upon
the Administrative Agent any obligations in respect of this Agreement or any
other Credit Document except as expressly set forth herein or therein.
Section 12.3 Lack of Reliance on the Administrative Agent.
Independently and without reliance upon the Administrative Agent, each Lender
and the holder of each Note, to the extent it deems appropriate, has made and
shall continue to make (i) its own independent investigation of the financial
condition and affairs of the Companies in connection with the making and the
continuance of the Loans and the taking or not taking of any action in
connection herewith and (ii) its own appraisal of the creditworthiness of the
Companies and, except as expressly provided in this Agreement, the
Administrative Agent shall not have any duty or responsibility, either initially
or on a continuing basis, to provide any Lender or the holder of any Note with
any credit or other information with respect thereto, whether coming into its
possession before the making of the Loans or at any time or times thereafter.
The Administrative Agent shall not be responsible to any Lender or the holder of
any Note for any recitals, statements, information, representations or
warranties herein or in any document, certificate or other writing delivered in
connection herewith or for
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the execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of the Borrower or any of its Subsidiaries
or be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement or
any other Credit Document, or the financial condition of the Borrower or any of
its Subsidiaries or the existence or possible existence of any Default or Event
of Default.
Section 12.4 Certain Rights of the Administrative Agent. If
the Administrative Agent shall request instructions from the Required Lenders
with respect to any act or action (including failure to act) in connection with
this Agreement or any other Credit Document, the Administrative Agent shall be
entitled to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Required Lenders;
and the Administrative Agent shall not incur liability to any Lender by reason
of so refraining. Without limiting the foregoing, neither any Lender nor the
holder of any Note shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Required Lenders.
Section 12.5 Reliance. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cablegram, radiogram, order or other document or telephone
message signed, sent or made by any Person that the Administrative Agent
believed to be the proper Person, and, with respect to all legal matters
pertaining to this Agreement and any other Credit Document and its duties
hereunder and thereunder, upon advice of counsel selected by the Administrative
Agent.
Section 12.6 Indemnification. To the extent the Administrative
Agent (or any affiliate thereof) is not reimbursed and indemnified by the
Borrower, the Lenders will reimburse and indemnify the Administrative Agent (and
any affiliate thereof) in proportion to their respective "percentage" as used in
determining the Required Lenders (determined as if there were no Defaulting
Lenders) for and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, costs, expenses or disbursements of
whatsoever kind or nature which may be imposed on, asserted against or incurred
by the Administrative Agent (or any affiliate thereof) in performing its duties
hereunder or under any other Credit Document or in any way relating to or
arising out of this Agreement or any other Credit Document; provided that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or willful misconduct
(as determined by a court of competent jurisdiction in a final and
non-appealable decision).
Section 12.7 The Administrative Agent in its Individual
Capacity. With respect to its obligation to make Loans, or issue or participate
in Letters of Credit, under this
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Agreement, the Administrative Agent shall have the rights and powers specified
herein for a "Lender" and may exercise the same rights and powers as though it
were not performing the duties specified herein; and the term "Lender,"
"Required Lenders", "holders of Notes" or any similar terms shall, unless the
context clearly otherwise indicates, include the Administrative Agent in its
respective individual capacities. The Administrative Agent and its affiliates
may accept deposits from, lend money to, and generally engage in any kind of
banking, investment banking, trust or other business with, or provide debt
financing, equity capital or other services (including financial advisory
services) to, any Company or any Affiliate of any Company (or any Person engaged
in a similar business with any Company or any Affiliate thereof) as if they were
not performing the duties specified herein, and may accept fees and other
consideration from any Company or any Affiliate of any Company for services in
connection with this Agreement and otherwise without having to account for the
same to the Lenders.
Section 12.8 Holders. The Administrative Agent may deem and
treat the payee of any Note as the owner thereof for all purposes hereof unless
and until a written notice of the assignment, transfer or endorsement thereof,
as the case may be, shall have been filed with the Administrative Agent. Any
request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee, assignee or
indorsee, as the case may be, of such Note or of any Note or Notes issued in
exchange therefor.
Section 12.9 Resignation by the Administrative Agent.
(a) The Administrative Agent may resign from the
performance of all its respective functions and duties hereunder and/or
under the other Credit Documents at any time by giving 15 Business Days
prior written notice to the Lenders. Such resignation shall take effect
upon the appointment of a successor Administrative Agent pursuant to
clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation by the
Administrative Agent, the Required Lenders shall appoint a successor
Administrative Agent hereunder or thereunder who shall be a commercial
bank or trust company reasonably acceptable to the Borrower which
acceptance shall not be unreasonably withheld or delayed (provided that
the Borrower's approval shall not be required if an Event of Default
then exists).
(c) If a successor Administrative Agent shall not have
been so appointed within such 15 Business Day period, the
Administrative Agent with the consent of the Borrower (which consent
shall not be unreasonably withheld or delayed, provided that the
Borrower's consent shall not be required if an Event of Default then
exists), shall then appoint a successor Administrative Agent who shall
serve as Administrative Agent hereunder or thereunder until such time,
if any, as the Required Lenders appoint a successor Administrative
Agent as provided above.
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(d) If no successor Administrative Agent has been
appointed pursuant to clause (b) or (c) above by the 20th Business Day
after the date such notice of resignation was given by the
Administrative Agent, the Administrative Agent's resignation shall
become effective and the Required Lenders shall thereafter perform all
the duties of the Administrative Agent hereunder and/or under any other
Credit Document until such time, if any, as the Required Lenders
appoint a successor Administrative Agent as provided above.
Section 12.10 Issuing Lender. The Issuing Lender shall have
the rights and protections hereunder to the same extent as if it were the
Administrative Agent.
ARTICLE XIII
MISCELLANEOUS.
Section 13.1 Payment of Expenses, etc. The Borrower shall:
(a) whether or not the transactions herein contemplated
are consummated, pay all reasonable out-of-pocket costs and expenses of
the Administrative Agent (including, without limitation, the reasonable
fees and disbursements of legal counsel of the Administrative Agent and
of the Administrative Agent's consultants) in connection with the
preparation, execution and delivery of this Agreement and the other
Credit Documents and the documents and instruments referred to herein
and therein and any amendment, waiver or consent relating hereto or
thereto, of the Administrative Agent in connection with its syndication
efforts with respect to this Agreement and of the Administrative Agent
and, after the occurrence of an Event of Default, each of the Lenders
in connection with the enforcement of this Agreement and the other
Credit Documents and the documents and instruments referred to herein
and therein or in connection with any refinancing or restructuring of
the credit arrangements provided under this Agreement in the nature of
a "work-out" or pursuant to any insolvency or bankruptcy proceedings
(including, in each case without limitation, the reasonable fees and
disbursements of counsel and consultants for the Administrative Agent
and, after the occurrence of an Event of Default, counsel for each of
the Lenders);
(b) pay and hold the Administrative Agent and each of the
Lenders harmless from and against any and all present and future stamp,
excise and other similar documentary taxes with respect to the
foregoing matters and save the Administrative Agent and each of the
Lenders harmless from and against any and all liabilities with respect
to or resulting from any delay or omission (other than to the extent
attributable to the Administrative Agent or such Lender) to pay such
taxes; and
(c) indemnify the Administrative Agent and each Lender,
and each of their respective officers, directors, employees,
representatives, agents, affiliates, trustees and investment advisors
from and hold each of them harmless against any and all liabilities,
obligations (including removal or remedial actions), losses, damages,
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penalties, claims, actions, judgments, suits, costs, expenses and
disbursements (including reasonable attorneys' and consultants' fees
and disbursements) incurred by, imposed on or assessed against any of
them as a result of, or arising out of, or in any way related to, or by
reason of, (a) any investigation, litigation or other proceeding
(whether or not the Administrative Agent or any Lender is a party
thereto and whether or not such investigation, litigation or other
proceeding is brought by or on behalf of any Credit Party) related to
the entering into and/or performance of this Agreement or any other
Credit Document or the use of any Letter of Credit or the proceeds of
any Loans hereunder or any other transactions contemplated herein or in
any other Credit Document or the exercise of any of their rights or
remedies provided herein or in the other Credit Documents, or (b) the
actual or alleged presence of Hazardous Materials in the air, surface
water or groundwater or on the surface or subsurface of any Real
Property owned, leased or at any time operated by the Borrower or any
of its Subsidiaries, the generation, storage, transportation, handling
or disposal of Hazardous Materials by the Borrower or any of its
Subsidiaries at any location, whether or not owned, leased or operated
by the Borrower or any of its Subsidiaries, the non-compliance of any
Real Property with foreign, federal, state and local laws, regulations,
and ordinances (including applicable permits thereunder) applicable to
any Real Property, or any Environmental Claim asserted against the
Borrower, any of its Subsidiaries or any Real Property owned, leased or
at any time operated by the Borrower or any of its Subsidiaries,
including, in each case, without limitation, the reasonable fees and
disbursements of counsel and other consultants incurred in connection
with any such investigation, litigation or other proceeding (but
excluding any losses, liabilities, claims, damages or expenses to the
extent incurred by reason of the gross negligence or willful misconduct
of the Person to be indemnified (as determined by a court of competent
jurisdiction in a final and non-appealable decision)).
To the extent that the undertaking to indemnify, pay or hold harmless the
Administrative Agent or any Lender set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Borrower
shall make the maximum contribution to the payment and satisfaction of each of
the indemnified liabilities which is permissible under applicable law.
Section 13.2 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
an Event of Default, the Administrative Agent and each Lender is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to any Credit Party or to any other Person,
any such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other Indebtedness at
any time held or owing by the Administrative Agent or such Lender (including,
without limitation, by branches and agencies of such Lender wherever located) to
or for the credit or the account of any Credit Party against and on account of
the Obligations and liabilities of the Credit Parties to the Administrative
Agent or such Lender under this Agreement or under any of the other
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Credit Documents, including, without limitation, all interests in Obligations
purchased by such Lender pursuant to Section 13.6(b), and all other claims of
any nature or description arising out of or connected with this Agreement or any
other Credit Document, irrespective of whether or not such Lender shall have
made any demand hereunder and although said Obligations, liabilities or claims,
or any of them, shall be contingent or unmatured.
Section 13.3 Notices. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including telegraphic, telex, telecopier or cable communication) and
mailed, telegraphed, telexed, telecopied, cabled or delivered: if to any Credit
Party, at the address specified opposite its signature below or in the other
relevant Credit Documents; if to any Lender, at its address as set forth in the
Register; and if to the Administrative Agent, at the Notice Office; or, as to
any Credit Party or the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties hereto and, as
to each Lender, at such other address as shall be designated by such Lender in a
written notice to the Borrower and the Administrative Agent. All such notices
and communications shall, when mailed, telegraphed, telexed, telecopied, or
cabled or sent by overnight courier, be effective when deposited in the mails,
delivered to the telegraph company, cable company or overnight courier, as the
case may be, or sent by telex or telecopier, except that notices and
communications to the Administrative Agent and the Borrower shall not be
effective until received by the Administrative Agent or the Borrower, as the
case may be.
Section 13.4 Benefit of Agreement; Assignments;
Participations.
(a) RESTRICTIONS ON ASSIGNMENT BY BORROWER; PARTICIPANTS.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties
hereto; provided, however, the Borrower may not assign or transfer any
of its rights, obligations or interest hereunder without the prior
written consent of the Lenders and, provided further, that, although
any Lender may transfer, assign or grant participations in its rights
hereunder, such Lender shall remain a "Lender" for all purposes
hereunder (and may not transfer or assign all or any portion of its
Commitments hereunder except as provided in Sections 2.13 and 13.4(b))
and the transferee, assignee or participant, as the case may be, shall
not constitute a "Lender" hereunder and, provided further, that no
Lender shall transfer or grant any participation under which the
participant shall have rights to approve any amendment to or waiver of
this Agreement or any other Credit Document except to the extent such
amendment or waiver would
(i) extend the final scheduled maturity of any
Loan, Note or Letter of Credit (unless such Letter of Credit
is not extended beyond the Revolving Loan Maturity Date) in
which such participant is participating, or reduce the rate or
extend the time of payment of interest or Fees thereon (except
in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the
principal amount thereof (it being understood that any
amendment or modification to the financial definitions in this
Agreement or to Section 13.7(a) shall not constitute a
reduction in the rate of interest or
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Fees payable hereunder), or increase the amount of the
participant's participation over the amount thereof then in
effect (it being understood that a waiver of any Default or
Event of Default or of a mandatory reduction in the Total
Commitment shall not constitute a change in the terms of such
participation, and that an increase in any Commitment (or the
available portion thereof) or Loan shall be permitted without
the consent of any participant if the participant's
participation is not increased as a result thereof),
(ii) consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this
Agreement, or
(iii) release all or substantially all of the
Collateral under all of the Security Documents (except as
expressly provided in the Credit Documents) supporting the
Loans or Letters of Credit hereunder in which such participant
is participating or release all or substantially all of the
Subsidiary Guarantors.
In the case of any such participation, the participant shall not have
any rights under this Agreement or any of the other Credit Documents
(the participant's rights against such Lender in respect of such
participation to be those set forth in the agreement executed by such
Lender in favor of the participant relating thereto) and all amounts
payable by the Borrower hereunder shall be determined as if such Lender
had not sold such participation.
(b) ASSIGNMENTS TO AFFILIATES. Notwithstanding the
foregoing, any Lender (or any Lender together with one or more other
Lenders) may (x) assign all or a portion of its Commitments and related
outstanding Obligations (or, if the Commitments with respect to the
relevant Tranche have terminated, outstanding Obligations) hereunder to
(i) its parent company and/or any affiliate of such Lender which is at
least 50% owned by such Lender or its parent company or to one or more
Lenders or (ii) in the case of any Lender that is a fund that invests
in loans, any other fund that invests in loans and is managed or
advised by the same investment advisor of such Lender or by an
Affiliate of such investment advisor or (y) assign all, or if less than
all, a portion equal to at least $1,000,000 in the aggregate for the
assigning Lender or assigning Lenders, of such Commitments and related
outstanding Obligations (or, if the Commitments with respect to the
relevant Tranche have terminated, outstanding Obligations) hereunder to
one or more Eligible Transferees (treating any fund that invests in
loans and any other fund that invests in loans and is managed or
advised by the same investment advisor of such fund or by an Affiliate
of such investment advisor as a single Eligible Transferee), each of
which assignees shall become a party to this Agreement as a Lender by
execution of an Assignment and Assumption Agreement, provided that,
(i) upon the surrender of the relevant Notes by
the assigning Lender (or, upon such assigning Lender's
indemnifying the Borrower for any lost Note pursuant to a
customary indemnification agreement) new Notes will be issued,
at the Borrower's expense, to such new Lender and to the
assigning Lender upon the request of such new Lender or
assigning Lender, such new
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Notes to be in conformity with the requirements of Section 2.5
(with appropriate modifications) to the extent needed to
reflect the revised Commitments and/or outstanding Loans, as
the case may be,
(ii) the consent of the Administrative Agent
shall be required for any assignment to an Eligible Transferee
pursuant to clause (y) above (such consent not to be
unreasonably withheld or delayed),
(iii) so long as no Default or Event of Default
then exists, the consent of the Borrower shall be required for
any assignment to an Eligible Transferee pursuant to clause
(y) above that occurs after the 30th day following the Closing
Date (such consent not to be unreasonably withheld or
delayed),
(iv) the Administrative Agent shall receive at
the time of each such assignment, from the assigning or
assignee Lender, the payment of a non-refundable assignment
fee of $3,500 (only one such fee shall be payable in the event
of a simultaneous assignment to multiple assignees that are
Affiliates or from multiple assignors that are Affiliates),
and
(v) no such transfer or assignment will be
effective until recorded by the Administrative Agent on the
Register pursuant to Section 13.14.
To the extent of any assignment pursuant to this Section 13.4(b), the
assigning Lender shall be relieved of its obligations hereunder with
respect to its assigned Commitments and outstanding Loans. At the time
of each assignment pursuant to this Section 13.4(b) to a Person which
is not already a Lender hereunder and which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for
Federal income tax purposes, the respective assignee Lender shall, to
the extent legally entitled to do so, provide to the Borrower the
appropriate Internal Revenue Service Forms (and, if applicable, a
Section 5.4(b)(ii) Certificate) described in Section 5.4(b). To the
extent that an assignment of all or any portion of a Lender's
Commitments and related outstanding Obligations pursuant to Section
2.13 or this Section 13.4(b) would, at the time of such assignment,
result in increased costs under Section 2.10, 3.6 or 5.4 from those
being charged by the respective assigning Lender prior to such
assignment, then the Borrower shall not be obligated to pay such
increased costs (although the Borrower, in accordance with and pursuant
to the other provisions of this Agreement, shall be obligated to pay
any other increased costs of the type described above resulting from
changes after the date of the respective assignment).
(c) ASSIGNMENTS BY LENDERS FOR COLLATERAL PURPOSES.
Nothing in this Agreement shall prevent or prohibit any Lender from
pledging its Loans and Notes hereunder to a Federal Reserve Bank in
support of borrowings made by such Lender from such Federal Reserve
Bank and, upon written notice to the Administrative Agent, any Lender
which is a fund may pledge all or any portion of its Loans and Notes to
its trustee in support of its obligations to its trustee. No pledge
pursuant to
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this clause (c) shall release the transferor Lender from any of its
obligations hereunder.
Section 13.5 No Waiver; Remedies Cumulative. No failure or
delay on the part of the Administrative Agent, the Collateral Agent, the Issuing
Lender or any Lender in exercising any right, power or privilege hereunder or
under any other Credit Document and no course of dealing between any Credit
Party and the Administrative Agent, the Collateral Agent, the Issuing Lender or
any Lender shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Credit
Document preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder or thereunder. The rights, powers and
remedies herein or in any other Credit Document expressly provided are
cumulative and not exclusive of any rights, powers or remedies which the
Administrative Agent, the Collateral Agent, the Issuing Lender or any Lender
would otherwise have. No notice to or demand on any Credit Party in any case
shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent, the Collateral Agent, the Issuing Lender or any Lender to
any other or further action in any circumstances without notice or demand.
Section 13.6 Payments Pro Rata.
(a) Except as otherwise provided in this Agreement, the
Administrative Agent agrees that promptly after its receipt of each
payment from or on behalf of the Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Lenders (other than
any Lender that has consented in writing to waive its pro rata share of
any such payment) pro rata based upon their respective shares, if any,
of the Obligations with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive
any amount hereunder (whether by voluntary payment, by realization upon
security, by the exercise of the right of setoff or banker's lien, by
counterclaim or cross action, by the enforcement of any right under the
Credit Documents, or otherwise), which is applicable to the payment of
the principal of, or interest on, the Loans, Unpaid Drawings,
Commitment Fee or Letter of Credit Fees, of a sum which with respect to
the related sum or sums received by other Lenders is in a greater
proportion than the total of such Obligation then owed and due to such
Lender bears to the total of such Obligation then owed and due to all
of the Lenders immediately prior to such receipt, then such Lender
receiving such excess payment shall purchase for cash without recourse
or warranty from the other Lenders an interest in the Obligations of
the respective Credit Party to such Lenders in such amount as shall
result in a proportional participation by all the Lenders in such
amount; provided that if all or any portion of such excess amount is
thereafter recovered from such Lenders, such purchase shall be
rescinded and the purchase price restored to the extent of such
recovery, but without interest.
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(c) Notwithstanding anything to the contrary contained herein,
the provisions of the preceding Sections 13.6(a) and (b) shall be
subject to the express provisions of this Agreement which require, or
permit, differing payments to be made to Non-Defaulting Lenders as
opposed to Defaulting Lenders.
Section 13.7 Calculations; Computations; Accounting Terms.
(a) The financial statements to be furnished to the
Lenders pursuant hereto shall be made and prepared in accordance with
GAAP in the United States consistently applied throughout the periods
involved (except as set forth in the notes thereto or as otherwise
disclosed in writing by the Borrower to the Lenders); provided that,
except as otherwise specifically provided herein, all computations of
Excess Cash Flow, and all computations and all definitions used in
determining compliance with Sections 10.7 through 10.9, inclusive,
shall utilize accounting principles and policies in conformity with
those used to prepare the latest audited historical financial
statements of the Borrower referred to in Section 8.5(a).
(b) If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any
Credit Document, and either the Borrower or the Required Lenders shall
so request, the Administrative Agent, the Lenders and the Borrower
shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP
(subject to the approval of the Required Lenders); provided that, until
so amended, (i) such ratio or requirement shall continue to be computed
in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Administrative Agent and the Lenders
financial statements and other documents required hereunder setting
forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
(c) All computations of interest, Commitment Fee and
other Fees hereunder shall be made on the basis of a year of 360 days
for the actual number of days (including the first day but excluding
the last day; except that in the case of Letter of Credit Fees, the
last day shall be included) occurring in the period for which such
interest, Commitment Fee or other Fees are payable; provided that
interest in respect of Base Rate Loans determined by reference to the
prime rate shall be made on the basis of a year of 365 or 366 days, as
the case may be, for the actual number of days occurring in the period
for which such interest is payable.
Section 13.8 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF
MINNESOTA. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY
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OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
MINNESOTA, OR OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA IN
EACH CASE WHICH ARE LOCATED IN THE CITY OF MINNEAPOLIS, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT,
THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS.
(b) THE BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY
CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER THE
BORROWER, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENTS
BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH COURTS LACK
PERSONAL JURISDICTION OVER THE BORROWER. THE BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
THE BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW,
SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. THE
BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF
PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM
IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER
CREDIT DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR
INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
ADMINISTRATIVE AGENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER IN ANY OTHER
JURISDICTION.
(c) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE
AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS
REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
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(d) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
Section 13.9 Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
Section 13.10 Headings Descriptive. The headings of the
several sections and subsections of this Agreement are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Agreement.
Section 13.11 Amendment or Waiver; etc.
(a) Neither this Agreement nor any other Credit Document
nor any terms hereof or thereof may be amended, changed, waived,
discharged or terminated unless such amendment, change, waiver,
discharge or termination is in writing signed by the respective Credit
Parties party thereto and the Required Lenders, provided that no such
amendment, change, waiver, discharge or termination shall, without the
consent of each Lender (other than a Defaulting Lender) (with
Obligations being directly affected in the case of following clause
(i)):
(i) extend the final scheduled maturity of any
Loan or Note or extend the stated expiration date of any
Letter of Credit beyond the Revolving Loan Maturity Date, or
reduce the rate or extend the time of payment of interest or
Fees thereon (except in connection with the waiver of
applicability of any post-default increase in interest rates),
or reduce the principal amount thereof (it being understood
that any amendment or modification to the financial
definitions in this Agreement or to Section 13.7 shall not
constitute a reduction in the rate of interest or Fees for the
purposes of this clause (i)),
(ii) release all or substantially all of the
Collateral (except as expressly provided in the Credit
Documents) under all the Security Documents or release all or
substantially all of the Subsidiary Guarantors,
(iii) amend, modify or waive any provision of this
Section 13.11 (except for technical amendments with respect to
additional extensions of credit pursuant to this Agreement
which afford the protections to such additional extensions of
credit of the type provided to the Term Loans and the
Revolving Loan Commitments on the Closing Date),
(iv) reduce the percentage specified in the
definition of Required Lenders (it being understood that, with
the consent of the Required Lenders, additional extensions of
credit pursuant to this Agreement may be included in
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the determination of the Required Lenders on substantially the
same basis as the extensions of Term Loans and Revolving Loan
Commitments are included on the Closing Date),
(v) consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this
Agreement,
(vi) amend Section 2.9 so as to permit Interest
Periods that are greater than six months,
(vii) amend Section 13.4(b), or
(viii) amend, modify or waive any Term Loan
Scheduled Repayment to be made pursuant to Sections 5.2(b) -
(f);
provided further, that no such amendment, change, waiver, discharge or
termination shall:
(ix) increase the Commitments of any Lender over
the amount thereof then in effect without the consent of such
Lender (it being understood that waivers or modifications of
conditions precedent, covenants, Defaults or Events of Default
or of a mandatory reduction in the Total Commitment shall not
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 constitute an increase of the Commitment
of such Lender),
(x) affect the rights or duties of the
Administrative Agent, the Collateral Agent, the Issuing Lender
or the Swingline Lender hereunder or under any other Credit
Document, without the prior written consent of the
Administrative Agent, the Collateral Agent, the Issuing Lender
or the Swingline Lender, as the case may be,
(xi) (A) amend, change, modify or waive Section
5.2(a) or (B) have the effect (either immediately) or at some
later time) of enabling the Borrower to satisfy a condition
precedent to the making of a Revolving Loan or Swingline Loan
or the issuance of a Letter of Credit, unless such amendment,
modification or waiver shall have been consented to by the
holders of more than 50% of the aggregate principal amount of
the Revolving Loan Commitments,
(xii) amend, change, modify or waive the
provisions of Section 5.2(g), or adversely affect the rights
of Lenders participating in any Tranche different from those
of the Lenders participating in other Tranches, unless, in any
such case, such amendment, modification or waiver shall have
been consented to by the holders of (in Dollars) more than 50%
of the aggregate amount of Loans outstanding under the Tranche
or Tranches affected by such modification, or, in the case of
a modification affecting the Revolving Loan Commitments, the
Lenders holding more than 50% of the aggregate principal
amount of Revolving Loan Commitments (it being agreed and
understood that
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modifications which affect all Lenders ratably shall not be
considered hereunder as affecting Lenders of any Tranche
differently).
Section 13.12 Survival of Indemnities. All indemnities set
forth herein including, without limitation, in Sections 2.10, 2.11, 3.6, 5.4,
12.6 and 13.1 shall survive the execution, delivery and termination of this
Agreement and the Notes and the making and repayment of the Obligations.
Section 13.13 Domicile of Loans. Each Lender may transfer and
carry its Loans at, to or for the account of any office, Subsidiary or Affiliate
of such Lender. Notwithstanding anything to the contrary contained herein, to
the extent that a transfer of Loans pursuant to this Section 13.13 would, at the
time of such transfer, result in increased costs under Section 2.10, 2.11, 3.6
or 5.4 from those being charged by the respective Lender prior to such transfer,
then the Borrower shall not be obligated to pay such increased costs (although
the Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer).
Section 13.14 Register. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for purposes of
this Section 13.14, to maintain a register (the "Register") on which it will
record the Commitments from time to time of each of the Lenders, the Loans made
by each of the Lenders and each repayment in respect of the principal amount of
the Loans of each Lender. Failure to make any such recordation, or any error in
such recordation, shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Lender, the transfer of the Commitments of such
Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until such transfer is
recorded on the Register maintained by the Administrative Agent with respect to
ownership of such Commitments and Loans and prior to such recordation all
amounts owing to the transferor with respect to such Commitments and Loans shall
remain owing to the transferor. The registration of assignment or transfer of
all or part of any Commitments and Loans shall be recorded by the Administrative
Agent on the Register only upon the acceptance by the Administrative Agent of a
properly executed and delivered Assignment and Assumption Agreement pursuant to
Section 13.4(b). Coincident with the delivery of such an Assignment and
Assumption Agreement to the Administrative Agent for acceptance and registration
of assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Lender shall surrender the Note (if
any) evidencing such Loan, and thereupon one or more new Notes in the same
aggregate principal amount shall be issued to the assigning or transferor Lender
and/or the new Lender at the request of any such Lender. The Borrower agrees to
indemnify the Administrative Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Administrative Agent in performing its duties under
this Section 13.14.
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Section 13.15 Confidentiality.
(a) TREATMENT OF CONFIDENTIAL INFORMATION. Subject to the
provisions Section 13.15(b), each Lender agrees that it will use its
reasonable efforts not to disclose without the prior consent of the
Borrower (other than to its employees, auditors, advisors or counsel or
to another Lender if such Lender or such Lender's holding or parent
company in its sole discretion determines that any such party should
have access to such information, provided such Persons shall be subject
to the provisions of this Section 13.15 to the same extent as such
Lender) any information with respect to the Borrower or any of its
Subsidiaries which is now or in the future furnished pursuant to this
Agreement or any other Credit Document and which is designated by the
Borrower to the Lenders in writing as confidential, provided that any
Lender may disclose any such information (i) as has become generally
available to the public other than by virtue of a breach of this
Section 13.15(a) by the respective Lender, (ii) as may be required or
appropriate in any report, statement or testimony submitted to any
municipal, state or Federal regulatory body having or claiming to have
jurisdiction over such Lender or to the Federal Reserve Board or the
Federal Deposit Insurance Corporation or similar organizations (whether
in the United States or elsewhere) or their successors, (iii) as may be
required or appropriate in respect to any summons or subpoena or in
connection with any litigation, (iv) in order to comply with any law,
order, regulation or ruling applicable to such Lender, (v) to the
Administrative Agent or the Collateral Agent, (vi) to any prospective
or actual transferee or participant in connection with any contemplated
transfer or participation of any of the Notes or Commitments or any
interest therein by such Lender, provided that such prospective
transferee agrees to be bound by the confidentiality provisions
contained in this Section 13.15, and (vii) to any direct or indirect
contractual counterparty to swap agreements with a Lender or such
contractual counterparty's professional advisor provided that such
contractual counterparty or professional advisor agrees to be bound by
the provisions of this Section 13.15.
(b) The Borrower hereby acknowledges and agrees that each
Lender may share with any of its affiliates, and such affiliates may
share with such Lender any information related to the Borrower or any
of its Subsidiaries (including, without limitation, any non-public
customer information regarding the creditworthiness of the Borrower and
its Subsidiaries), provided such Persons shall be subject to the
provisions of this Section 13.15 to the same extent as such Lender.
Section 13.16 Debt Rating. The Borrower shall, within 90 days
after the Closing Date, obtain a reaffirmation of all debt ratings (each a "Debt
Rating") from Moody's or S&P for all of the Borrower's long term debt, including
the Indebtedness, actual and implied.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
infoUSA INC. infoUSA INC.
5711 South 86th Circle
Omaha, Nebraska 68127
Attn: Chief Financial Officer By:_________________________________
Telephone No.: (402) 593-4500 Name: ______________________________
Telecopier No.: (402) 331-1505 Title: _______________________________
Signature Page 1 of 6 to Credit Agreement by and among infoUSA Inc., various
financial institutions and Wells Fargo Bank, National Association, as lead
arranger, sole book runner and administrative agent
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent
and as a Lender
By:_________________________________
Name: ______________________________
Title: _______________________________
Signature Page 2 of 6 to Credit Agreement by and among infoUSA Inc., various
financial institutions and Wells Fargo Bank, National Association, as lead
arranger, sole book runner and administrative agent
BANK OF AMERICA, N.A., as a Lender
By:_________________________________
Name: ______________________________
Title: _______________________________
Signature Page 3 of 6 to Credit Agreement by and among infoUSA Inc., various
financial institutions and Wells Fargo Bank, National Association, as lead
arranger, sole book runner and administrative agent
FIRST NATIONAL BANK OF OMAHA, as a Lender
By:_________________________________
Name: ______________________________
Title: _______________________________
Signature Page 4 of 6 to Credit Agreement by and among infoUSA Inc., various
financial institutions and Wells Fargo Bank, National Association, as lead
arranger, sole book runner and administrative agent
LASALLE BANK, NATIONAL
ASSOCIATION, as a Lender
By:_________________________________
Name: ______________________________
Title: _______________________________
Signature Page 5 of 6 to Credit Agreement by and among infoUSA Inc., various
financial institutions and Wells Fargo Bank, National Association, as lead
arranger, sole book runner and administrative agent
U.S. BANK, N.A., as a Lender
By:_________________________________
Name: ______________________________
Title: _______________________________
Signature Page 6 of 6 to Credit Agreement by and among infoUSA Inc., various
financial institutions and Wells Fargo Bank, National Association, as lead
arranger, sole book runner and administrative agent
SCHEDULE I
DISCLOSURE LETTER
infoUSA Credit Agreement - Schedule I
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