EXHIBIT 4.8
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AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
INFOUSA INC.,
VARIOUS LENDERS,
AND
WELLS FARGO BANK, NATIONAL ASSOCIATION,
AS LEAD ARRANGER, SOLE BOOK RUNNER AND
ADMINISTRATIVE AGENT
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DATED AS OF JUNE 4, 2004
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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.......................................................................... 26
Section 2.1 The Commitments................................................................................. 26
Section 2.2 Minimum Amount of Each Borrowing................................................................ 29
Section 2.3 Notice of Borrowing............................................................................. 29
Section 2.4 Disbursement of Funds........................................................................... 31
Section 2.5 Notes........................................................................................... 32
Section 2.6 Conversions..................................................................................... 33
Section 2.7 Pro Rata Borrowings............................................................................. 34
Section 2.8 Interest........................................................................................ 34
Section 2.9 Interest Periods................................................................................ 35
Section 2.10 Increased Costs, Illegality, etc............................................................... 36
Section 2.11 Compensation................................................................................... 38
Section 2.12 Change of Lending Office....................................................................... 39
Section 2.13 Replacement of Lenders......................................................................... 39
Section 2.14 Limitation on Additional Amounts............................................................... 40
ARTICLE III LETTERS OF CREDIT.................................................................................. 41
Section 3.1 Letters of Credit............................................................................... 41
Section 3.2 Maximum Letter of Credit Outstandings; Final Maturities......................................... 42
Section 3.3 Letter of Credit Requests; Minimum Stated Amount................................................ 42
Section 3.4 Letter of Credit Participations................................................................. 43
Section 3.5 Agreement to Repay Letter of Credit Drawings.................................................... 45
Section 3.6 Increased Costs................................................................................. 46
ARTICLE IV COMMITMENT FEE; FEES; REDUCTIONS OF COMMITMENT...................................................... 47
Section 4.1 Fees............................................................................................ 47
Section 4.2 Voluntary Termination of Unutilized Revolving Loan Commitments.................................. 48
Section 4.3 Mandatory Reduction of Commitments.............................................................. 48
ARTICLE V PREPAYMENTS; PAYMENTS; TAXES......................................................................... 49
Section 5.1 Voluntary Prepayments........................................................................... 49
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Section 5.2 Mandatory Prepayment of Revolving Facility...................................................... 50
Section 5.3 Term Facility Scheduled Repayment Dates......................................................... 50
Section 5.4 Mandatory Prepayment of Term Loans.............................................................. 51
Section 5.5 Application of Mandatory Prepayments............................................................ 54
Section 5.6 Method and Place of Payment..................................................................... 55
Section 5.7 Net Payments.................................................................................... 55
ARTICLE VI CONDITIONS PRECEDENT TO CREDIT EVENTS............................................................... 57
Section 6.1 Second Closing Date............................................................................. 57
Section 6.2 Disclosure Letter; Notes........................................................................ 58
Section 6.3 Officer's Certificate........................................................................... 58
Section 6.4 Opinion of Counsel.............................................................................. 58
Section 6.5 OneSource Acquisition........................................................................... 58
Section 6.6 Closing Leverage Ratio.......................................................................... 59
Section 6.7 Corporate Documents; Proceedings; etc........................................................... 59
Section 6.8 Plans; Shareholders' Agreements; Employment Agreements.......................................... 60
Section 6.9 Fee Payment..................................................................................... 61
Section 6.10 Adverse Change, etc............................................................................ 61
Section 6.11 Litigation..................................................................................... 61
Section 6.12 Reaffirmation Agreement........................................................................ 61
Section 6.13 Mortgage Amendments............................................................................ 61
Section 6.14 Evidence of Perfection, etc.................................................................... 62
Section 6.15 Insurance Policies............................................................................. 63
Section 6.16 Financial Statements; Projections.............................................................. 63
Section 6.17 Solvency Certificate; Insurance Certificates................................................... 63
Section 6.18 Rating......................................................................................... 63
Section 6.19 Market Disruption.............................................................................. 63
Section 6.20 Fees, etc...................................................................................... 63
ARTICLE VII CONDITIONS PRECEDENT TO ALL CREDIT EVENTS.......................................................... 64
Section 7.1 No Default; Representations and Warranties...................................................... 64
Section 7.3 Notice of Borrowing; Letter of Credit Request................................................... 64
ARTICLE VIII REPRESENTATIONS, WARRANTIES AND AGREEMENTS........................................................ 65
Section 8.1 Organizational Status........................................................................... 65
Section 8.2 Power and Authority............................................................................. 65
Section 8.3 No Violation.................................................................................... 65
Section 8.4 Approvals....................................................................................... 66
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Section 8.5 Financial Statements; Financial Condition; Undisclosed Liabilities;
Projections; etc............................................................................................ 66
Section 8.6 Litigation...................................................................................... 68
Section 8.7 True and Complete Disclosure.................................................................... 69
Section 8.8 Use of Proceeds; Margin Regulations............................................................. 69
Section 8.9 Tax Returns and Payments........................................................................ 69
Section 8.10 Compliance with ERISA.......................................................................... 70
Section 8.11 The Security Documents......................................................................... 71
Section 8.12 Representations and Warranties in the Credit Documents......................................... 72
Section 8.13 Properties..................................................................................... 72
Section 8.14 Capitalization................................................................................. 72
Section 8.15 Subsidiaries................................................................................... 72
Section 8.16 Compliance with Statutes, etc.................................................................. 73
Section 8.17 Investment Company Act......................................................................... 73
Section 8.18 Public Utility Holding Company Act............................................................. 73
Section 8.19 Environmental Matters.......................................................................... 73
Section 8.20 Labor Relations................................................................................ 74
Section 8.21 Patents, Licenses, Franchises and Formulas..................................................... 74
Section 8.22 Existing Indebtedness.......................................................................... 75
Section 8.23 Insurance...................................................................................... 75
ARTICLE IX AFFIRMATIVE COVENANTS............................................................................... 75
Section 9.1 Information Covenants........................................................................... 75
Section 9.2 Books, Records and Inspections; Annual Meetings................................................. 78
Section 9.3 Maintenance of Property; Insurance.............................................................. 79
Section 9.4 Existence; Franchises........................................................................... 80
Section 9.5 Compliance with Statutes, etc................................................................... 80
Section 9.6 Compliance with Environmental Laws.............................................................. 80
Section 9.7 ERISA........................................................................................... 81
Section 9.8 End of Fiscal Years; Fiscal Quarters............................................................ 82
Section 9.9 Performance of Obligations...................................................................... 82
Section 9.10 Payment of Taxes............................................................................... 83
Section 9.11 Additional Security; Further Assurances........................................................ 83
Section 9.12 Use of Proceeds................................................................................ 84
Section 9.13 Foreign Subsidiaries Security.................................................................. 84
Section 9.14 Margin Stock................................................................................... 85
Section 9.15 Permitted Acquisitions......................................................................... 85
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ARTICLE X NEGATIVE COVENANTS................................................................................... 88
Section 10.1 Liens.......................................................................................... 88
Section 10.2 Consolidation, Merger, Purchase or Sale of Assets, etc......................................... 91
Section 10.3 Dividends...................................................................................... 92
Section 10.4 Indebtedness................................................................................... 93
Section 10.5 Advances, Investments and Loans................................................................ 95
Section 10.6 Transactions with Affiliates................................................................... 97
Section 10.7 Consolidated Fixed Charge Coverage Ratio....................................................... 98
Section 10.8 Consolidated Total Leverage Ratio.............................................................. 98
Section 10.9 Consolidated Net Worth......................................................................... 98
Section 10.10 Modifications of Certificate of Incorporation, By-Laws and Certain Other
Agreements, etc............................................................................................. 98
Section 10.11 Limitation on Certain Restrictions on Subsidiaries............................................ 98
Section 10.12 Limitation on Issuance of Capital Stock....................................................... 99
Section 10.13 Business...................................................................................... 99
Section 10.14 Limitation on Creation of Subsidiaries........................................................ 100
Section 10.15 Operating Leases.............................................................................. 100
ARTICLE XI EVENTS OF DEFAULT................................................................................... 100
Section 11.1 Events of Default.............................................................................. 100
Section 11.2 Remedies....................................................................................... 103
ARTICLE XII THE ADMINISTRATIVE AGENT........................................................................... 104
Section 12.1 Appointment.................................................................................... 104
Section 12.2 Nature of Duties............................................................................... 104
Section 12.3 Lack of Reliance on the Administrative Agent................................................... 105
Section 12.4 Certain Rights of the Administrative Agent..................................................... 105
Section 12.5 Reliance....................................................................................... 105
Section 12.6 Indemnification................................................................................ 106
Section 12.7 The Administrative Agent in its Individual Capacity............................................ 106
Section 12.8 Holders........................................................................................ 106
Section 12.9 Resignation by the Administrative Agent........................................................ 106
Section 12.10 Issuing Lender................................................................................ 107
ARTICLE XIII MISCELLANEOUS..................................................................................... 107
Section 13.1 Payment of Expenses, etc....................................................................... 107
Section 13.2 Right of Setoff................................................................................ 109
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Section 13.3 Notices........................................................................................ 109
Section 13.4 Benefit of Agreement; Assignments; Participations.............................................. 109
Section 13.5 No Waiver; Remedies Cumulative................................................................. 112
Section 13.6 Payments Pro Rata.............................................................................. 112
Section 13.7 Calculations; Computations; Accounting Terms................................................... 113
Section 13.8 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL........................................................................................ 114
Section 13.9 Counterparts................................................................................... 115
Section 13.10 Headings Descriptive.......................................................................... 115
Section 13.11 Amendment or Waiver; etc...................................................................... 115
Section 13.12 Replacement of Non-Consenting Lender.......................................................... 117
Section 13.13 Survival of Indemnities....................................................................... 118
Section 13.14 Domicile of Loans............................................................................. 118
Section 13.15 Register...................................................................................... 118
Section 13.16 Confidentiality............................................................................... 118
Section 13.17 USA Patriot Act Notice........................................................................ 119
Section 13.18 Restatement of Earlier Agreement.............................................................. 119
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SCHEDULE I Disclosure Letter
EXHIBIT A Form of Notice of Borrowing
EXHIBIT B Form of Term Facility A Note
EXHIBIT C Form of Term Facility B Note
EXHIBIT D Form of Revolving Note
EXHIBIT E Form of Swingline Note
EXHIBIT F Form of Letter of Credit Request
EXHIBIT G Form of Section 5.7(b)(ii) Certificate
EXHIBIT H Form of Officers' Certificate
EXHIBIT I Form of Solvency Certificate
EXHIBIT J Form of Assignment and Assumption Agreement
EXHIBIT K Form of Intercompany Note
EXHIBIT L Form of Subordination Provisions
EXHIBIT M Form of Compliance Certificate
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 4,
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, certain of the Lenders and the Administrative Agent
are parties to a Credit Agreement dated as of March 25, 2004 (the "Old Credit
Agreement"). In connection with the Borrower's acquisition of OneSource
Information Services, Inc., the Borrower, such Lenders and the Administrative
Agent desire to amend and restate the Old Credit Agreement.
Accordingly, 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.
"Acquisition Subsidiary" means OSIS Acquisition Corp., a Delaware
corporation and an indirect, wholly-owned subsidiary of the Borrower.
"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 I, Level II, Level III, or Level IV, 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 for LIBOR Loans Applicable Margin for Alternate Base Rate Loans
- --------------------------------------------------------------- --------------------------------------------------
Total
Leverage Revolving Term Term Revolving Term Term Commitment
Level Ratio Facility Facility A Facility B Facility Facility A Facility B Fee
- ----- ------------ --------- ---------- ---------- --------- ---------- ---------- -----------
I > or = 3.00x 2.75% 2.75% 3.00% 1.75% 1.75% 2.00% 0.50%
II > or = 2.50x 2.50% 2.50% 2.75% 1.50% 1.50% 1.75% 0.50%
< 3.00x
III > or = 2.00x 2.25% 2.50% 2.75% 1.25% 1.50% 1.75% 0.40%
< 2.50x
IV < 2.00x 2.00% 2.50% 2.75% 1.00% 1.50% 1.75% 0.30%
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 I 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 I (it being
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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 officer's certificate); provided
further, that subject to Section 2.8(c), Level I 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 II pricing shall apply for the period from the Second 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 J, 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 in New York,
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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 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
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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 First 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).
"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 Facility A Commitment, the Term Facility B Commitment, or
the Revolving Loan Commitment).
"Commitment Fee" has the meaning given in Section 4.1(a).
"Commitment Fee Rate" has the meaning given in the definition of
"Applicable Margin".
"Company" means (i) before the consummation of the OneSource
Acquisition, the Borrower or any Subsidiary of the Borrower other than the
Acquisition Subsidiary and the Target Companies, and "Companies" means the
Borrower and all of its Subsidiaries other than the Acquisition Subsidiary
and the Target Companies, and (ii) after the consummation of the OneSource
Acquisition, the Borrower or any
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Subsidiary of the Borrower including the Acquisition Subsidiary and the
Target Companies, and "Companies" means the Borrower and all of its
Subsidiaries including the Acquisition Subsidiary and the Target
Companies.
"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 (without duplication):
(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 the OneSource Acquisition and 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
(G) accounting adjustments relating to the treatment of
deferred revenue of the Target, 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.
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"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.
"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, 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.
"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
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other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (x) for the purchase or payment of any such
primary obligation or (y) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of
the primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the holder
of such primary obligation against loss in respect thereof; provided,
however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation is made
or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
"Continuing Directors" means the directors of the Borrower on the
First 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 6.18.
"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.
"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.
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"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 First 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 First
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 6.8(a).
"Employment Agreements" has the meaning given in Section 6.8(c).
"End Date" means, for any Margin Reduction Period, the last day of
such Margin Reduction Period.
"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,
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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 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 Rate = Eurodollar Base Rate
------------------------------------- + Applicable Margin
100% - Eurodollar Reserve Percentage
infoUSA Amended and Restated Credit Agreement
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"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.
"Excess Cash Flow" means, with respect to any fiscal year,
Consolidated EBITDA during that period, less the sum of the following to
the extent they occur during that period:
(i) all cash payments of interest (including, for the
avoidance of doubt, the interest component of Capitalized Lease
Obligations) paid or required to be paid by the Companies and
including and adjusted for the net effect of swap, interest hedging
or similar arrangements,
(ii) all scheduled cash payments of principal (including, for
the avoidance of doubt, the principal component of Capitalized Lease
Obligations) required to be made by the Companies with respect to
any Indebtedness of the Companies (provided no Company has defaulted
on any such payment),
(iii) all payments in cash (other than scheduled payments and
mandatory prepayments) of the principal amount of the Term Loans,
(iv) all unfinanced Consolidated Capital Expenditures made in
cash,
(v) cash taxes paid or required to be paid by the Companies,
(vi) fees, costs and expenses incurred in connection with the
closing of this Agreement, the Old Credit Agreement, the OneSource
Acquisition and other Permitted Acquisitions, to the extent, if any,
such fees, costs and expenses must be paid in cash and are not paid
with the proceeds of a Loan, and
(vii) cash paid for Permitted Acquisitions to the extent not
financed.
"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
infoUSA Amended and Restated Credit Agreement
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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.
"First Closing Date" means March 25, 2004.
"Foreign Pension Plan" means any plan, fund (including, without
limitation, any superannuation fund) or other similar program established
or 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., DBA FL Inc.,
American Business Lists, Inc., American Business Travels, Inc. and
Financial Communications Network, Inc.
infoUSA Amended and Restated Credit Agreement
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"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 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.
"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
K 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.
infoUSA Amended and Restated Credit Agreement
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"Investments" has the meaning given in Section 10.5.
"Issuing Lender" means Wells Fargo.
"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(d) or 2.1(g) or Article III.
"Letter of Credit" shall have the meaning provided in Section
3.1(b).
"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.
"Mandatory Borrowing" shall have the meaning provided in Section
2.1(g).
infoUSA Amended and Restated Credit Agreement
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"Mandatory Prepayment" shall have the meaning provided in Section
5.4.
"Margin Reduction Period" means each period which shall commence on
the date occurring after the Second 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 Facility A Maturity Date, the Term
Facility B 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.
"Net Debt Proceeds" means, with respect to any incurrence of
Indebtedness for borrowed money, the cash proceeds (net of underwriting
discounts and
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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 Rapp,
or such other office or person as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.
infoUSA Amended and Restated Credit Agreement
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"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.
"OneSource Acquisition" means the acquisition by a tender offer for
not less than 51% of the shares, followed by the merger, of the Target
with the Acquisition Subsidiary; it being understood that consummation of
such acquisition shall occur at the time of the merger.
"OneSource Acquisition Documents" means all material documents
executed and delivered by Acquisition Subsidiary, the Borrower and the
Target in connection with the OneSource Acquisition, including the
Agreement and Plan of Merger by and among such parties dated as of April
29, 2004.
"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
infoUSA Amended and Restated Credit Agreement
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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 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
infoUSA Amended and Restated Credit Agreement
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plan for the six year period immediately following the latest date on
which the 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 dated as of the First
Closing Date by the Credit Parties in favor of the Collateral Agent, as
amended by the Reaffirmation Agreement.
"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, $250,000,000 Senior Secured Credit
Facilities Confidential Information Memorandum, May 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 First 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.
"Reaffirmation Agreement" means the Reaffirmation of and First
Amendment to Subsidiaries Guaranty, Security Agreement and Pledge
Agreement by and among the Companies and the Administrative Agent, of even
date herewith.
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"Real Property" of any Person means all the right, title and
interest of such Person in and to land, improvements and fixtures,
including Leaseholds.
"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 13.15.
"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 to Sections 10.3(c), (d), (e) and (f), and (ii) any and all
payments ("earnout payments") required
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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(d).
"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).
"Second Closing Date" means the date all conditions set forth in
Article VI are satisfied.
"Section 5.7(b)(ii) Certificate" shall have the meaning provided in
Section 5.7(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 dated as of the First
Closing Date, as amended by the Reaffirmation Agreement.
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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 6.8(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 Subsidiaries Guaranty dated as of
the First Closing Date by the Subsidiary Guarantors in favor of the
Administrative Agent, as amended by the Reaffirmation Agreement.
"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 (i) before the consummation of the
OneSource Acquisition, each Domestic Subsidiary of the Borrower (other
than an Inactive Subsidiary, the Acquisition Subsidiary or the Target
Companies) and, to the extent required by Section 9.13, each Foreign
Subsidiary of the Borrower, but not any Target Company, and (ii) after the
consummation of the OneSource Acquisition, each Domestic Subsidiary of the
Borrower including the Acquisition Subsidiary and the Target Companies
(other than an Inactive Subsidiary) and, to the extent required by Section
9.13, each Foreign Subsidiary of the Borrower including any applicable
Target Company.
"Swingline Expiry Date" means that date which is five Business Days
prior to the Revolving Loan Maturity Date.
"Swingline Lender" means Wells Fargo.
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"Swingline Loan" shall have the meaning provided in Section 2.1(f).
"Swingline Note" shall have the meaning provided in Section 2.5(a).
"Target" means OneSource Information Services, Inc., a Delaware
corporation.
"Target Companies" means the Target and each of its Subsidiaries,
and "Target Company" means any of them.
"Taxes" shall have the meaning provided in Section 5.7(a).
"Term Loan" means a Term Facility A Loan or a Term Facility B Loan.
"Term Facility A Loan" shall have the meaning provided in Section
2.1(a).
"Term Facility A Commitment" means, (i) for each applicable 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 such Lenders, $120,000,000.
"Term Facility A Maturity Date" means March 25, 2009.
"Term Facility A Scheduled Repayment" shall have the meaning
provided in Section 5.3(a).
"Term Facility A Note" shall have the meaning provided in Section
2.5(a).
"Term Facility B Commitment" means, (i) for each applicable 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 such Lenders, $80,000,000.
"Term Facility B Loan" shall have the meaning provided in Section
2.1(b).
"Term Facility B Maturity Date" means June 4, 2010.
"Term Facility B Note" shall have the meaning provided in Section
2.5(a).
"Term Facility B Scheduled Repayment" shall have the meaning
provided in Section 5.3(b).
"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.
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"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(b)(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 Facility A Commitment" means, at any time, the sum of
the Term Facility A Commitments of each of the applicable Lenders.
"Total Term Facility B Commitment" means, at any time, the sum of
the Term Facility B Commitments of each of the applicable Lenders.
"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 four separate Tranches, i.e., Term
Facility A Loans, Term Facility B 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.
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"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.
"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
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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 FACILITY A. On the First Closing Date, certain Lenders made
term loans (each a "Term Facility A Loan" and, collectively, the "Term
Facility A Loans") to the Borrower, which Term Facility A 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 Term Facility A Loans comprising the same
Borrowing shall at all times be of the same Type, and
(ii) once repaid, may not be reborrowed.
(b) TERM FACILITY B. Subject to and upon the terms and conditions
set forth herein, each Lender with a Term Facility B Commitment severally
agrees to make a term loan (each a "Term Facility B Loan" and,
collectively, the "Term Facility B Loans") to the Borrower, which Term
Facility B Loans:
(i) shall be incurred on the Second Closing Date,
(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 Facility B Loans comprising the same
Borrowing shall at all times be of the same Type, and
(iii) once repaid, may not be reborrowed.
(c) EXISTING REVOLVING LOANS. Under the Old Credit Agreement, the RL
Lenders made various revolving loans to the Borrower (the "Existing
Revolving Loans"). From and after the Second Closing Date, the Existing
Revolving Loans shall be deemed to be Revolving Loans made under this
Agreement.
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(d) 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 Second
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.
(e) EXISTING SWINGLINE LOANS. Under the Old Credit Agreement, the
Swingline Lender has made various revolving loans to the Borrower (the
"Existing Swingline Loans"). From and after the Second Closing Date, the
Existing Swingline Loans shall be deemed to be Swingline Loans made under
this Agreement.
(f) 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 on or after the Second 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,
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(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(f),
(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.
(g) 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 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,
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(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 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
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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
Facility A Loans, Term Facility B 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(g), 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(g).
(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 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
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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.
(a) TIME OF DISBURSEMENT BY LENDERS TO AGENT. 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(g)), 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.
(b) ASSUMPTIONS REGARDING FUNDING BY 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.
(c) REMEDIES IF LENDER DOES NOT FUND. If a Lender fails to make
available to the Administrative Agent any amount it is required to fund,
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
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rights which the Borrower may have against any Lender as a result of any
failure by such Lender to make Loans hereunder.
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 13.15 and shall, if requested by such Lender, also be evidenced
(i) if Term Facility A 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
Facility A Note" and, collectively, the "Term Facility A Notes"), (ii) if
Term Facility B 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 "Term Facility B
Note" and, collectively, the "Term Facility B Notes"), (iii) if Revolving
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 (each a "Revolving Note" and,
collectively, the "Revolving Notes"), and (iv) if Swingline Loans, by a
promissory note duly executed and delivered by the Borrower substantially
in the form of Exhibit E, with blanks appropriately completed in
conformity herewith (the "Swingline Note").
(b) TERM FACILITY A NOTES. The Term Facility A Note issued to any
Lender that has a Term Facility A Commitment or outstanding Term Facility
A Loans shall (i) be executed by the Borrower, (ii) be payable to such
Lender or its registered assigns and be dated the First Closing Date (or,
if issued after the First Closing Date, be dated the date of issuance
thereof), (iii) be in a stated principal amount equal to the outstanding
principal amount of Term Facility A Loans of such Lender and be payable in
the outstanding principal amount of the Term Facility A Loans evidenced
thereby, (iv) mature on the Term Facility A 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) TERM FACILITY B NOTES. The Term Facility B Note issued to any
Lender that has a Term Facility B Commitment or outstanding Term Facility
B Loans shall (i) be executed by the Borrower, (ii) be payable to such
Lender or its registered assigns and be dated the Second Closing Date (or,
if issued after the Second Closing Date, be dated the date of issuance
thereof), (iii) be in a stated principal amount equal to the outstanding
principal amount of Term Facility B Loans of such Lender and be payable in
the outstanding principal amount of the Term Facility B Loans evidenced
thereby, (iv) mature on the Term Facility B Maturity Date, (v) bear
interest as provided in Section 2.8 in respect of the Base Rate Loans and
Eurodollar Loans, as
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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.
(d) REVOLVING NOTES. The Revolving Note issued to any RL Lender
shall (i) be executed by the Borrower, (ii) be payable to such RL Lender
or its registered assigns and be dated the First Closing Date (or, if
issued after the First 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 RL Lender (or, if issued after the termination
thereof, be in a stated principal amount equal to the outstanding
Revolving Loans of such RL 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.
(e) 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 First 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.
(f) 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,
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(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 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 Facility A Commitments, Term Facility B 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.
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(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 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
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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;
(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(a),
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
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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 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
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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 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
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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).
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 5.7 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 5.7.
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 5.7
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
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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
(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, 5.7, 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
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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) EXISTING LETTERS OF CREDIT. Under the Old Credit Agreement, the
Issuing Lender issued various letters of credit for the benefit of the
Companies (the "Existing Letters of Credit"). From and after the Second
Closing Date, the Existing Letters of Credit shall be deemed to be Letters
of Credit issued under this Agreement.
(b) 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 Second
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
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.
(c) 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 Second 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
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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
(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 F, 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
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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.
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
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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 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
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shall be irrevocable and not subject to any qualification or exception
whatsoever and shall be made in accordance with the terms and conditions
of this Agreement under all circumstances, including, without limitation,
any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower or any of its Subsidiaries may have at any
time against a beneficiary named in a Letter of Credit, any
transferee of any Letter of Credit (or any Person for whom any such
transferee may be acting), the Administrative Agent, any
Participant, or any other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying
transaction between the Borrower or any Subsidiary of the Borrower
and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
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
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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
(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
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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.
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 First 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
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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 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) TERM FACILITY A. The Total Term Facility A Commitment (and the
Term Facility A Commitment of each Lender) terminated on the First Closing
Date.
(b) TERM FACILITY B. The Total Term Facility B Commitment (and the
Term Facility B Commitment of each Lender) shall terminate in full on the
Second Closing Date immediately following the making of the Term Facility
B Loans.
(c) REVOLVING FACILITY. 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
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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.
(d) OTHER REDUCTIONS OF REVOLVING FACILITY COMMITMENT. In addition
to any other mandatory commitment reductions pursuant to this Section 4.3,
on each date after the Second Closing Date upon which a Mandatory
Prepayment is required under Sections 5.4 and 5.5 and the amount thereof
exceeds the aggregate principal amount of Term Loans 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 exceeds the aggregate principal amount of Term Loans then
outstanding.
Comment 1. How should this section work if term loan payments are refused?
(e) APPLICATION OF REDUCTIONS. Each reduction and/or termination to
the Total Term Facility A Commitment, Total Term Facility B Commitment,
and the Total Revolving Loan Commitment shall be applied to
proportionately reduce and/or terminate the applicable Commitment of each
applicable Lender.
ARTICLE V
PREPAYMENTS; PAYMENTS; TAXES.
Section 5.1 Voluntary Prepayments. 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:
(a) the Borrower shall give the Administrative Agent prior to 11:00
A.M. at the Notice Office (i) 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 (ii) 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 Facility A Loans, Term Facility B 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;
(b) each partial prepayment pursuant to this Section 5.1 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
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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;
(c) each prepayment pursuant to this Section 5.1 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, 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
(d) each prepayment of Term Loans pursuant to this Section 5.1 shall
be applied to reduce the then remaining Term Facility A Scheduled
Repayments or Term Facility B Scheduled Repayments, as applicable, in the
inverse order of maturity.
Section 5.2 Mandatory Prepayment of Revolving Facility. 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.
Section 5.3 Term Facility Scheduled Repayment Dates.
(a) TERM FACILITY A SCHEDULED REPAYMENT. In addition to any other
mandatory repayments pursuant to Sections 5.4 and 5.5, on each date set
forth below, the Borrower shall be required to repay that principal amount
of Term Facility A 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, 5.4 and 5.5, a "Term Facility A
Scheduled Repayment"):
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TERM FACILITY A
SCHEDULED REPAYMENT DATE AMOUNT
- ------------------------------------- -----------
(i) the last Business Day of the $ 5,000,000
calendar quarter ending June 30,
2004, and the last Business Day
of each calendar quarter
thereafter to and including the
calendar quarter ending March
31, 2005
(ii) the last Business Day of the $6,250,000
calendar quarter ending June 30,
2005, and the last Business Day
of each calendar quarter
thereafter to and including the
calendar quarter ending December
31, 2008
(iii) on the Term Facility A Maturity
Date all remaining principal
(b) TERM FACILITY B SCHEDULED REPAYMENT. In addition to any other
mandatory repayments pursuant to this Sections 5.4 and 5.5, on each date
set forth below, the Borrower shall be required to repay that principal
amount of Term Facility B 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, 5.4 and 5.5, a "Term Facility B
Scheduled Repayment"):
TERM FACILITY B
SCHEDULED REPAYMENT DATE AMOUNT
- -------------------------------------- ------------------------------------
(i) the last Business Day of the 0.25% of the outstanding principal
calendar quarter ending balance of all Term Facility B Loans
September 30, 2004, and the on the Second Closing Date
last Business Day of each
calendar quarter thereafter to
and including the calendar
quarter ending March 31, 2010
all remaining principal
(ii) on the Term Facility B Maturity
Date
Section 5.4 Mandatory Prepayment of Term Loans. The Borrower shall
prepay the Term Loans in accordance with Section 5.5 upon the occurrence of any
of the following events on or after the Second Closing Date (any such payment, a
"Mandatory Prepayment"):
(a) EQUITY ISSUANCE. On each 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
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the Borrower or another Subsidiary of the Borrower), the Borrower shall
pay to the Agent for application to the Term Loans an amount equal to 50%
of the Net Equity Proceeds of such capital contribution or sale or
issuance of equity
(b) DEBT ISSUANCE. On each date upon which the Borrower or any of
its Subsidiaries receives any cash proceeds from any Indebtedness for
borrowed money (other than Indebtedness for borrowed money permitted to be
incurred pursuant to Section 10.4), the Borrower shall pay to the Agent
for application to the Term Loans an amount equal to 100% of the
applicable Net Debt Proceeds.
(c) ASSET SALES. On each date upon which the Borrower or any of its
Subsidiaries receives any cash proceeds from any Asset Sale, the Borrower
shall pay to the Agent for application to the Term Loans an amount equal
to 100% of the Net Sale Proceeds therefrom; provided that:
(i) 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
(ii) 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 of
such period (or such earlier date, as the case may be) as a
mandatory repayment of principal of outstanding Term Loans as
provided in clause (i) above 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 in 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 (c).
(d) RECOVERY EVENT PROCEEDS. Within 10 days following each date upon
which any Company receives any cash proceeds from any Recovery Event
(other than Recovery Events for which the Net Recovery Event Proceeds do
not exceed $100,000), the Borrower shall pay to the Agent for application
to the Term Loans an amount equal to 100% of such Net Recovery Event
Proceeds; provided that:
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(i) 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);
(ii) 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 the Companies in connection
with the replacement or restoration of the applicable 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 Companies have 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
(iii) 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 clause (i) 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 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 in Section 5.5.
(e) EXCESS CASH FLOW RECAPTURE. Until the Borrower's Total Leverage
Ratio is 2.50 to 1 or less for two consecutive quarters, each year, not
later than 15 days after the Borrower's audited financial statements are
due under Section 9.1(c), the Borrower shall pay to the Agent for
application to the Term Loans an amount equal to 50% of Excess Cash Flow.
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Section 5.5 Application of Mandatory Prepayments.
(a) PRO RATA APPLICATION OF MANDATORY PREPAYMENTS. Each Mandatory
Prepayment shall be applied pro-rata to reduce the then remaining Term
Facility A Scheduled Repayments and Term Facility B Scheduled Repayments
in the inverse order of maturity. If all Term Facility A Loans have been
satisfied, the entire amount of Mandatory Prepayments shall be applied to
Term Facility B Scheduled Repayments.
(b) TERM FACILITY B LENDERS' RIGHTS TO REFUSE MANDATORY PREPAYMENTS.
Notwithstanding subsection (a), each Lender holding a Term Facility B
Commitment may, in its sole discretion, elect not to accept any Mandatory
Prepayment. Each such Lender may make such election from time to time by
giving written notice to the Administrative Agent. Each such Lender's
election shall be effective on the Business Day the Administrative Agent
receives the applicable notice, provided that notices received after 10:00
a.m. shall be deemed received on the next Business Day, and shall remain
effective until revoked by written notice to the Administrative Agent. The
amount of any Mandatory Prepayments that any Lender holding a Term
Facility B Commitment elects not to receive ("Refused Payment Amount")
shall be added to the amount to be distributed to Lenders holding Term
Facility A Commitments, provided that if all Term Facility A Loans have
been satisfied, the Borrower may retain the Refused Payment Amount.
(c) APPLICATIONS TO TYPES OF LOANS. The Borrower may designate the
Types of Loans which are to be repaid and, in the case of Eurodollar
Loans, the specific Borrowing or Borrowings pursuant to which made,
provided that:
(i) repayments of Eurodollar Loans may only be made on the
last day of an Interest Period applicable thereto unless all
Eurodollar Loans of the applicable Tranche with Interest Periods
ending on such date of required repayment and all Base Rate Loans of
the applicable 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, except as provided in
Subsection (b).
In the absence of a designation by the Borrower as described in this
Subsection (c), the Administrative Agent shall, subject to the above, make
such designation in its sole discretion.
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(d) 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(c)),
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.
(e) 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 5.6 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 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 5.7 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 5.7(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
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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.
(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 Second 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 G (any such certificate, a "Section
5.7(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 Second 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
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portfolio interest exemption) and a Section 5.7(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 5.7(b).
(c) BORROWER'S RIGHT TO WITHHOLD TAXES. Notwithstanding anything to
the contrary contained in Section 5.7(a), but subject to Sections 5.7(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 deduction or withholding and (ii)
the Borrower shall not be obligated pursuant to Section 5.7(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 5.7(b) or (B) in the case of a payment, other
than interest, to a Lender described in Section 5.7(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 5.7 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 5.7(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 First 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 Second Closing Date. This Agreement shall become
effective as of the date (the "Second Closing Date") on which each of the
following conditions shall have been satisfied:
(a) the Borrower and the Administrative Agent shall have signed a
counterpart hereof (whether the same or different counterparts) and shall
have
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delivered the same to the Administrative Agent at the Notice Office, and
the Lenders shall have consented to the form of this Agreement, 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 Second
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
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 Second 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 6.9, 6.10, 6.11 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 Second Closing Date in
such form and covering such matters as the Administrative Agent may reasonably
request.
Section 6.5 OneSource Acquisition.
(a) The Borrower shall deliver to the Administrative Agent copies of
the OneSource Acquisition Documents.
(b) At least 51% of the common stock of the Target shall have been
validly tendered pursuant to the tender offer dated as of May 6, 2004 and
not withdrawn.
(c) All aspects of the OneSource Acquisition shall be consummated in
accordance with the OneSource Acquisition Documents and no provision
thereof shall have been amended, supplemented, waived or otherwise
modified in any
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material respect without the prior written consent of the Administrative
Agent and Lenders.
(d) The Lenders shall have received the unaudited financial
statements of the Target Companies dated March 31, 2004.
(e) The Lenders shall have received a final statement of sources and
uses of funds regarding the OneSource Acquisition.
(f) The Lenders shall have received the final projected financial
statements (including balance sheets and statements of operations,
stockholders' equity and cash flow) of the Companies for the six-year
period after the Second Closing Date.
(g) The Lenders shall have received a pro forma opening balance
sheet for Companies as of the Second Closing Date after giving effect to
the OneSource Acquisition and the funding of the initial Term Facility B
Loan.
(h) The Lenders shall have received evidence that the Target has
satisfied all obligations owed to, and terminated its credit relationship
with, Silicon Valley National Bank and that such creditor has terminated
or authorized the Borrower or the Administrative Agent to terminate any
UCC financing statements.
Section 6.6 Closing Leverage Ratio. The Borrower's Closing Leverage
Ratio shall be not greater than 3.00 to 1.0 on the Second Closing Date. For the
purposes of this Section,
(a) "Closing Leverage Ratio" means the ratio of Total Funded Debt on
the Second Closing Date to Combined EBITDA;
(b) "Total Funded Debt" on the Second Closing Date means Total
Funded Debt of the Borrower minus all cash of Target greater than
$3,000,000,
(c) "Combined EBITDA" means the Consolidated EBITDA of the Borrower
and the Target, and
(d) it shall be assumed that (i) 100% of the Target's shares have
been tendered, (ii) the entire purchase price for the Target's stock (and
all Term Facility B Loans) has been funded, including all costs associated
with the OneSource Acquisition such as breakup and underwriting fees and
fees associated with repayment of the Target's indebtedness
Section 6.7 Corporate Documents; Proceedings; etc.
(a) The Borrower shall cause the Administrative Agent to receive a
certificate from each Credit Party, dated the Second Closing Date, signed
by the Secretary or any Assistant Secretary of such Credit Party, in the
form of Exhibit H with appropriate insertions, together with copies of the
certificate of incorporation and
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by-laws (or equivalent organizational documents) of such Credit Party if
not delivered pursuant to the Old Credit Agreement, 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 the OneSource Acquisition Documents, 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 6.8 Plans; Shareholders' Agreements; Employment Agreements.
The Borrower shall cause the Administrative Agent to receive true and correct
copies of the following documents or shall certify that no modifications have
been made thereto since the First Closing Date:
(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 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 Second Closing Date.
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Section 6.9 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 6.10 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 OneSource Acquisition Documents, 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.
Section 6.11 Litigation. There shall be no actions, suits or
proceedings pending or threatened (i) with respect to the OneSource Acquisition,
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 6.12 Reaffirmation Agreement. Each Credit Party other than
Target and the Acquisition Subsidiary shall have duly authorized, executed and
delivered to the Collateral Agent, the Reaffirmation Agreement.
Section 6.13 Mortgage Amendments. The Borrower shall have duly
authorized, executed and delivered amendments in appropriate form for recording,
with respect to the Mortgages encumbering the properties located in Omaha,
Nebraska, Carter Lake, Iowa and Marshfield, Wisconsin, providing that each such
Mortgage shall secure payment of all of the Loans, 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 such
amendments;
(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
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insure, in the case of a binder) that the Mortgage, as amended, 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;
(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 Mortgages;
(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) 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 the amendments to the Mortgages or the
issuance of the title insurance policies (whether due on the Second
Closing Date or in the future) including sums due in connection with any
future advances;
(f) 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
(g) 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 6.14 Evidence of Perfection, etc. The Administrative Agent
shall have received the following:
(a) evidence that financing statements naming each Credit Party
other than Target and the Acquisition Subsidiary 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 or before the consummation of the
OneSource Acquisition;
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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 6.15 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 6.16 Financial Statements; Projections. The Administrative
Agent shall have received true and correct copies of (i) the financial
statements referred to in Sections 8.5(a) and (b), and (ii) the Projections
referred to in Sections 8.5(e), all of which financial statements and
Projections shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Required Lenders.
Section 6.17 Solvency Certificate; Insurance Certificates. On or
prior to the Second Closing Date, the Administrative Agent shall have received
the following dated the Second Closing Date:
(a) a solvency certificate from the chief financial officer of the
Borrower in the form of Exhibit I; and
(b) certificates of insurance complying with the requirements of
Section 9.3 for the business and properties of the Companies, 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 6.18 Rating. The Lenders shall have received evidence that
S&P and Moody's have reviewed the proforma combined financial statements of the
Borrower and the Target (after giving effect to the consummation of the
OneSource Acquisition) and assigned a rating.
Section 6.19 Market Disruption. There shall not exist any material
disruption or material adverse change in the financial or capital markets
generally or for the Credit Parties in particular or in the market for
syndicated credit facilities that could in the good faith judgment of the Lead
Arranger be expected to materially adversely affect the syndication of the
credit facilities.
Section 6.20 Fees, etc. On or prior to the Second Closing Date, the
Borrower shall have paid to the Administrative Agent as arranger ("Arranger")
all costs, fees and
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expenses (including, without limitation, legal fees and expenses) payable to the
Administrative Agent and the Arranger to the extent then due.
ARTICLE VII
CONDITIONS PRECEDENT TO ALL CREDIT EVENTS.
The obligation of each Lender to make Loans (including Loans made on
the Second 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 Minimum Liquidity. Until the consummation of the merger
with the Target, after giving effect to any requested Loan, the sum of the
amount available to be drawn on the Revolving Facility plus cash at the Target
shall be not less than $25,000,000.
Section 7.3 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 Second Closing Date) and in this Article VII (with respect
to Credit Events on or after the Second 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
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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.
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
Second 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 Second 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, and to the
Borrower's knowledge as of the Second Closing Date, each Target 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
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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 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 Second Closing Date and which remain in full force and effect on the
Second 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) FINANCIAL STATEMENTS OF BORROWER.
(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 were furnished to
the Lenders prior to the First 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) The unaudited consolidated balance sheets of the Borrower
for its fiscal quarter ended March 31, 2004, and the related
unaudited consolidated statements of income, cash flows and
shareholders' equity of the Borrower for such fiscal quarter, copies
of which were furnished to the Lenders prior to the Second Closing
Date, present fairly in all material respects the consolidated
financial position of the Borrower at the date of such balance sheet
and the consolidated results of the operations of the Borrower for
the period covered
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thereby. All of the foregoing financial statements have been
prepared in accordance with GAAP consistently applied.
(iii) Since December 31, 2003, except as disclosed in the
Borrower's SEC filings, 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) FINANCIAL STATEMENTS OF TARGET. To the Borrower's knowledge:
(i) The audited consolidated balance sheets of the Target 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 Target for the fiscal years ended on
such dates, as the case may be, copies of which were furnished to
the Lenders prior to the Second Closing Date, present fairly in all
material respects the consolidated financial position of the Target
at the dates of such balance sheets and the consolidated results of
the operations of the Target for the periods covered thereby. All of
the foregoing financial statements have been prepared in accordance
with GAAP consistently applied.
(ii) The unaudited consolidated balance sheets of the Target
for its fiscal quarter ended March 31, 2004, and the related
unaudited consolidated statements of income, cash flows and
shareholders' equity of the Target for such fiscal quarter, copies
of which were furnished to the Lenders prior to the Second Closing
Date, present fairly in all material respects the consolidated
financial position of the Target at the date of such balance sheet
and the consolidated results of the operations of the Target for the
period covered thereby. All of the foregoing financial statements
have been prepared in accordance with GAAP consistently applied.
(iii) Since December 31, 2003, except as disclosed in the
Target's SEC filings, 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.
(c) SOLVENCY. On and as of the Second 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 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
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Section 8.5(c), "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.
(d) NO OTHER LIABILITIES. Except as fully disclosed in the financial
statements delivered pursuant to Section 8.5(a), and, to the Borrower's
knowledge as of the Second Closing Date with respect to the financial
statements delivered pursuant to Section 8.5(b), there were as of the
Second Closing Date no liabilities or obligations with respect to any
Company or Target 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, or the Target Companies taken
as a whole. As of the Second Closing Date, the Borrower does not know of
any basis for the assertion against any Company or Target Company of any
liability or obligation of any nature whatsoever that is not fully
disclosed in the financial statements delivered pursuant to Sections
8.5(a) and (b) which, either individually or in the aggregate, could
reasonably be expected to be material to the Companies taken as a whole or
the Target Companies taken as a whole.
(e) PROJECTIONS. On and as of the Second Closing Date, the
Projections delivered to the Administrative Agent and the Lenders prior to
the Second 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 Second 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 knowledge of the Borrower, threatened (i) with respect to any
Credit Documents, (ii) with respect to any material Indebtedness of any Company
or Target Company or (iii) that are, either individually or in the aggregate,
reasonably likely to have a Material Adverse Effect.
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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 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; Margin Regulations.
(a) USE OF PROCEEDS. 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
including the OneSource Acquisition, (iv) to finance Restricted Payments,
and (v) for other lawful corporate purposes. Any proceeds of Term Facility
B Loans not used immediately upon receipt to purchase shares of the Target
shall be deposited to a separate deposit account of the Borrower,
maintained with the Agent, to be withdrawn from time to time by the
Borrower to purchase shares of the Target and for related expenses of the
OneSource Acquisition.
(b) 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, and to the
Borrower's knowledge as of the Second Closing Date each Target 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 or Target
Companies in accordance with GAAP. Each Company, and to the Borrower's knowledge
as of the Second Closing Date each Target Company, has at all times paid, or has
provided adequate reserves (in the good faith judgment of the management of the
applicable Person) 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
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the aggregate could reasonably be expected to result in a material liability to
any Company. To the Borrower's knowledge as of the Second Closing Date, there is
no action, suit, proceeding, investigation, audit, or claim now pending or
threatened, by any authority regarding any taxes relating to any Target Company
that either individually or in the aggregate could reasonably be expected to
result in a material liability to any Target Company.
Section 8.10 Compliance with ERISA.
(a) DOMESTIC PLANS. Schedule 2 of the Disclosure Letter sets forth,
as of the Second 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
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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 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.
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(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 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 Second 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 on the
Second Closing Date, by any Company, and to the Borrower's knowledge, by any
Target Company, and the nature of the interest therein, is correctly set forth
on Schedule 1 of the Disclosure Letter. Each Company, and to the Borrower's
knowledge, each Target Company, 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) or of the Target referred to in Section
8.5(b) (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 Second 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 Second
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 Second Closing Date, the
Borrower has no Subsidiaries other than those Subsidiaries listed on Schedule 3
of the Disclosure Letter.
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Schedule 3 of the Disclosure Letter correctly sets forth, as of the Second
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. As of the Second Closing Date, to the
Borrower's knowledge, the Target has no Subsidiaries other than those
Subsidiaries listed on Schedule 3 of the Disclosure Letter and Schedule 3 of the
Disclosure Letter correctly sets forth, as of the Second Closing Date, (i) the
percentage ownership (direct or indirect) of the Target 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 Company, and, to
the knowledge of the Borrower, as of the Second Closing Date, each Target
Company, is in compliance with all applicable statutes, regulations and orders
of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property (including, 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. No Company, and, to the
knowledge of the Borrower, as of the Second Closing Date, no Target Company, 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. No Company, and, to
the knowledge of the Borrower as of the Second Closing Date, no Target Company,
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 Company, and, to the knowledge of the Borrower as of the
Second Closing Date, each Target Company, 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 any Company or
Target Company or any Real Property presently or formerly owned, leased or
operated by any Company or Target Company. There are no facts,
circumstances, conditions or occurrences with respect to the business or
operations of the Companies, or to the knowledge of the Borrower as of the
Second Closing Date, with respect to any Target Company, or any Real
Property presently or formerly owned, leased or operated by any Company,
or to the knowledge of the Borrower as of the Second Closing Date, by any
Target Company, or, to the knowledge of the Borrower, any property
adjoining or adjacent to
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any such Real Property that could be reasonably expected (i) to form the
basis of an Environmental Claim against any Company or Target Company or
any Real Property presently or formerly owned, leased or operated by any
Company or Target Company or (ii) to cause any such Real Property to be
subject to any restrictions on the ownership, lease, occupancy or
transferability of such Real Property 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 any Company, or to the knowledge of the Borrower as
of the Second Closing Date, by any Target Company, 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 have not at any time been
Released on or from any Real Property owned, leased or operated by any
Company, or to the knowledge of the Borrower as of the Second Closing
Date, by any Target Company, 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. No Company, and, to the knowledge of
the Borrower as of the Second Closing Date, no Target Company, 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 (a) no unfair
labor practice complaint before the National Labor Relations Board (i) pending
against any Company, or to the knowledge of the Borrower as of the Second
Closing Date, against any Target Company, (ii) to the knowledge of the Borrower,
no such complaint is threatened against any Company or Target Company, and (b)
no grievance or arbitration proceeding arising out of or under any collective
bargaining agreement (i) pending against any Company, or to the knowledge of the
Borrower as of the Second Closing Date, against any Target Company, (ii) to the
knowledge of the Borrower, no such complaint is threatened against any Company
or Target Company, (c) no strike, labor dispute, slowdown or stoppage pending
against any Company, or to the knowledge of the Borrower as of the Second
Closing Date, against any Target Company, and (d) no union representation
question exists with respect to the employees of any Company, or to the
knowledge of the Borrower as of the Second Closing Date, against any Target
Company, except (with respect to any matter specified in clauses (a), (b), (c)
or (d) 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
Company owns or has the right to use, and, to the knowledge of the Borrower as
of the Second Closing
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Date, each Target Company 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, and, to the knowledge of the Borrower
as of the Second Closing Date, each Target Company, as of the Second Closing
Date and which is to remain outstanding (excluding the Loans and the Letters of
Credit, the "Existing Indebtedness"), in each case showing the aggregate
principal amount thereof and the name of the respective borrower and any Credit
Party or any of its Subsidiaries which directly or indirectly guarantees such
debt.
Section 8.23 Insurance. Schedule 5 of the Disclosure Letter sets
forth a true and complete listing of all insurance maintained by the Companies,
and, to the knowledge of the Borrower as of the Second Closing Date, by each
Target Company, as of the Second 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
Second 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 13.13 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, 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
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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, (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 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
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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 M, 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(c),
5.2(d), 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 on June 30, 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 any Company or Target Company which could reasonably
be expected to have a Material Adverse Effect, (y) with respect to any
material Indebtedness of the Companies or Target Companies 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 any Company or Target Company 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 any
Company or Target Company or any Real Property owned, leased or
operated by any Company or any Target Company;
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(ii) any condition or occurrence on or arising from any Real
Property owned, leased or operated by any Company or any Target
Company that (a) results in noncompliance by any Company or any
Target Company with any applicable Environmental Law or (b) could be
expected to form the basis of an Environmental Claim against any
Company or any Target Company or any such Real Property;
(iii) any condition or occurrence on any Real Property owned,
leased or operated by any Company or any Target Company that could
be expected to cause such Real Property to be subject to any
restrictions on the ownership, lease, occupancy, use or
transferability by any Company or any Target Company 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 any Company or any Target
Company as required by any Environmental Law or any governmental or
other administrative agency; provided that in any event the Borrower
shall deliver to each Lender all notices received by any Company or
any Target Company from any government or governmental agency under,
or pursuant to, CERCLA which identify any Company or any Target
Company as potentially responsible parties for redemption costs or
which otherwise notify any Company or any Target Company 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 Company's or Target Company's response thereto.
(j) OTHER INFORMATION. From time to time, such other information or
documents (financial or otherwise) with respect to any Company or any
Target Company 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 Company and Target
Company 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 Company
and Target Company to, permit officers and designated representatives of
the Administrative Agent or any Lender to visit and inspect, under
guidance of officers of the applicable Company or Target Company, any of
the properties of any Company or Target Company, and to examine the books
of account of any Company or Target Company and discuss the affairs,
finances and accounts of
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that Company or Target Company 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.
Section 9.3 Maintenance of Property; Insurance.
(a) The Borrower will, and will cause each Company and Target
Company to, (i) keep all material property necessary to the business of
the Companies and Target 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 Companies and Target Companies operate, 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 Credit Party 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 any Credit Party)
(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 any Credit Party shall fail to insure its property in
accordance with this Section 9.3, or if any Credit Party shall fail to so
endorse and deposit all policies
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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
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.
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(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 Administrative Agent may order the same, the cost of which shall be
borne by the Borrower and the Borrower shall grant and hereby grants to
the Administrative Agent and the Lenders and their respective agents
access to such Real Property and specifically grants the Administrative
Agent and the Lenders an irrevocable non-exclusive license, subject to the
rights of tenants, to undertake such an assessment 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,
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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 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.
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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 Subsidiary Guarantor 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 be 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. Without limiting the
generality of the foregoing, immediately following the consummation of the
OneSource Acquisition, the Target Companies shall become parties to the
Security Agreement, and the Pledge Agreement.
(b) The Borrower will, and will cause each Subsidiary Guarantor 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
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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.
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
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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.
Section 9.14 Margin Stock. If any Credit Party holds 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) ONESOURCE ACQUISITION. The Lenders authorize the Borrower and
the Acquisition Subsidiary to consummate the OneSource Acquisition in
accordance with the OneSource Acquisition Documents.
(b) 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 in addition to the
OneSource Acquisition, 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;
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(iv) the Net Acquisition Consideration with respect to all
Permitted Acquisitions (in addition to the OneSource Acquisition)
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 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
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board of directors or equivalent governing body of the Acquired
Entity or Business shall have been obtained); and
(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.
(c) 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 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; provided that for the OneSource Acquisition, such pledge shall
occur immediately following the consummation of the OneSource Acquisition.
(d) ADDITIONAL SECURITY DOCUMENTS. 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.
(e) REPRESENTATIONS AND WARRANTIES. The consummation of each
Permitted Acquisition other than the OneSource Acquisition shall be deemed
to be a representation and warranty by the Borrower that the
certifications by the Borrower pursuant to Section 9.15(b) 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.
(f) WORKING CAPITAL ADJUSTMENTS. In any Permitted Acquisition, other
than the OneSource Acquisition, that involves a working capital
adjustment, Net Acquisition Consideration for the purposes of clauses
(b)(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, other than the OneSource 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
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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
(b)(iii) and (iv) based on such recalculated Net Acquisition
Consideration, and containing the calculations (in reasonable detail)
evidencing compliance with the preceding clauses (b)(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 13.13 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
Company 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
any Company, 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 any Company), or assign any right to receive income or permit the
filing of any financing statement under the UCC or any other similar notice of
Lien under any similar recording or notice statute; provided that the provisions
of this Section 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 any Company 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 (i) which do not in the aggregate
materially detract from the value of any Company's property or assets or
materially impair the use thereof in the operation of the business of any
Company or (ii) 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
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such Liens to the extent set forth on such Schedule 6, provided that (i)
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 (ii) any such renewal,
replacement or extension does not encumber any additional assets or
properties of any Company;
(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 any Company;
(f) Liens upon assets of any Company subject to Capitalized Lease
Obligations to the extent such Capitalized Lease Obligations are permitted
by Section 10.4(d), provided that (i) such Liens only serve to secure the
payment of Indebtedness arising under such Capitalized Lease Obligation
and (ii) the Lien encumbering the asset giving rise to the Capitalized
Lease Obligation does not encumber any other asset of any Company;
(g) Liens placed upon (i) equipment or machinery acquired after the
Second Closing Date and used in the ordinary course of business of the
Companies at the time of the acquisition thereof 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 (ii) Real Property acquired or constructed after the
Second Closing Date and used in the ordinary course of business of the
Companies at the time of the acquisition or construction thereof 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 (A) the Indebtedness secured by all such Liens described in
this Subsection (g) is permitted by Section 10.4(d) and (B) in all events,
the Lien encumbering the asset so acquired or constructed does not
encumber any other asset of any Company;
(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 any Company;
(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 Companies 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
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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 any Company 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
Subsection (m) shall not at any time exceed $1,500,000;
(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 Sections
10.1(f) and (g) by any Company, the Administrative Agent and the Collateral
Agent shall be authorized to take any actions deemed appropriate by it in
connection therewith (including, without limitation,
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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 Company 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:
(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 (i) no Default or
Event of Default then exists or would result therefrom, (ii) 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), (iii) 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, (iv)
the Net Sale Proceeds therefrom are applied and/or reinvested as (and to
the extent) required by Section 5.2(c) and (v) the aggregate amount of the
proceeds received from all assets sold pursuant to this Subsection (e)
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;
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(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
(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 (A) such merger or consolidation involving a
Subsidiary Guarantor, a Subsidiary Guarantor is the surviving corporation
of such merger or consolidation or (B) 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 (A) such
merger or consolidation involving a Wholly-Owned Subsidiary of the
Borrower, in addition to the requirements of preceding clause (i)(A), a
Wholly-Owned Subsidiary is the surviving corporation of such merger or
consolidation or (B) such liquidation, in addition to the requirements of
preceding clause (i)(B), 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;
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(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 (c) 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;
(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, (i) no Default or Event of Default shall exist, (ii)
the Consolidated Total Leverage Ratio shall be not more than 2.50 to 1.0,
and (iii) the aggregate amount of all cash Dividends under this Section
10.3(f) shall not exceed (A) $10,000,000 during the first loan year, (B)
$15,000,000 during the second loan year and (C) $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 First Closing
Date.
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 Second 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
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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 Subsection (d) 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;
(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 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 (i)
such Indebtedness was not incurred in connection with, or in anticipation
or contemplation of, such Permitted Acquisition, (ii) 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 (ii), and (iii) at the time of such Permitted
Acquisition, the aggregate of all Indebtedness permitted under this clause
(h) 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 Second
Closing Date;
(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
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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:
(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
Second 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
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Subsidiaries in connection with such officers' or employees' acquisition
of shares of common stock of the Borrower provided, however, that (i) 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 (ii) 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 Credit Parties may make Intercompany Loans between or
among one another, so long as each Intercompany Loan shall be 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
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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 a Credit Party shall contain (and
shall be subject to) the subordination provisions described in Exhibit L;
and
(p) so long as no Default or Event of Default then exists or would
result therefrom, the Companies 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, provided that
the Borrower may reinvest the proceeds of Investments sold during the same
year in which they were purchased.
Section 10.6 Transactions with Affiliates. The Borrower will not,
and will not permit any Company 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:
(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
Companies;
(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 Second 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
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any material respect than the original agreement as in effect on the
Second 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:
CONSOLIDATED TOTAL
PERIOD LEVERAGE RATIO
Second Closing Date through March 31, 2005 3.50 to 1
April 1, 2005 through March 31, 2006 3.00 to 1
April 1, 2006 through March 31, 2007 2.75 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 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 Company 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 Company to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the
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ability of any Company to (a) pay dividends or make any other distributions on
its capital stock or any other interest or participation in its profits owned by
any Company, or pay any Indebtedness owed to any Company, (b) make loans or
advances to any Company or (c) transfer any of its properties or assets to any
Company, except for such encumbrances or restrictions existing under or by
reason of (i) applicable law, (ii) this Agreement and the other Credit
Documents, (iii) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest of any Company, (iv) customary
provisions restricting assignment of any licensing agreement (in which a Company
is the licensee) or other contract entered into by any Company in the ordinary
course of business, (v) 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, (vi) agreements
existing on the First Closing Date to the extent and in the manner such
agreements are in effect on the First Closing Date, (vii) 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 (viii) restrictions on the transfer of any asset subject
to a Lien permitted by Section 10.1(e), (f) or (g).
Section 10.12 Limitation on Issuance of Capital Stock.
(a) The Borrower will not, and will not permit any Company 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 applicable Company.
(b) The Borrower will not permit any Company 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 any Company in any class of
the capital stock of such Company, (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 Company to, engage in any business other than the business engaged in by the
Companies as of the First 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.
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Section 10.14 Limitation on Creation of Subsidiaries. The Borrower
will not, and will not permit any Company to, establish, create or acquire after
the Second 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 Section 9.11(a), 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 as required by Section 9.11(a), 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.
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 $12,000,000 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
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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. Any Company shall (i) default in the due
performance or observance by it of any term, covenant or agreement
contained in Section 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) Any Company shall (A)
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 (B) default in the
observance or performance of any agreement or condition relating to any
Indebtedness (other than the Obligations) or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders)
to cause (determined without regard to whether any notice is required),
any such Indebtedness to become due prior to its stated maturity, or (ii)
any Indebtedness (other than the Obligations) of any Company 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
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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 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 First Closing Date, 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
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(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 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; or
(j) CHANGE OF CONTROL. A Change of Control shall occur.
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,
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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.
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
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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 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.
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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 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
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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.
(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
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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, 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, (i) 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 (ii) 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)).
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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 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
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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 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 AND NON-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
(aa) 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
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Lenders or (bb) 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 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 (such consent not to be unreasonably withheld or delayed)
for any assignment to an Eligible Transferee pursuant to clause (y)
above,
(iii) the consent of the Borrower (such consent not to be
unreasonably withheld or delayed) shall be required for any
assignment to an Eligible Transferee pursuant to clause (y) if and
only if the assignment (A) is to an Eligible Transferee who is not
already a Lender, (B) occurs after the 30th day following the Second
Closing Date, (C) occurs when no Default or Event of Default exists,
and (D) is for more than $5,000,000 of Commitments and related
outstanding Obligations by one Lender to an Eligible Transferee;
(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 13.15.
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)
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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
5.7(b)(ii) Certificate) described in Section 5.7(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 5.7 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 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
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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.
(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
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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 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
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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.
(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. 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 subsections (a) and (h))):
(a) 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
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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 Subsection (a)),
(b) 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,
(c) 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 Second Closing Date),
(d) reduce the percentage specified in the definition of Required
Lenders (it being understood that, with the consent of the Required
Lenders, additional extensions of credit pursuant to this Agreement may be
included in the determination of the Required Lenders on substantially the
same basis as the extensions of Term Loans and Revolving Loan Commitments
are included on the Second Closing Date),
(e) consent to the assignment or transfer by the Borrower of any
of its rights and obligations under this Agreement,
(f) amend Section 2.9 so as to permit Interest Periods that are
greater than six months,
(g) amend Section 13.4(b), or
(h) amend, modify or waive any Term Facility A Scheduled Repayment
or Term Facility B Scheduled Repayment;
provided further, that no such amendment, change, waiver, discharge or
termination shall:
(i) 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),
(j) affect the rights or duties of the Administrative Agent, the
Collateral Agent, the Issuing Lender or the Swingline Lender hereunder or
under any other
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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,
(k) (i) amend, change, modify or waive Section 5.2 or (ii) 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,
(l) amend, change, modify or waive the provisions of Section 5.5,
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 modifications which affect all Lenders ratably shall
not be considered hereunder as affecting Lenders of any Tranche
differently).
Section 13.12 Replacement of Non-Consenting Lender. If any Lender (a
"Non-Consenting Lender") refuses to consent to an amendment to or waiver of any
Credit Document or provision thereof, which amendment or waiver requires
unanimous consent of all the Lenders, or all the Lenders holding a particular
type of Commitment, in order to be effective, then the Administrative Agent may
or the Borrower may (but neither shall be obligated to), upon notice to the
Non-Consenting Lender (and the Administrative Agent, if applicable), require the
Non-Consenting Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in Section 13.4(b)) all of its
interests, rights, duties and obligations under this Agreement and the Loan
Documents to an Eligible Transferee that shall assume such obligations (which
assignee may be a Lender, if a Lender accepts such assignment); provided that
(i) if it is an assignment at the request of the Borrower, the Borrower shall
have received the prior written consent of the Administrative Agent (and if a
Revolving Loan Commitment is being assigned, the Issuing Bank), which consent
shall not unreasonably be withheld, (ii) if it is an assignment at the request
of the Administrative Agent and there is no Event of Default, the Borrower shall
have consented to such assignment (and if a Revolving Loan Commitment is being
assigned, the Issuing Bank) which consents shall not be unreasonably withheld,
(iii) the interests, rights, duties and obligations of all Non-Consenting
Lenders are similarly assigned to Eligible Transferees, and (iv) the
Non-Consenting Lender shall have received payment of an amount equal to the
outstanding principal of its Loans, and participations in unreimbursed Drawings,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder and under the other Loan Documents, from the Eligible Transferee (to
the extent of such outstanding principal, accrued interest and accrued fees) or
the Borrower (in the case of all other amounts).
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Section 13.13 Survival of Indemnities. All indemnities set forth
herein including, without limitation, in Sections 2.10, 2.11, 3.6, 5.7, 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 13.14 Domicile of Loans. Each Lender may transfer and carry
its Loans at, to or for the account of any office, Subsidiary or Affiliate of
such Lender. Notwithstanding anything to the contrary contained herein, to the
extent that a transfer of Loans pursuant to this Section 13.14 would, at the
time of such transfer, result in increased costs under Section 2.10, 2.11, 3.6
or 5.7 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 13.15 Register. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for purposes of
this Section 13.15, to maintain a register (the "Register") on which it will
record the 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 13.15.
Section 13.16 Confidentiality.
(a) TREATMENT OF CONFIDENTIAL INFORMATION. Subject to the
provisions Section 13.16(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
infoUSA Amended and Restated Credit Agreement
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holding or parent company in its sole discretion determines that any such
party should have access to such information, provided such Persons shall
be subject to the provisions of this Section 13.16 to the same extent as
such Lender) any information with respect to 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
13.16(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 13.16, 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 13.16.
(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
13.16 to the same extent as such Lender.
Section 13.17 USA Patriot Act Notice. Each Lender hereby notifies
the Borrower that pursuant to the requirements of the USA Patriot Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance
with the Act.
Section 13.18 Restatement of Earlier Agreement. This Agreement is
executed for the purpose of replacing and restating the Old Credit Agreement.
Upon execution and delivery of this Agreement by the Lenders, the Administrative
Agent and the Borrower, none of the Lenders, the Borrower or the Administrative
Agent shall have any obligation to the other under the Old Agreement, except
that the Borrower shall continue to have the obligation to pay any fees
remaining unpaid under the Old Credit Agreement that had accrued through the
effective date of this Agreement.
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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: /s/ Raj Das
Telephone No.: (402) 593-4500 --------------------------
Telecopier No.: (402) 331-1505 Name: Raj Das
Title: Chief Financial Officer
Signature Page 1 of 2 to the Amended and Restated 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
infoUSA Amended and Restated Credit Agreement
- 1 -
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent
By: /s/ Joseph G. Colianni
----------------------
Name: JOSEPH G. COLIANNI
Title: VICE PRESIDENT
Signature Page 2 of 2 to the Amended and Restated 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 Amended and Restated Credit Agreement
- - Schedule I
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