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CONFORMED COPY
[[NYCORP:2431329v1:4332W:10/19/04--03:33 p]]
CREDIT AGREEMENT
dated as of August 20, 2004,
among
CCC INFORMATION SERVICES INC.
CCC INFORMATION SERVICES GROUP INC.
THE LENDERS NAMED HEREIN
and
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent and Collateral Agent
___________________________
CREDIT SUISSE FIRST BOSTON,
as Sole Lead Arranger and Sole Bookrunner,
JEFFERIES & COMPANY, INC.,
as Syndication Agent and Co-Arranger,
and
LASALLE BANK NATIONAL ASSOCIATION,
as Documentation Agent
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
SECTION 1.01. Defined Terms 1
SECTION 1.02. Terms Generally 23
SECTION 1.03. Pro Forma Calculations 23
SECTION 1.04. Classification of Loans and Borrowings 23
ARTICLE II
The Credits
SECTION 2.01. Commitments 24
SECTION 2.02. Loans 24
SECTION 2.03. Borrowing Procedure 26
SECTION 2.04. Evidence of Debt; Repayment of Loans 26
SECTION 2.05. Fees 27
SECTION 2.06. Interest on Loans 28
SECTION 2.07. Default Interest 29
SECTION 2.08. Alternate Rate of Interest 29
SECTION 2.09. Termination and Reduction of Commitments 29
SECTION 2.10. Conversion and Continuation of Borrowings 30
SECTION 2.11. Repayment of Term Borrowings 31
SECTION 2.12. Prepayment 32
SECTION 2.13. Mandatory Prepayments 33
SECTION 2.14. Reserve Requirements; Change in Circumstances 34
SECTION 2.15. Change in Legality 35
SECTION 2.16. Indemnity 36
SECTION 2.17. Pro Rata Treatment 37
SECTION 2.18. Sharing of Setoffs 37
SECTION 2.19. Payments 38
SECTION 2.20. Taxes 38
SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to
Mitigate 40
SECTION 2.22. Swingline Loans 42
SECTION 2.23. Letters of Credit 43
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers 47
SECTION 3.02. Authorization 48
SECTION 3.03. Enforceability 48
SECTION 3.04. Governmental Approvals 48
SECTION 3.05. Financial Statements 48
SECTION 3.06. No Material Adverse Change 49
SECTION 3.07. Title to Properties; Possession Under Leases 49
SECTION 3.08. Subsidiaries 50
SECTION 3.09. Litigation; Compliance with Laws 50
SECTION 3.10. Agreements 50
SECTION 3.11. Federal Reserve Regulations 50
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act
51
SECTION 3.13. Use of Proceeds 51
SECTION 3.14. Tax Returns 51
SECTION 3.15. No Material Misstatements 51
SECTION 3.16. Employee Benefit Plans 51
SECTION 3.17. Environmental Matters 52
SECTION 3.18. Insurance 52
SECTION 3.19. Security Documents 52
SECTION 3.20. Location of Real Property and Leased Premises 53
SECTION 3.21. Labor Matters 53
SECTION 3.22. Solvency 53
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events 54
SECTION 4.02. First Credit Event 54
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties 57
SECTION 5.02. Insurance 58
SECTION 5.03. Taxes and Certain Obligations 59
SECTION 5.04. Financial Statements, Reports, etc 59
SECTION 5.05. Litigation and Other Notices 61
SECTION 5.06. Information Regarding Collateral 62
SECTION 5.07. Maintaining Records; Access to Properties and Inspections;
Maintenance of Ratings 62
SECTION 5.08. Use of Proceeds 62
SECTION 5.09. Further Assurances 63
SECTION 5.10. Interest Rate Protection 63
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness 64
SECTION 6.02. Liens 65
SECTION 6.03. Sale and Lease-Back Transactions 67
SECTION 6.04. Investments, Loans and Advances 67
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions 69
SECTION 6.06. Restricted Payments; Restrictive Agreements 70
SECTION 6.07. Transactions with Affiliates 71
SECTION 6.08. Business of Holdings, Borrower and Subsidiaries 72
SECTION 6.09. Other Indebtedness and Agreements 72
SECTION 6.10. Capital Expenditures 72
SECTION 6.11. Interest Coverage Ratio 73
SECTION 6.12. Maximum Leverage Ratio 73
SECTION 6.13. Fiscal Year 73
SECTION 6.14. Certain Equity Securities 73
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent and the Collateral Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices 78
SECTION 9.02. Survival of Agreement 79
SECTION 9.03. Binding Effect 79
SECTION 9.04. Successors and Assigns 79
SECTION 9.05. Expenses; Indemnity 83
SECTION 9.06. Right of Setoff 85
SECTION 9.07. Applicable Law 85
SECTION 9.08. Waivers; Amendment 85
SECTION 9.09. Interest Rate Limitation 87
SECTION 9.10. Entire Agreement 87
SECTION 9.11. WAIVER OF JURY TRIAL 87
SECTION 9.12. Severability 88
SECTION 9.13. Counterparts 88
SECTION 9.14. Headings 88
SECTION 9.15. Jurisdiction; Consent to Service of Process 88
SECTION 9.16. Confidentiality 89
SECTION 9.17. USA Patriot Act Notice 89
Schedules
---------
Schedule 1.01(a) Mortgaged Properties
Schedule 1.01(b) Subsidiary Guarantors
Schedule 2.01 Lenders and Commitments
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.16 Employee Benefit Plans
Schedule 3.17 Environmental Matters
Schedule 3.18 Insurance
Schedule 3.19 UCC Filing Offices
Schedule 3.20(a) Real Property Owned in Fee
Schedule 3.20(b) Leased Real Property
Schedule 6.01 Outstanding Indebtedness on Closing Date
Schedule 6.02 Liens Existing on Closing Date
Schedule 6.04 Existing Investments
Exhibits
--------
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Borrowing Request
Exhibit D Form of Guarantee and Collateral Agreement
Exhibit E Form of Mortgage
Exhibit F Form of Opinion of Latham & Watkins LLP
CREDIT AGREEMENT (this "Agreement") dated as of August 20, 2004, among CCC
INFORMATION SERVICES INC., a Delaware corporation (the "Borrower"), CCC
INFORMATION SERVICES GROUP INC., a Delaware corporation ("Holdings"), the
Lenders (as defined in Article I), and CREDIT SUISSE FIRST BOSTON, as
administrative agent (in such capacity, the "Administrative Agent") and as
collateral agent (in such capacity, the "Collateral Agent") for the Lenders.
The Borrower has requested the Lenders to extend credit in the form of (a)
Term Loans (such term and each other capitalized term used but not defined in
this introductory statement having the meaning given it in Article I) on the
Closing Date, in an aggregate principal amount not in excess of $177,500,000,
and (b) Revolving Loans at any time and from time to time after the Closing Date
and prior to the Revolving Credit Maturity Date, in an aggregate principal
amount at any time outstanding not in excess of $30,000,000. The Borrower has
requested the Swingline Lender to extend credit, at any time and from time to
time after the Closing Date and prior to the Revolving Credit Maturity Date, in
the form of Swingline Loans, in an aggregate principal amount at any time
outstanding not in excess of $5,000,000. The Borrower has requested the Issuing
Bank to issue Letters of Credit, in an aggregate face amount at any time
outstanding not in excess of $15,000,000, to support payment obligations
incurred in the ordinary course of business by the Borrower and its Subsidiaries
and for general corporate purposes. The proceeds of the Term Loans are to be
used, together with cash on hand at the Borrower, solely to fund the Self Tender
and to pay fees and expenses incurred in connection therewith. The proceeds of
the Revolving Loans and the Swingline Loans are to be used solely for working
capital and general corporate purposes, including to finance Permitted
Acquisitions and investments permitted by Section 6.04; provided, that up to
$2,500,000 of the proceeds of the Revolving Loans may be used to fund the Self
Tender and to pay fees and expenses incurred in connection therewith if the
number of shares being sought in the Self Tender is increased as contemplated by
the definition of the term "Offer to Purchase Shares".
The Lenders are willing to extend such credit to the Borrower and the
Issuing Bank is willing to issue Letters of Credit for the account of the
Borrower on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum equal to the product of (a)
the LIBO Rate in effect for such Interest Period and (b) Statutory Reserves.
"Administrative Agent Fees" shall have the meaning assigned to such term in
Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative Questionnaire in the
form of Exhibit A, or such other form as may be supplied from time to time by
the Administrative Agent.
"Affiliate" shall mean, when used with respect to a specified person, another
person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the person specified;
provided, however, that, for purposes of Section 6.07, the term "Affiliate"
shall also include any person that directly or indirectly owns 5% or more of any
class of Equity Interests of the person specified or that is an officer or
director of the person specified.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount of the
Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. If the Administrative
Agent shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal Funds Effective Rate
for any reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms of the definition
thereof, the Alternate Base Rate shall be determined without regard to clause
(b) of the preceding sentence until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective
on the effective date of such change in the Prime Rate or the Federal Funds
Effective Rate, as the case may be.
"Applicable Percentage" shall mean, for any day, with respect to any Eurodollar
Loan or ABR Loan, or with respect to Commitment Fees, as the case may be, the
applicable percentage set forth below under the caption "Eurodollar Spread-Term
Loans", "ABR Spread-Term Loans", "Eurodollar Spread-Revolving Loans", "ABR
Spread-Revolving Loans" or "Commitment Fee Rate", as the case may be, based upon
the Leverage Ratio as of the relevant date of determination:
Leverage Ratio Eurodollar Spread--Term Loans ABR Spread--Term Loans
- --------------- ------------------------------- ------------------------
Eurodollar Spread-- Revolving Loans ABR Spread--Revolving Loans
- -------------------------------------- -----------------------------
Commitment Fee Rate
- ---------------------
Category 1
Greater than or equal to 3.0 to 1.0 3.00% 2.00% 3.00% 2.00%
- ---------------------------------------- ----- ----- ----- -----
0.50%
- -----
Category 2
Greater than or equal to 2.5 to 1.0, but less than 3.0 to 1.0 2.75%
- ---------------------------------------------------------------------- -----
1.75% 2.75% 1.75% 0.50%
- ----- ----- ----- -----
Category 3
Greater than or equal to 2.0 to 1.0, but less than 2.5 to 1.0 2.75%
- ---------------------------------------------------------------------- -----
1.75% 2.50% 1.50% 0.375%
- ----- ----- ----- ------
Category 4
Less than 2.0 to 1.0 2.75% 1.75% 2.25% 1.25% 0.375%
- ------------------------ ----- ----- ----- ----- ------
Each change in the Applicable Percentage resulting from a change in the
Leverage Ratio shall be effective with respect to all Loans and Letters of
Credit outstanding on and after the date of delivery to the Administrative Agent
of the financial statements and certificates required by Section 5.04(a) or (b)
and Section 5.04(c), respectively, indicating such change until the date
immediately preceding the next date of delivery of such financial statements and
certificates indicating another such change. Notwithstanding the foregoing,
until the Borrower shall have delivered the financial statements and
certificates required by Section 5.04(a) and Section 5.04(c), respectively, for
the period ended December 31, 2004, the Leverage Ratio shall be deemed to be in
Category 1 for purposes of determining the Applicable Percentage. In addition,
(a) at any time during which the Borrower has failed to deliver the financial
statements and certificates required by Section 5.04(a) or (b) and Section
5.04(c), respectively, or (b) at any time after the occurrence and during the
continuance of an Event of Default, the Leverage Ratio shall be deemed to be in
Category 1 for purposes of determining the Applicable Percentage.
"Asset Sale" shall mean the sale, transfer or other disposition (by way of
merger, casualty, condemnation or otherwise) by Holdings, the Borrower or any of
the Subsidiaries to any person other than the Borrower or any Subsidiary
Guarantor of (a) any Equity Interests of the Borrower or any of the Subsidiaries
(other than directors' qualifying shares) or (b) any other assets of Holdings,
the Borrower or any of the Subsidiaries (other than (i) inventory, Customer
Equipment, damaged, obsolete or worn out assets, scrap and Permitted
Investments, in each case disposed of in the ordinary course of business, (ii)
dispositions consisting of Restricted Payments permitted by Section 6.06 or
(iii) dispositions between or among Foreign Subsidiaries), provided that any
asset sale or series of related asset sales described in clause (b) above having
a value not in excess of $500,000 shall be deemed not to be an "Asset Sale" for
purposes of this Agreement.
"Assignment and Acceptance" shall mean an assignment and acceptance entered into
by a Lender and an assignee, and accepted by the Administrative Agent, in the
form of Exhibit B or such other form as shall be approved by the Administrative
Agent.
"Backstop Letter of Credit" shall mean a letter of credit that backstops
any Letter of Credit, each of which shall be in a face amount equal to 105% of
the undrawn face amount of the Letter of Credit being backstopped and shall have
terms and conditions and be issued by a financial institution acceptable to the
Issuing Bank in its sole discretion.
"Board" shall mean the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrowing" shall mean (a) Loans of the same Class and Type made, converted
or continued on the same date and, in the case of Eurodollar Loans, as to which
a single Interest Period is in effect, or (b) a Swingline Loan.
"Borrowing Request" shall mean a request by the Borrower in accordance with the
terms of Section 2.03 and substantially in the form of Exhibit C, or such other
form as shall be approved by the Administrative Agent.
"Business Day" shall mean any day other than a Saturday, Sunday or day on
which banks in New York City are authorized or required by law to close;
provided, however, that when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Capital Expenditures" shall mean, for any period, (a) the additions to
property, plant and equipment and other capital expenditures of the Borrower and
its consolidated Subsidiaries that are (or should be) set forth in a
consolidated statement of cash flows of the Borrower for such period prepared in
accordance with GAAP and (b) Capital Lease Obligations or Synthetic Lease
Obligations incurred by the Borrower and its consolidated Subsidiaries during
such period, but excluding in each case (i) any such expenditure made to
restore, replace or rebuild property to the condition of such property
immediately prior to any damage, loss, destruction or condemnation of such
property, to the extent such expenditure is made with insurance proceeds,
condemnation awards or damage recovery proceeds relating to any such damage,
loss, destruction or condemnation, (ii) any such expenditure constituting
reinvestment of the Net Cash Proceeds of any Asset Sale or (iii) any such
expenditure constituting the purchase price of any Permitted Acquisition.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capricorn" shall mean Capricorn Holdings III, L.P., a Delaware limited
partnership and Capricorn Holdings II, L.P., a Delaware limited partnership, and
their respective successors and assigns.
A "Change in Control" shall be deemed to have occurred if (a) any "person"
or "group" (within the meaning of Rule 13d-5 of the Securities Exchange Act of
1934 as in effect on the date hereof) other than the Permitted Investors shall
own, directly or indirectly, beneficially or of record, shares representing more
than 35% of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of Holdings and the percentage of aggregate ordinary
voting power owned by such "person" or "group" exceeds the percentage of
ordinary voting power owned by the Permitted Investors; (b) a majority of the
seats (other than vacant seats) on the board of directors of Holdings shall at
any time be occupied by persons who were neither (i) nominated by the board of
directors of Holdings nor (ii) appointed by directors so nominated; (c) any
change in control (or similar event, however denominated) with respect to
Holdings, the Borrower or any Subsidiary shall occur under and as defined in any
indenture or agreement in respect of Material Indebtedness to which Holdings,
the Borrower or any Subsidiary is a party, or (d) Holdings shall cease to
directly own, beneficially and of record, 100% of the issued and outstanding
Equity Interests of the Borrower.
"Change in Law" shall mean (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by any Lender or the Issuing Bank
(or, for purposes of Section 2.14, by any lending office of such Lender or by
such Lender's or Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"ChoiceParts JV" shall mean Choice Parts LLC, a Delaware limited liability
company, and any successor thereto.
"Class", when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are Revolving Loans, Term Loans or
Swingline Loans and, when used in reference to any Commitment, refers to whether
such Commitment is a Revolving Credit Commitment, Term Loan Commitment or
Swingline Commitment.
"Closing Date" shall mean the date of the first Credit Event.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to
time, and the regulations issued thereunder.
"Collateral" shall mean all the "Collateral" as defined in any Security Document
and shall also include the Mortgaged Properties.
"Commitment" shall mean, with respect to any Lender, such Lender's Revolving
Credit Commitment, Term Loan Commitment and Swingline Commitment.
"Commitment Fee" shall have the meaning assigned to such term in Section
2.05(a).
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated August 2004.
"Consolidated EBITDA" shall mean, for any period, Consolidated Net Income for
such period plus (a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) Consolidated Interest
Expense for such period, (ii) consolidated income tax expense for such period,
(iii) all amounts attributable to depreciation and amortization (including
amortization of deferred financing costs) for such period, (iv) any
non-recurring fees, cash charges and other cash expenses made or incurred in
connection with the Transactions that are paid or otherwise accounted for within
90 days of the consummation of the Transactions, (v) non-cash losses from Equity
Investees, (vi) any extraordinary losses, (vii) unusual or non-recurring fees,
cash charges and other cash expenses in an aggregate amount under this clause
(vii) not to exceed (A) $2,000,000 in any fiscal year of Holdings or (B)
$6,000,000 in the aggregate, (viii) any non-recurring fees, cash charges and
other cash expenses made or incurred in connection with any equity offering or
any issuance or other disposition of Indebtedness, investment or acquisition
permitted hereunder (in each case, whether or not consummated), (ix) any
non-cash compensation charges, including any such charges arising from stock
options, restricted stock grants or other equity-incentive programs and (x) any
other non-cash charges (other than the write-down of current assets) for such
period, and minus (b) without duplication (i) all cash payments made during such
period on account of reserves, restructuring charges and other non-cash charges
added to Consolidated Net Income pursuant to clause (a)(ix) or (x) above in a
previous period (for greater certainty, not including the fiscal quarter ended
June 30, 2004 or any prior period) and (ii) to the extent included in
determining such Consolidated Net Income, (A) any extraordinary gains and (B)
all non-cash items of income for such period appearing below the operating
income line in Holdings's consolidated income statement prepared in accordance
with GAAP or in the amount of $500,000 or more, all determined on a consolidated
basis in accordance with GAAP. For purposes of determining the Interest Coverage
Ratio and the Leverage Ratio as of or for the periods ended on September 30,
2004, December 31, 2004 and March 31, 2005, Consolidated EBITDA will be deemed
to be equal to (i) for the fiscal quarter ended December 31, 2003, $13,900,000,
(ii) for the fiscal quarter ended March 31, 2004, $12,600,000 and (iii) for the
fiscal quarter ended June 30, 2004, $12,500,000.
"Consolidated Interest Expense" shall mean, for any period, the interest expense
(including imputed interest expense in respect of Capital Lease Obligations and
Synthetic Lease Obligations), net of interest income, of Holdings, the Borrower
and the Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP. For purposes of the foregoing, interest expense shall be
determined (a) by excluding, to the extent included in interest expense, (i)
amortization of fees and expenses associated with the consummation of the
Transactions, (ii) pay-in-kind interest expense or other non-cash interest
expense and (iii) amortization of deferred financing costs and (b) after giving
effect to any net payments (other than upfront fees) made or received by the
Borrower or any Subsidiary with respect to interest rate Hedging Agreements
(with any termination payment in respect of any Hedging Agreement being
allocated on a straight-line basis over the original term of the terminated
Hedging Agreement).
"Consolidated Net Income" shall mean, for any period, the net income or loss of
Holdings, the Borrower and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income of any Subsidiary to the extent that the declaration or
payment of dividends or similar distributions by the Subsidiary of that income
is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, statute, rule or governmental
regulation applicable to such Subsidiary, (b) the income or loss of any person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or any Subsidiary or the date that such person's
assets are acquired by the Borrower or any Subsidiary, (c) the income of any
Equity Investee, except to the extent of the amount of dividends or other
distributions actually paid to the Borrower or a wholly owned Subsidiary by such
Equity Investee during such period, and (d) any gains attributable to sales of
assets out of the ordinary course of business.
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Credit Event" shall have the meaning assigned to such term in Section 4.01.
"Credit Facilities" shall mean the revolving credit and term loan facilities
provided for by this Agreement.
"Cumulative Consolidated Net Income" shall mean, as of any date of
determination, Consolidated Net Income for the period (taken as one accounting
period) commencing on the Closing Date and ending on the last day of the most
recent fiscal quarter for which the financial statements and certificates
required by Section 5.04(a) or (b) and Section 5.04(c), respectively, have been
delivered to the Administrative Agent.
"Current Assets" shall mean, at any time, the consolidated current assets
(other than cash and Permitted Investments) of the Borrower and the
Subsidiaries.
"Current Liabilities" shall mean, at any time, the consolidated current
liabilities of the Borrower and the Subsidiaries at such time, but excluding,
without duplication, (a) the current portion of any long-term Indebtedness and
(b) outstanding Revolving Loans and Swingline Loans.
"Customer Equipment" shall mean computers and related peripheral equipment
that is either purchased or leased by the Borrower or any of its Subsidiaries in
the ordinary course of business for use by its customers.
"Default" shall mean any event or condition which upon notice, lapse of time or
both would constitute an Event of Default.
"Disqualified Stock" shall mean any capital stock which, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, (a) matures (excluding any
maturity as the result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, or
requires the payment of any cash dividend or any other scheduled payment
constituting a return of capital, in each case at any time on or prior to the
first anniversary of the Term Loan Maturity Date, or (b) is convertible into or
exchangeable (unless at the sole option of the issuer thereof) for (i) debt
securities or (ii) any capital stock referred to in (a) above, in each case at
any time prior to the first anniversary of the Term Loan Maturity Date.
"dollars" or "$" shall mean lawful money of the United States of America.
"Documentation Agent" means LaSalle Bank National Association, as
documentation agent.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or organized
under the laws of the United States of America, any State thereof or the
District of Columbia.
"Environmental Laws" shall mean all former, current and future Federal, state,
local and foreign laws (including common law), treaties, regulations, rules,
ordinances, codes, decrees, judgments, directives, orders (including consent
orders), and agreements, in each case relating to protection of the environment,
natural resources, human health and safety or the presence, Release of, or
exposure to, Hazardous Materials, or the generation, manufacture, processing,
distribution, use, treatment, storage, transport, recycling or handling of, or
the arrangement for such activities with respect to, Hazardous Materials.
"Environmental Liability" shall mean all liabilities, obligations, damages,
losses, claims, actions, suits, judgments, orders, fines, penalties, fees,
expenses and costs (including administrative oversight costs, natural resource
damages and remediation costs), whether contingent or otherwise, arising out of
or relating to (a) compliance or non-compliance with any Environmental Law, (b)
the generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
Release of any Hazardous Materials or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"Equity Interests" shall mean shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity interests in any person.
"Equity Investee" shall mean any person in which (a) the Borrower or any
Subsidiary holds any Equity Interest and (b) any other person (other than the
Borrower or a wholly owned Subsidiary or any director holding qualifying shares
in accordance with applicable law) has a joint interest.
"Equity Issuance" shall mean any issuance or sale by Holdings, the Borrower or
any of their respective subsidiaries of any Equity Interests of Holdings, the
Borrower or any such subsidiary, as applicable, except in each case for (a) any
issuance or sale to Holdings, the Borrower or any Subsidiary, (b) any issuance
of directors' qualifying shares and (c) sales or issuances of common stock of
Holdings to management or employees of Holdings, the Borrower or any Subsidiary
under any employee stock option or stock purchase plan or employee benefit plan
in existence from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as the
same may be amended from time to time, and the regulations issued thereunder.
"ERISA Affiliate" shall mean any trade or business (whether or not incorporated)
that, together with the Borrower, is treated as a single employer under Section
414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder, with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan or
the withdrawal or partial withdrawal of the Borrower or any of its ERISA
Affiliates from any Plan or Multiemployer Plan; (e) the receipt by the Borrower
or any of its ERISA Affiliates from the PBGC or a plan administrator of any
notice relating to the intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the adoption of any amendment to a Plan that
would require the provision of security pursuant to Section 401(a)(29) of the
Code or Section 307 of ERISA; (g) the receipt by the Borrower or any of its
ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from
the Borrower or any of its ERISA Affiliates of any notice, concerning the
imposition of Withdrawal Liability (or that could reasonably be expected to
result in Withdrawal Liability) or a determination that a Multiemployer Plan is,
or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; (h) the occurrence of a "prohibited transaction" with respect
to which the Borrower or any of the Subsidiaries is a "disqualified person"
(within the meaning of Section 4975 of the Code) or with respect to which the
Borrower or any such Subsidiary could otherwise be liable; or (i) any other
event or condition with respect to a Plan or Multiemployer Plan that could
result in liability of the Borrower or any Subsidiary.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" shall have the meaning assigned to such term in Article
VII.
"Excess Cash Flow" shall mean, for any fiscal year of the Borrower, the
excess of (a) the sum, without duplication, of (i) Consolidated EBITDA for such
fiscal year and (ii) reductions to noncash working capital of the Borrower and
the Subsidiaries for such fiscal year (i.e., the decrease, if any, in Current
Assets minus Current Liabilities from the beginning to the end of such fiscal
year) over (b) the sum, without duplication, of (i) the amount of any Taxes
payable in cash by the Borrower and the Subsidiaries with respect to such fiscal
year, (ii) Consolidated Interest Expense for such fiscal year payable in cash,
(iii) Capital Expenditures made in cash in accordance with Section 6.10 during
such fiscal year, except to the extent financed with the proceeds of
Indebtedness, equity issuances, casualty proceeds, condemnation proceeds or
other proceeds that would not be included in Consolidated EBITDA, (iv) permanent
repayments of Indebtedness (other than mandatory prepayments of Loans under
Section 2.13) made by the Borrower and the Subsidiaries during such fiscal year,
but only to the extent that such prepayments by their terms cannot be reborrowed
or redrawn and do not occur in connection with a refinancing of all or any
portion of such Indebtedness, (v) all extraordinary cash charges, (vi) all cash
expenditures during such fiscal year that were added back in determining
Consolidated EBITDA for such fiscal year (vii) cash expenditures made in respect
of Hedging Agreements during such fiscal year, to the extent not reflected in
the computation of Consolidated EBITDA for such fiscal year and (viii) additions
to noncash working capital for such fiscal year (i.e., the increase, if any, in
Current Assets minus Current Liabilities from the beginning to the end of such
fiscal year).
"Excluded Taxes" shall mean, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (a) above and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.21(a)), any withholding tax that is imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office) or is attributable to such
Foreign Lender's failure to comply with Section 2.20(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.20(a).
"Existing Credit Agreement" means the Second Amended and Restated Credit
Facility Agreement entered into as of November 30, 2001, among the Borrower, the
lenders from time to time party thereto and LaSalle Bank National Association,
as administrative agent and issuing bank.
"Federal Funds Effective Rate" shall mean, for any day, the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for the day for such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.
"Fee Letter" shall mean the Fee Letter dated July 23, 2004, among the Borrower,
the Administrative Agent and the Syndication Agent.
"Fees" shall mean the Commitment Fees, the Administrative Agent Fees, the L/C
Participation Fees and the Issuing Bank Fees.
"Financial Officer" of any person shall mean the chief financial officer,
principal accounting officer, treasurer or controller of such person.
"Foreign Lender" shall mean any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean United States generally accepted accounting principles applied
on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or foreign court
or governmental agency, authority, instrumentality or regulatory body.
"Granting Lender" shall have the meaning assigned to such term in Section
9.04(i).
"Guarantee" of or by any person shall mean any obligation, contingent or
otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of such person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment of such Indebtedness or other obligation, (b)
to purchase or lease property, securities or services for the purpose of
assuring the owner of such Indebtedness or other obligation of the payment of
such Indebtedness or other obligation or (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation; provided, however, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantee and Collateral Agreement" shall mean the Guarantee and Collateral
Agreement, substantially in the form of Exhibit D, among the Borrower, Holdings,
the Subsidiaries party thereto and the Collateral Agent for the benefit of the
Secured Parties.
"Guarantors" shall mean Holdings and the Subsidiary Guarantors.
"Hazardous Materials" shall mean (a) any petroleum products or byproducts and
all other hydrocarbons, coal ash, radon gas, asbestos, urea formaldehyde foam
insulation, polychlorinated biphenyls, chlorofluorocarbons and all other
ozone-depleting substances and (b) any chemical, material, substance or waste
that is prohibited, limited or regulated by or pursuant to any Environmental
Law.
"Hedging Agreement" shall mean any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid, (d) all obligations of such
person under conditional sale or other title retention agreements relating to
property or assets purchased by such person, (e) all obligations of such person
issued or assumed as the deferred purchase price of property or services
(excluding trade accounts payable and accrued obligations incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
person, whether or not the obligations secured thereby have been assumed, (g)
all Guarantees by such person of Indebtedness of others, (h) all Capital Lease
Obligations and Synthetic Lease Obligations of such person, (i) all obligations
of such person as an account party in respect of letters of credit, (j) all
obligations of such person in respect of bankers' acceptances and (k) all
obligations of such person under or in respect of Hedging Agreements. The
Indebtedness of any person shall include the Indebtedness of any partnership in
which such person is a general partner. Notwithstanding the foregoing,
"Indebtedness" shall not include obligations arising under agreements of the
Borrower or a Subsidiary providing for indemnification, adjustment of purchase
price or other post-closing payment adjustments, including wholly contingent
earn-outs and other similar arrangements, in each case incurred in connection
with the disposition of the assets of any person, a business of any person or
the Equity Interests in any person.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes and Other Taxes.
"Indemnitee" shall have the meaning assigned to such term in Section 9.05(b).
"Interest Coverage Ratio" shall mean, for any period, the ratio of (a)
Consolidated EBITDA for such period to (b) Consolidated Interest Expense for
such period.
"Interest Payment Date" shall mean (a) with respect to any ABR Loan
(including any Swingline Loan), the last Business Day of each March, June,
September and December, and (b) with respect to any Eurodollar Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurodollar Borrowing with an Interest Period of more
than three months' duration, each day that would have been an Interest Payment
Date had successive Interest Periods of three months' duration been applicable
to such Borrowing.
"Interest Period" shall mean, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months (or, with the consent of
each applicable Lender, 9 or 12 months) thereafter, as the Borrower may elect;
provided, however, that if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day. Interest shall accrue from and including the first day
of an Interest Period to but excluding the last day of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
"Issuer Tender Offer Statement" means the Tender Offer Statement on
Schedule TO filed by Holdings with the Securities and Exchange Commission
pursuant to Rule 13e-4 under the Securities and Exchange Act of 1934 in
connection with the Self Tender.
"Issuing Bank" shall mean, as the context may require, (a) Credit Suisse
First Boston, in its capacity as the issuer of Letters of Credit hereunder, and
(b) any other Lender that may become an Issuing Bank pursuant to Section 2.23(i)
or 2.23(k), with respect to Letters of Credit issued by such Lender. The
Issuing Bank may, in its discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of the Issuing Bank, in which case the term "Issuing
Bank" shall include any such Affiliate with respect to Letters of Credit issued
by such Affiliate.
"Issuing Bank Fees" shall have the meaning assigned to such term in Section
2.05(c).
"L/C Commitment" shall mean the commitment of the Issuing Bank to issue Letters
of Credit pursuant to Section 2.23.
"L/C Disbursement" shall mean a payment or disbursement made by the Issuing Bank
pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time and (b) the aggregate
principal amount of all L/C Disbursements that have not yet been reimbursed at
such time. The L/C Exposure of any Revolving Credit Lender at any time shall
equal its Pro Rata Percentage of the aggregate L/C Exposure at such time.
"L/C Participation Fee" shall have the meaning assigned to such term in Section
2.05(c).
"Lenders" shall mean (a) the persons listed on Schedule 2.01 (other than any
such person that has ceased to be a party hereto pursuant to an Assignment and
Acceptance) and (b) any person that has become a party hereto pursuant to an
Assignment and Acceptance. Unless the context clearly indicates otherwise, the
term "Lenders" shall include the Swingline Lender.
"Letter of Credit" shall mean any letter of credit issued pursuant to Section
2.23.
"Leverage Ratio" shall mean, on any date, the ratio of Total Debt on such date
to Consolidated EBITDA for the period of four consecutive fiscal quarters most
recently ended on or prior to such date.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for any
Interest Period, the rate per annum determined by the Administrative Agent at
approximately 11:00 a.m., London time, on the date that is two Business Days
prior to the commencement of such Interest Period by reference to the British
Bankers' Association Interest Settlement Rates for deposits in dollars (as set
forth by any service selected by the Administrative Agent that has been
nominated by the British Bankers' Association as an authorized information
vendor for the purpose of displaying such rates) for a period equal to such
Interest Period; provided that, to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition, the "LIBO
Rate" shall be the interest rate per annum determined by the Administrative
Agent to be the average of the rates per annum at which deposits in dollars are
offered for such relevant Interest Period to major banks in the London interbank
market in London, England by the Administrative Agent at approximately 11:00
a.m., London time, on the date that is two Business Days prior to the beginning
of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Letters of Credit and the
Security Documents.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Loans" shall mean the Revolving Loans, the Term Loans and the Swingline Loans.
"Margin Stock" shall have the meaning assigned to such term in Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse effect on the
business, assets, liabilities, financial condition or results of operations of
the Borrower and the Subsidiaries, taken as a whole, (b) a material impairment
of the ability of the Borrower or any other Loan Party to perform any of its
obligations under any Loan Document to which it is or will be a party or (c) a
material impairment of the rights of or benefits available to the Lenders under
any Loan Document.
"Material Indebtedness" shall mean Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of Holdings, the Borrower and the Subsidiaries in an
aggregate principal amount exceeding $5,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of Holdings,
the Borrower or any Subsidiary in respect of any Hedging Agreement at any time
shall be the maximum aggregate amount (giving effect to any netting agreements)
that Holdings, the Borrower or such Subsidiary would be required to pay if such
Hedging Agreement were terminated at such time.
"Moody's" shall mean Moody's Investors Service, Inc., or any successor thereto.
"Mortgaged Properties" shall mean, initially, the owned real properties of the
Loan Parties specified on Schedule 1.01(a), and shall include each other parcel
of owned real property and improvements thereto with respect to which a
Mortgage is granted pursuant to Section 5.09.
"Mortgages" shall mean the mortgages, deeds of trust, modifications and other
security documents delivered pursuant to Section 5.09, each substantially in the
form of Exhibit E.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the cash
proceeds (including cash proceeds subsequently received (as and when received)
in respect of noncash consideration initially received), net of (i) selling
expenses (including reasonable broker's fees or commissions, legal fees,
transfer and similar taxes and the Borrower's good faith estimate of income
taxes paid or payable in connection with such sale), (ii) amounts provided as a
reserve, in accordance with GAAP, against any liabilities under any
indemnification obligations or purchase price adjustment associated with such
Asset Sale (provided that, to the extent and at the time any such amounts are
released from such reserve, such amounts shall constitute Net Cash Proceeds) and
(iii) the principal amount, premium or penalty, if any, interest and other
amounts on any Indebtedness for borrowed money which is secured by the asset
sold in such Asset Sale and which is required to be repaid with such proceeds
(other than any such Indebtedness assumed by the purchaser of such asset);
provided, however, that, if (x) the Borrower shall deliver a certificate of a
Financial Officer to the Administrative Agent at the time of receipt thereof
setting forth the Borrower's intent to reinvest such proceeds in productive
assets of a kind then used or usable in the business of the Borrower and its
Subsidiaries within 270 days of receipt of such proceeds and (y) no Default or
Event of Default shall have occurred and shall be continuing at the time of such
certificate or at the proposed time of the application of such proceeds, such
proceeds shall not constitute Net Cash Proceeds except to the extent not so used
or contractually committed to be used at the end of such 270 day period, at
which time such proceeds shall be deemed to be Net Cash Proceeds; and provided
further that in the case of any proceeds from the sale or other disposition by
the Borrower of the Equity Interests in the ChoiceParts JV held by the Borrower
(x) up to $5,000,000 of such proceeds shall not constitute Net Cash Proceeds,
(y) any such proceeds in excess of $5,000,000 but less than or equal to
$10,000,000 shall constitute Net Cash Proceeds in respect of which the
reinvestment provisions set forth in the immediately preceding proviso shall not
be applicable and (z) with respect to any such proceeds in excess of
$10,000,000, 50% of such proceeds shall not constitute Net Cash Proceeds and 50%
of such proceeds shall constitute Net Cash Proceeds in respect of which the
reinvestment provisions set forth in the immediately preceding proviso shall not
be applicable; and (b) with respect to any issuance or disposition of
Indebtedness or any Equity Issuance, the cash proceeds thereof, net of all taxes
and customary fees, commissions, costs and other expenses incurred in connection
therewith.
"Obligations" shall mean all obligations defined as "Obligations" in the
Guarantee and Collateral Agreement and the other Security Documents.
"Offer to Purchase Shares" means up to 11,200,000 shares of common stock, par
value $0.10 per share, of Holdings that Holdings has offered to purchase
pursuant to the Self Tender (plus an additional number of shares of such common
stock not to exceed 2% of the outstanding shares of such common stock if
Holdings increases the number of shares being sought in the Self Tender without
extending the offer in accordance with the applicable rules and regulations of
the Securities and Exchange Commission).
"Other Taxes" shall mean any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" shall mean the Perfection Certificate substantially in
the form of Exhibit B to the Guarantee and Collateral Agreement.
"Permitted Acquisition" shall have the meaning assigned to such term in Section
6.04(g).
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States of America (or by any
agency thereof to the extent such obligations are backed by the full faith
and credit of the United States of America), in each case maturing within one
year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date
of acquisition thereof and having, at such date of acquisition, a credit rating
of "A-1" (or higher) from S&P or "P-1" (or higher) from Moody's;
(c) investments in certificates of deposit, banker's acceptances and time
deposits maturing within one year from the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, the Administrative Agent or any domestic office of any commercial
bank organized under the laws of the United States of America or any State
thereof that has a combined capital and surplus and undivided profits of not
less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more than
30 days for securities described in clause (a) above and entered into with a
financial institution satisfying the criteria of clause (c) above;
(e) investments in "money market funds" within the meaning of Rule 2a-7 of
the Investment Company Act of 1940, as amended, substantially all of whose
assets are invested in investments of the type described in clauses (a) through
(d) above; and
(f) other short-term investments utilized by Foreign Subsidiaries in
accordance with normal investment practices for cash management in investments
of a type analogous to the foregoing.
"Permitted Investors" shall mean (a) Capricorn and White River and their
respective Affiliates and (b) the directors, executive officers and other
management employees of Holdings or the Borrower on the Closing Date.
"person" shall mean any natural person, corporation, business trust, joint
venture, association, company, limited liability company, partnership,
Governmental Authority or other entity.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under ERISA be
deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" shall mean the rate of interest per annum determined from time
to time by Credit Suisse First Boston as its prime rate in effect at its
principal office in New York City and notified to the Borrower.
"Pro Forma Basis" shall mean, with respect to compliance with any test or
covenant hereunder, compliance with such covenant or test after giving effect to
(a) any proposed Permitted Acquisition or (b) any Asset Sale of a Subsidiary or
operating entity for which historical financial statements for the relevant
period are available (including pro forma adjustments arising out of events
which are directly attributable to the proposed Permitted Acquisition or Asset
Sale, are factually supportable and are expected to have a continuing impact, in
each case as determined on a basis consistent with Article 11 of Regulation S-X
of the Securities Act of 1933, as amended, as interpreted by the Staff of the
Securities and Exchange Commission, and as certified by a Financial Officer of
the Borrower) using, for purposes of determining such compliance, the historical
financial statements of all entities or assets so acquired or sold and the
consolidated financial statements of the Borrower and its Subsidiaries which
shall be reformulated as if such Permitted Acquisition or Asset Sale, and all
other Permitted Acquisitions or Asset Sales that have been consummated during
the period, and any Indebtedness or other liabilities incurred in connection
with any such Permitted Acquisitions had been consummated and incurred at the
beginning of such period.
"Pro Rata Percentage" of any Revolving Credit Lender at any time shall mean the
percentage of the Total Revolving Credit Commitment represented by such Lender's
Revolving Credit Commitment. In the event the Revolving Credit Commitments
shall have expired or been terminated, the Pro Rata Percentages shall be
determined on the basis of the Revolving Credit Commitments most recently in
effect, giving effect to any subsequent assignments.
"Qualified Capital Stock" of any person shall mean any capital stock of
such person that is not Disqualified Stock.
"Register" shall have the meaning assigned to such term in Section 9.04(d).
"Regulation T" shall mean Regulation T of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Related Fund" shall mean, with respect to any Lender that is a fund that
invests in bank loans and is administered, advised or managed by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.
"Related Parties" shall mean, with respect to any specified person, such
person's Affiliates, successors and assigns and the respective directors,
trustees, officers, employees, agents, advisors, controlling persons and members
of such person and such person's Affiliates.
"Release" shall mean any release, spill, emission, leaking, dumping, injection,
pouring, deposit, disposal, discharge, dispersal, leaching or migration into or
through the environment or within or upon any building, structure, facility or
fixture.
"Repayment Date" shall have the meaning given such term in Section 2.11.
"Required Lenders" shall mean, at any time, Lenders having Loans (excluding
Swingline Loans), L/C Exposure, Swingline Exposure and unused Revolving Credit
Commitments and Term Loan Commitments representing more than 50% of the sum of
all Loans outstanding (excluding Swingline Loans), L/C Exposure, Swingline
Exposure and unused Revolving Credit Commitments and Term Loan Commitments at
such time.
"Responsible Officer" of any person shall mean any executive officer or
Financial Officer of such person and any other officer or similar official
thereof responsible for the administration of the obligations of such person in
respect of this Agreement.
"Restricted Indebtedness" shall mean Indebtedness of Holdings, the Borrower or
any Subsidiary, the payment, prepayment, repurchase or defeasance of which is
restricted under Section 6.09(b).
"Restricted Payment" shall mean any dividend or other distribution (whether in
cash, securities or other property) with respect to any Equity Interests in
Holdings, the Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Equity Interests in Holdings, the Borrower or any Subsidiary
or any option, warrant or other right to acquire any such Equity Interests in
Holdings, the Borrower or any Subsidiary.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of Revolving
Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Revolving Loans (and to participate in Letters
of Credit and Swingline Loans) hereunder as set forth on Schedule 2.01, or in
the Assignment and Acceptance pursuant to which such Lender assumed its
Revolving Credit Commitment, as applicable, as the same may be (a) reduced from
time to time pursuant to Section 2.09 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any Lender at any time,
the aggregate principal amount at such time of all outstanding Revolving Loans
of such Lender, plus the aggregate amount at such time of such Lender's L/C
Exposure, plus the aggregate amount at such time of such Lender's Swingline
Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving Credit Commitment
or an outstanding Revolving Loan.
"Revolving Credit Maturity Date" shall mean August 20, 2009.
"Revolving Loans" shall mean the revolving loans made by the Lenders to the
Borrower pursuant to clause (b) of Section 2.01.
"Secured Parties" shall have the meaning assigned to such term in the Guarantee
and Collateral Agreement.
"Security Documents" shall mean the Mortgages, the Guarantee and Collateral
Agreement and each of the security agreements, mortgages and other instruments
and documents executed and delivered pursuant to any of the foregoing or
pursuant to Section 5.09.
"Self Tender" means the offer made by Holdings to purchase the Offer to Purchase
Shares for an aggregate purchase price not to exceed $210,000,000 (or, if the
number of shares being sought in the Self Tender is increased as contemplated by
the definition of the term "Offer to Purchase Shares", not to exceed
$220,500,000), as described in the Offer to Purchase dated July 27, 2004 and the
related Letter of Transmittal.
"SPC" shall have the meaning assigned to such term in Section 9.04(i).
"S&P" shall mean Standard & Poor's, a division of The McGraw-Hill
Companies, Inc., or any successor thereto.
"Statutory Reserves" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other banking authority, domestic or foreign,
to which the Administrative Agent or any Lender (including any branch,
Affiliate, or other fronting office making or holding a Loan) is subject for
Eurocurrency Liabilities (as defined in Regulation D of the Board). Eurodollar
Loans shall be deemed to constitute Eurocurrency Liabilities (as defined in
Regulation D of the Board) and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D. Statutory
Reserves shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
"subsidiary" shall mean, with respect to any person (herein referred to as the
"parent"), any corporation, partnership, association or other business entity
(a) of which securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power or more than 50% of
the general partnership interests are, at the time any determination is being
made, owned, Controlled or held, or (b) that is, at the time any determination
is made, otherwise Controlled, by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Subsidiary Guarantor" shall mean each Subsidiary listed on Schedule 1.01(b),
and each other Subsidiary that is or becomes a party to the Guarantee and
Collateral Agreement.
"Swingline Commitment" shall mean the commitment of the Swingline Lender to make
loans pursuant to Section 2.22, as the same may be reduced from time to time
pursuant to Section 2.09.
"Swingline Exposure" shall mean at any time the aggregate principal amount at
such time of all outstanding Swingline Loans. The Swingline Exposure of any
Revolving Credit Lender at any time shall equal its Pro Rata Percentage of the
aggregate Swingline Exposure at such time.
"Swingline Lender" shall mean Credit Suisse First Boston, in its capacity as
lender of Swingline Loans hereunder.
"Swingline Loan" shall mean any loan made by the Swingline Lender pursuant to
Section 2.22.
"Syndication Agent" means Jefferies & Company, Inc., in its capacity as
syndication agent.
"Synthetic Lease" shall mean, as to any person, any lease (including leases that
may be terminated by the lessee at any time) of any property (whether real,
personal or mixed) (a) that is accounted for as an operating lease under GAAP
and (b) in respect of which the lessee retains or obtains ownership of the
property so leased for U.S. federal income tax purposes, other than any such
lease under which such person is the lessor.
"Synthetic Lease Obligations" shall mean, as to any person, an amount equal to
the capitalized amount of the remaining lease payments under any Synthetic Lease
that would appear on a balance sheet of such person in accordance with GAAP if
such obligations were accounted for as Capital Lease Obligations.
"Synthetic Purchase Agreement" shall mean any swap, derivative or other
agreement or combination of agreements pursuant to which Holdings, the Borrower
or any Subsidiary is or may become obligated to make (a) any payment in
connection with a purchase by any third party from a person other than Holdings,
the Borrower or any Subsidiary of any Equity Interest or Restricted Indebtedness
or (b) any payment (other than on account of a permitted purchase by it of any
Equity Interest or Restricted Indebtedness) the amount of which is determined by
reference to the price or value at any time of any Equity Interest or Restricted
Indebtedness; provided that no phantom stock or similar plan providing for
payments only to current or former directors, officers or employees of Holdings,
the Borrower or the Subsidiaries (or to their heirs or estates) shall be deemed
to be a Synthetic Purchase Agreement.
"Tax Sharing Agreement" shall mean the Tax Sharing Agreement dated as of August
22, 1996, among Holdings, the Borrower and certain Subsidiaries.
"Taxes" shall mean any and all present or future taxes, levies, imposts, duties,
deductions, charges, liabilities or withholdings imposed by any Governmental
Authority.
"Term Borrowing" shall mean a Borrowing comprised of Term Loans.
"Term Lender" shall mean a Lender with a Term Loan Commitment or an outstanding
Term Loan.
"Term Loan Commitment" shall mean, with respect to each Lender, the commitment
of such Lender to make Term Loans hereunder as set forth on Schedule 2.01, or in
the Assignment and Acceptance pursuant to which such Lender assumed its Term
Loan Commitment, as applicable, as the same may be (a) reduced from time to time
pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04.
"Term Loan Maturity Date" shall mean August 20, 2010.
"Term Loans" shall mean the term loans made by the Lenders to the Borrower
pursuant to clause (a) of Section 2.01.
"Total Debt" shall mean, at any time, the total Indebtedness of the Borrower and
the Subsidiaries at such time.
"Total Revolving Credit Commitment" shall mean, at any time, the aggregate
amount of the Revolving Credit Commitments, as in effect at such time. The
initial Total Revolving Credit Commitment is $30,000,000.
"Transactions" shall have the meaning assigned to such term in Section 3.02.
"Type", when used in respect of any Loan or Borrowing, shall refer to the Rate
by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, the term "Rate" shall include the
Adjusted LIBO Rate and the Alternate Base Rate.
"USA Patriot Act" shall mean The Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
(Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).
"White River" shall mean White River Ventures, Inc., a Delaware corporation, and
its successors and assigns.
"wholly owned Subsidiary" of any person shall mean a subsidiary of such person
of which securities (except for directors' qualifying shares) or other ownership
interests representing 100% of the Equity Interests are, at the time any
determination is being made, owned, Controlled or held by such person or one or
more wholly owned Subsidiaries of such person or by such person and one or more
wholly owned Subsidiaries of such person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall"; and the words "asset" and "property" shall be construed as having the
same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.
All references herein to Articles, Sections, Exhibits and Schedules shall
be deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Article
VI or any related definition to eliminate the effect of any change in GAAP
occurring after the date of this Agreement on the operation of such covenant (or
if the Administrative Agent notifies the Borrower that the Required Lenders wish
to amend Article VI or any related definition for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.
SECTION 1.03. Pro Forma Calculations. With respect to any period during
which any Permitted Acquisition or Asset Sale of the type described in clause
(b) of the definition of the term "Pro Forma Basis" occurs as permitted pursuant
to the terms hereof, the Leverage Ratio and the Interest Coverage Ratio shall be
calculated with respect to such period and such Permitted Acquisition or Asset
Sale on a Pro Forma Basis.
SECTION 1.04. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type (e.g., a
"Eurodollar Revolving Loan"). Borrowings also may be classified and referred to
by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurodollar
Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving Borrowing").
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions and relying
upon the representations and warranties herein set forth, each Lender agrees,
severally and not jointly, (a) to make a Term Loan to the Borrower on the
Closing Date in a principal amount not to exceed its Term Loan Commitment, and
(b) to make Revolving Loans to the Borrower, at any time and from time to time
after the Closing Date, and until the earlier of the Revolving Credit Maturity
Date and the termination of the Revolving Credit Commitment of such Lender in
accordance with the terms hereof, in an aggregate principal amount at any time
outstanding that will not result in such Lender's Revolving Credit Exposure
exceeding such Lender's Revolving Credit Commitment. Within the limits set
forth in clause (b) of the preceding sentence and subject to the terms,
conditions and limitations set forth herein, the Borrower may borrow, pay or
prepay and reborrow Revolving Loans. Amounts paid or prepaid in respect of Term
Loans may not be reborrowed.
SECTION 2.02. Loans. (a) Each Loan (other than Swingline Loans) shall be
made as part of a Borrowing consisting of Loans made by the Lenders ratably in
accordance with their applicable Commitments; provided, however, that the
failure of any Lender to make any Loan shall not in itself relieve any other
Lender of its obligation to lend hereunder (it being understood, however, that
no Lender shall be responsible for the failure of any other Lender to make any
Loan required to be made by such other Lender). Except for Loans deemed made
pursuant to Section 2.02(f), the Loans comprising any Borrowing shall be in an
aggregate principal amount that is (i) an integral multiple of $500,000 and not
less than $1,000,000 or (ii) equal to the remaining available balance of the
applicable Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request pursuant
to Section 2.03. Each Lender may at its option make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement. Borrowings of more than one Type may be outstanding at the same
time; provided, however, that the Borrower shall not be entitled to request any
Borrowing that, if made, would result in more than eight Eurodollar Borrowings
outstanding hereunder at any time. For purposes of the foregoing, Borrowings
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Borrowings.
(c) Except with respect to Loans made pursuant to Section 2.02(f), each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to such account in New
York City as the Administrative Agent may designate not later than 1:00 p.m.,
New York City time, and the Administrative Agent shall promptly credit the
amounts so received to an account designated by the Borrower in the applicable
Borrowing Request or, if a Borrowing shall not occur on such date because any
condition precedent herein specified shall not have been met, return the amounts
so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a Lender
prior to the date of any Borrowing that such Lender will not make available to
the Administrative Agent such Lender's portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
paragraph (c) above and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If the Administrative Agent shall have so made funds available then, to the
extent that such Lender shall not have made such portion available to the
Administrative Agent, such Lender and the Borrower severally agree to repay to
the Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to the Borrower until the date such amount is repaid to the Administrative Agent
at (i) in the case of the Borrower, the interest rate applicable at the time to
the Loans comprising such Borrowing and (ii) in the case of such Lender, (A) for
the first two days following the date such amount is made available to the
Borrower, a rate determined by the Administrative Agent to represent its cost of
overnight or short-term funds (which determination shall be conclusive absent
manifest error) and (B) thereafter, at the Alternate Base Rate. If such Lender
shall repay to the Administrative Agent such corresponding amount, such amount
shall constitute such Lender's Loan as part of such Borrowing for purposes of
this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Revolving Credit Borrowing if the Interest
Period requested with respect thereto would end after the Revolving Credit
Maturity Date.
(f) If the Issuing Bank shall not have received from the Borrower the
payment required to be made by Section 2.23(e) within the time specified in such
Section, the Issuing Bank will promptly notify the Administrative Agent of the
L/C Disbursement and the Administrative Agent will promptly notify each
Revolving Credit Lender of such L/C Disbursement and its Pro Rata Percentage
thereof. Each Revolving Credit Lender shall pay by wire transfer of immediately
available funds to the Administrative Agent not later than 2:00 p.m., New York
City time, on such date (or, if such Revolving Credit Lender shall have received
such notice later than 12:00 (noon), New York City time, on any day, not later
than 10:00 a.m., New York City time, on the immediately following Business Day),
an amount equal to such Lender's Pro Rata Percentage of such L/C Disbursement
(it being understood that such amount shall be deemed to constitute an ABR
Revolving Loan of such Lender and such payment shall be deemed to have reduced
the L/C Exposure), and the Administrative Agent will promptly pay to the Issuing
Bank amounts so received by it from the Revolving Credit Lenders. The
Administrative Agent will promptly pay to the Issuing Bank any amounts received
by it from the Borrower pursuant to Section 2.23(e) prior to the time that any
Revolving Credit Lender makes any payment pursuant to this paragraph (f); any
such amounts received by the Administrative Agent thereafter will be promptly
remitted by the Administrative Agent to the Revolving Credit Lenders that shall
have made such payments and to the Issuing Bank, as their interests may appear.
If any Revolving Credit Lender shall not have made its Pro Rata Percentage of
such L/C Disbursement available to the Administrative Agent as provided above,
such Lender and the Borrower severally agree to pay interest on such amount, for
each day from and including the date such amount is required to be paid in
accordance with this paragraph to but excluding the date such amount is paid, to
the Administrative Agent for the account of the Issuing Bank at (i) in the case
of the Borrower, a rate per annum equal to the interest rate applicable to
Revolving Loans pursuant to Section 2.06(a), and (ii) in the case of such
Lender, for the first such day, the Federal Funds Effective Rate, and for each
day thereafter, the Alternate Base Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing (other
than a Swingline Loan or a deemed Borrowing pursuant to Section 2.02(f), as to
which this Section 2.03 shall not apply and other than any Borrowing to be made
on the Closing Date, in respect of which the related Borrowing Request must be
hand delivered or faxed to the Administrative Agent (or made by telephone
promptly followed by hand delivery or fax of a duly completed Borrowing Request)
not later than 12:00 (noon), New York City time, one Business Day prior to
the Closing Date, regardless of whether any such Borrowing is to be a Eurodollar
Borrowing or an ABR Borrowing), the Borrower shall hand deliver or fax to the
Administrative Agent a duly completed Borrowing Request (or shall make such
request by telephone promptly followed by the hand delivery or fax of a duly
completed Borrowing Request) (a) in the case of a Eurodollar Borrowing, not
later than 1:00 p.m., New York City time, three Business Days before a proposed
Borrowing, and (b) in the case of an ABR Borrowing, not later than 1:00 p.m.,
New York City time, one Business Day before a proposed Borrowing. Each
Borrowing Request shall be irrevocable, shall be signed by or on behalf of the
Borrower and shall specify the following information: (i) whether the Borrowing
then being requested is to be a Term Borrowing or a Revolving Credit Borrowing,
and whether such Borrowing is to be a Eurodollar Borrowing or an ABR Borrowing;
(ii) the date of such Borrowing (which shall be a Business Day); (iii) the
number and location of the account to which funds are to be disbursed; (iv) the
amount of such Borrowing; and (v) if such Borrowing is to be a Eurodollar
Borrowing, the Interest Period with respect thereto (which, in the case of any
Eurodollar Borrowing to be made on the Closing Date, shall be an Interest Period
of one month); provided, however, that, notwithstanding any contrary
specification in any Borrowing Request, each requested Borrowing shall comply
with the requirements set forth in Section 2.02. If no election as to the Type
of Borrowing is specified in any such notice, then the requested Borrowing shall
be an ABR Borrowing. If no Interest Period with respect to any Eurodollar
Borrowing is specified in any such notice, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration. The Administrative
Agent shall promptly advise the applicable Lenders of any notice given pursuant
to this Section 2.03 (and the contents thereof), and of each Lender's portion of
the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender (i) the principal amount of each Term Loan of such Lender
as provided in Section 2.11 and (ii) the then unpaid principal amount of each
Revolving Loan of such Lender on the Revolving Credit Maturity Date. The
Borrower hereby promises to pay to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the Revolving Credit Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will record
(i) the amount of each Loan made hereunder, the Type thereof and, if
applicable, the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder from the Borrower or any Guarantor and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b)
and (c) above shall be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligations of the Borrower to repay the Loans in
accordance with their terms.
(e) Any Lender may request that Loans made by it hereunder be evidenced by a
promissory note. In such event, the Borrower shall execute and deliver to such
Lender a promissory note payable to such Lender and its registered assigns and
in a form and substance reasonably acceptable to the Administrative Agent and
the Borrower. Notwithstanding any other provision of this Agreement, in the
event any Lender shall request and receive such a promissory note, the interests
represented by such note shall at all times (including after any assignment of
all or part of such interests pursuant to Section 9.04) be represented by one or
more promissory notes payable to the payee named therein or its registered
assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Lender, through
the Administrative Agent, on the last Business Day of March, June,
September and December in each year and on each date on which any Commitment of
such Lender shall expire or be terminated as provided herein, a commitment fee
(a "Commitment Fee") at a rate per annum equal to the Applicable Percentage in
effect from time to time on the daily unused amount of the Revolving Credit
Commitment of such Lender during the preceding quarter (or other period
commencing with the date hereof or ending with the Revolving Credit Maturity
Date or the date on which the Commitments of such Lender shall expire or be
terminated). All Commitment Fees shall be computed on the basis of the actual
number of days elapsed in a year of 360 days. The Commitment Fee due to each
Lender shall commence to accrue on the date hereof and shall cease to accrue on
the date on which the Commitment of such Lender shall expire or be terminated as
provided herein. For purposes of calculating Commitment Fees only, no portion
of the Revolving Credit Commitments shall be deemed utilized as a result of
outstanding Swingline Loans.
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, the administrative fees set forth in the Fee Letter at the times and in
the amounts specified therein (the "Administrative Agent Fees").
(c) The Borrower agrees to pay (i) to each Revolving Credit Lender, through
the Administrative Agent, on the last Business Day of March, June, September and
December of each year and on the date on which the Revolving Credit
Commitment of such Lender shall be terminated as provided herein, a fee (an "L/C
Participation Fee") calculated on such Lender's Pro Rata Percentage of the daily
aggregate L/C Exposure (excluding the portion thereof attributable to
unreimbursed L/C Disbursements) during the preceding quarter (or shorter period
commencing with the date hereof or ending with the Revolving Credit Maturity
Date or the date on which all Letters of Credit have been canceled or have
expired and the Revolving Credit Commitments of all Lenders shall have been
terminated) at a rate per annum equal to the Applicable Percentage from time to
time used to determine the interest rate on Revolving Credit Borrowings
comprised of Eurodollar Loans pursuant to Section 2.06, and (ii) to the Issuing
Bank with respect to each Letter of Credit, the fronting fees separately agreed
upon from time to time between the Borrower and the Issuing Bank and the
standard issuance and administrative fees specified from time to time by the
Issuing Bank (the "Issuing Bank Fees"). All L/C Participation Fees and Issuing
Bank Fees shall be computed on the basis of the actual number of days elapsed in
a year of 360 days.
(d) All Fees shall be paid on the dates due, in immediately available funds,
to the Administrative Agent for distribution, if and as appropriate, among the
Lenders, except that the Issuing Bank Fees shall be paid directly to the Issuing
Bank. Once paid, none of the Fees shall be refundable under any circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of Section
2.07, the Loans comprising each ABR Borrowing, including each Swingline Loan,
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 365 or 366 days, as the case may be, when the Alternate Base Rate
is determined by reference to the Prime Rate and over a year of 360 days at
all other times and calculated from and including the date of such Borrowing to
but excluding the date of repayment thereof) at a rate per annum equal to the
Alternate Base Rate plus the Applicable Percentage in effect from time to time.
(b) Subject to the provisions of Section 2.07, the Loans comprising each
Eurodollar Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Percentage in effect from time to time.
(c) Interest on each Loan shall be payable on the Interest Payment Dates
applicable to such Loan except as otherwise provided in this Agreement. The
applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest Period or
day within an Interest Period, as the case may be, shall be determined by
the Administrative Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.07. Default Interest. Any amount (whether of principal, interest,
Fees or otherwise) not paid when due hereunder or under any other Loan
Document shall bear interest, to the extent permitted by law (after as well as
before judgment), payable on demand, (a) in the case of principal, at the rate
otherwise applicable thereto pursuant to Section 2.06 plus 2.00% per annum and
(b) in all other cases, at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be, when
determined by reference to the Prime Rate and over a year of 360 days at all
other times) equal to the rate that would be applicable to an ABR Term Loan plus
2.00% per annum.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined that dollar deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London interbank market,
or that the rates at which such dollar deposits are being offered will not
adequately and fairly reflect the cost to any Lender of making or maintaining
its Eurodollar Loan during such Interest Period, or that reasonable means do not
exist for ascertaining the Adjusted LIBO Rate, the Administrative Agent shall,
as soon as practicable thereafter, give written or fax notice of such
determination to the Borrower and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, any request by the Borrower for a Eurodollar Borrowing pursuant to
Section 2.03 or 2.10 shall be deemed to be a request for an ABR Borrowing. Each
determination by the Administrative Agent under this Section 2.08 shall be
conclusive absent manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The Term Loan
Commitments shall automatically terminate upon the making of the Term Loans on
the Closing Date. The Revolving Credit Commitments and the Swingline Commitment
shall automatically terminate on the Revolving Credit Maturity Date. The L/C
Commitment shall automatically terminate on the earlier to occur of (i) the
termination of the Revolving Credit Commitments and (ii) the date 30 days prior
to the Revolving Credit Maturity Date. Notwithstanding the foregoing, all the
Commitments shall automatically terminate at 5:00 p.m., New York City time, on
August 20, 2004, if the initial Credit Event shall not have occurred by such
time.
(b) Upon at least three Business Days' prior written or fax notice (or
telephone notice promptly confirmed by written or fax notice) to the
Administrative Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Term Loan
Commitments or the Revolving Credit Commitments; provided, however, that (i)
each partial reduction of the Term Loan Commitments or the Revolving Credit
Commitments shall be in an integral multiple of $1,000,000 and in a minimum
amount of $5,000,000 and (ii) the Total Revolving Credit Commitment shall not be
reduced to an amount that is less than the sum of the Aggregate Revolving
Credit Exposure at the time. Each notice delivered by the Borrower pursuant to
this Section 2.09(b) shall be irrevocable; provided, however, that a notice of
termination of Revolving Credit Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date of such
other credit facilities) if such condition is not satisfied.
(c) Each reduction in the Term Loan Commitments or the Revolving Credit
Commitments hereunder shall be made ratably among the Lenders in accordance with
their respective applicable Commitments. The Borrower shall pay to the
Administrative Agent for the account of the applicable Lenders, on the date of
each termination or reduction, the Commitment Fees on the amount of the
Commitments so terminated or reduced accrued to but excluding the date of such
termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower shall
have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 12:00 (noon), New York City time, one
Business Day prior to conversion, to convert any Eurodollar Borrowing into an
ABR Borrowing, (b) not later than 1:00 p.m., New York City time, three Business
Days prior to conversion or continuation, to convert any ABR Borrowing into a
Eurodollar Borrowing or to continue any Eurodollar Borrowing as a Eurodollar
Borrowing for an additional Interest Period, and (c) not later than 1:00 p.m.,
New York City time, three Business Days prior to conversion, to convert the
Interest Period with respect to any Eurodollar Borrowing to another permissible
Interest Period, subject in each case to the following:
(i) the Borrower may not convert the Interest Period with respect to any
Eurodollar Borrowing made on the Closing Date prior to the last day of the
Interest Period in effect therefor;
(ii) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Borrowing;
(iii) if less than all the outstanding principal amount of any Borrowing
shall be converted or continued, then each resulting Borrowing shall satisfy the
limitations specified in Sections 2.02(a) and 2.02(b) regarding the
principal amount and maximum number of Borrowings of the relevant Type;
(iv) each conversion shall be effected by each Lender and the Administrative
Agent by recording for the account of such Lender the new Loan of such Lender
resulting from such conversion and reducing the Loan (or portion thereof) of
such Lender being converted by an equivalent principal amount; accrued interest
on any Eurodollar Loan (or portion thereof) being converted shall be paid by the
Borrower at the time of conversion;
(v) if any Eurodollar Borrowing is converted at a time other than the end of
the Interest Period applicable thereto, the Borrower shall pay, upon demand, any
amounts due to the Lenders pursuant to Section 2.16;
(vi) any portion of a Borrowing maturing or required to be repaid in less
than one month may not be converted into or continued as a Eurodollar Borrowing;
(vii) any portion of a Eurodollar Borrowing that cannot be converted into or
continued as a Eurodollar Borrowing by reason of the immediately preceding
clause shall be automatically converted at the end of the Interest Period in
effect for such Borrowing into an ABR Borrowing;
(viii) no Interest Period may be selected for any Eurodollar Term Borrowing
that would end later than a Repayment Date occurring on or after the first day
of such Interest Period if, after giving effect to such selection, the aggregate
outstanding amount of (A) the Eurodollar Term Borrowings with Interest Periods
ending on or prior to such Repayment Date and (B) the ABR Term Borrowings would
not be at least equal to the principal amount of Term Borrowings to be paid on
such Repayment Date; and
(ix) upon notice to the Borrower from the Administrative Agent given at the
request of the Required Lenders, after the occurrence and during the continuance
of an Event of Default, no outstanding Loan may be converted into, or
continued as, a Eurodollar Loan.
Each notice pursuant to this Section 2.10 shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the Borrowing
that the Borrower requests be converted or continued, (ii) whether such
Borrowing is to be converted to or continued as a Eurodollar Borrowing or an ABR
Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If the Borrower shall not have given notice in accordance
with this Section 2.10 to continue any Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this
Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into an ABR Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a) The Borrower shall pay to
the Administrative Agent, for the account of the Lenders, on the dates set forth
below, or if any such date is not a Business Day, on the next preceding
Business Day (each such date being called a "Repayment Date"), a principal
amount of the Term Loans (as adjusted from time to time pursuant to Sections
2.11(b), 2.12 and 2.13(f)) equal to the amount set forth below for such date,
together in each case with accrued and unpaid interest on the principal amount
to be paid to but excluding the date of such payment:
REPAYMENT DATE AMOUNT
-------------- ------
September 30, 2004 $443,750
December 31, 2004 $443,750
March 31, 2005 $443,750
June 30, 2005 $443,750
September 30, 2005 $443,750
December 31, 2005 $443,750
March 31, 2006 $443,750
June 30, 2006 $443,750
September 30, 2006 $443,750
December 31, 2006 $443,750
March 31, 2007 $443,750
June 30, 2007 $443,750
September 30, 2007 $443,750
December 31, 2007 $443,750
March 31, 2008 $443,750
June 30, 2008 $443,750
September 30, 2008 $443,750
December 31, 2008 $443,750
March 31, 2009 $443,750
June 30, 2009 $443,750
September 30, 2009 $443,750
December 31, 2009 $443,750
March 31, 2010 $443,750
June 30, 2010 $443,750
Term Loan Maturity Date $166,850,000
(b) In the event and on each occasion that the Term Loan Commitments shall
be reduced or shall expire or terminate other than as a result of the making of
a Term Loan, the installments payable on each Repayment Date shall be reduced
pro rata by an aggregate amount equal to the amount of such reduction,
expiration or termination.
(c) To the extent not previously paid, all Term Loans shall be due and
payable on the Term Loan Maturity Date, together with accrued and unpaid
interest on the principal amount to be paid to but excluding the date of
payment.
(d) All repayments pursuant to this Section 2.11 shall be subject to Section
2.16, but shall otherwise be without premium or penalty.
SECTION 2.12. Prepayment. (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part, upon at
least three Business Days' prior written or fax notice (or telephone notice
promptly confirmed by written or fax notice) in the case of Eurodollar Loans, or
written or fax notice (or telephone notice promptly confirmed by written or fax
notice) at least one Business Day prior to the date of prepayment in the case of
ABR Loans, to the Administrative Agent before 11:00 a.m., New York City time;
provided, however, that each partial prepayment shall be in an amount that is an
integral multiple of $500,000 and not less than $1,000,000.
(b) Optional prepayments of Term Loans shall be applied first, in
chronological order to the installments of principal in respect of the Terms
Loans scheduled to be paid within 12 months after such optional prepayment and
second, pro rata against the remaining scheduled installments of principal due
in respect of the Term Loans.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein; provided, however, that a
notice of prepayment delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date of such other credit
facilities) if such condition is not satisfied (it being understood and agreed
that upon receipt by the Administrative Agent of any such notice conditioned
upon the effectiveness of other credit facilities, all Loans will be converted
into ABR Loans and that Section 2.16 shall apply to such conversion). All
prepayments under this Section 2.12 shall be subject to Section 2.16 but
otherwise without premium or penalty. All prepayments under this Section 2.12
shall be accompanied by accrued and unpaid interest on the principal amount to
be prepaid to but excluding the date of payment.
SECTION 2.13. Mandatory Prepayments. (a) In the event of any termination
of all the Revolving Credit Commitments, the Borrower shall, on the date of such
termination, repay or prepay all its outstanding Revolving Credit
Borrowings and all outstanding Swingline Loans and replace (or make other
arrangements satisfactory to the Administrative Agent and the Issuing Bank with
respect to) all outstanding Letters of Credit. If as a result of any partial
reduction of the Revolving Credit Commitments the Aggregate Revolving Credit
Exposure would exceed the Total Revolving Credit Commitment after giving effect
thereto, then the Borrower shall, on the date of such reduction, repay or prepay
Revolving Credit Borrowings or Swingline Loans (or a combination thereof) and/or
replace (or make other arrangements satisfactory to the Administrative Agent and
the Issuing Bank with respect to) Letters of Credit in an amount sufficient to
eliminate such excess.
(b) Not later than the third Business Day following the receipt of Net Cash
Proceeds in respect of any Asset Sale, the Borrower shall apply 100% of the Net
Cash Proceeds received with respect thereto to prepay outstanding Term Loans in
accordance with Section 2.13(f).
(c) In the event and on each occasion that an Equity Issuance occurs, the
Borrower shall, substantially simultaneously with (and in any event not later
than the third Business Day next following) the occurrence of such Equity
Issuance, apply 50% of the Net Cash Proceeds therefrom to prepay outstanding
Term Loans in accordance with Section 2.13(f).
(d) No later than the earlier of (i) 95 days after the end of each fiscal
year of the Borrower, commencing with the fiscal year ending on December 31,
2005, and (ii) the fifth Business Day after the financial statements with
respect to such period are delivered pursuant to Section 5.04(a), the Borrower
shall prepay outstanding Term Loans in accordance with Section 2.13(f) in an
aggregate principal amount equal to 75% of Excess Cash Flow for the fiscal year
then ended; provided, however, that in the event the Leverage Ratio at the end
of such fiscal year was less than 3.00 to 1.00, then such amount shall be
reduced to 50% of such Excess Cash Flow.
(e) In the event that any Loan Party or any subsidiary of a Loan Party shall
receive Net Cash Proceeds from the issuance or other disposition of Indebtedness
for money borrowed of any Loan Party or any subsidiary of a Loan Party (other
than any cash proceeds from the issuance of Indebtedness for money borrowed
permitted pursuant to Section 6.01), the Borrower shall, substantially
simultaneously with (and in any event not later than the third Business Day next
following) the receipt of such Net Cash Proceeds by such Loan Party or such
subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay
outstanding Term Loans in accordance with Section 2.13(f).
(f) Mandatory prepayments of outstanding Term Loans under this Agreement
shall be applied first, in chronological order to the installments of principal
in respect of Term Loans scheduled to be paid within 12 months after such
mandatory prepayment and second, pro rata against the remaining scheduled
installments of principal due in respect of the Term Loans.
(g) The Borrower shall deliver to the Administrative Agent, at the time of
each prepayment required under this Section 2.13, (i) a certificate signed by a
Financial Officer of the Borrower setting forth in reasonable detail the
calculation of the amount of such prepayment and (ii) to the extent practicable,
at least three days prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date, the Type of each Loan being
prepaid and the principal amount of each Loan (or portion thereof) to be
prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject
to Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if any Change in Law
(other than any Change in Law that relates to Taxes) shall impose, modify or
deem applicable any reserve, special deposit or similar requirement against
assets of, deposits with or for the account of or credit extended by any Lender
or the Issuing Bank (except any such reserve requirement which is reflected in
the Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or
the London interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or participation
therein, and the result of any of the foregoing shall be to increase the cost to
such Lender or the Issuing Bank of making or maintaining any Eurodollar
Loan or increase the cost to any Lender of issuing or maintaining any Letter of
Credit or purchasing or maintaining a participation therein or to reduce the
amount of any sum received or receivable by such Lender or the Issuing Bank
hereunder (whether of principal, interest or otherwise) by an amount deemed by
such Lender or the Issuing Bank to be material, then the Borrower will pay to
such Lender or the Issuing Bank, as the case may be, upon demand such additional
amount or amounts as will compensate such Lender or the Issuing Bank, as the
case may be, for such additional costs incurred or reduction suffered, except to
the extent that such Lender or the Issuing Bank is compensated pursuant to
Section 2.20.
(b) If any Lender or the Issuing Bank shall have determined that any Change
in Law regarding capital adequacy has or would have the effect of reducing the
rate of return on such Lender's or the Issuing Bank's capital or on the capital
of such Lender's or the Issuing Bank's holding company, if any, as a consequence
of this Agreement or the Loans made or participations in Letters of Credit
purchased by such Lender pursuant hereto or the Letters of Credit issued by the
Issuing Bank pursuant hereto to a level below that which such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
the Issuing Bank's policies and the policies of such Lender's or the Issuing
Bank's holding company with respect to capital adequacy) by an amount deemed by
such Lender or the Issuing Bank to be material, then from time to time the
Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank
or such Lender's or the Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as applicable, as specified in paragraph (a) or (b) above shall
be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender or the Issuing Bank the amount shown as due on
any such certificate delivered by it within 10 days after its receipt of the
same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand
compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be under any obligation to compensate any Lender or
the Issuing Bank under paragraph (a) or (b) above with respect to increased
costs or reductions with respect to any period prior to the date that is 120
days prior to such request if such Lender or the Issuing Bank knew or could
reasonably have been expected to know of the circumstances giving rise to such
increased costs or reductions and of the fact that such circumstances would
result in a claim for increased compensation by reason of such increased costs
or reductions; provided further that the foregoing limitation shall not apply to
any increased costs or reductions arising out of the retroactive application of
any Change in Law within such 120-day period. The protection of this Section
shall be available to each Lender and the Issuing Bank regardless of any
possible contention of the invalidity or inapplicability of the Change in Law
that shall have occurred or been imposed.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other provision
of this Agreement, if any Change in Law shall make it unlawful for any Lender to
make or maintain any Eurodollar Loan or to give effect to its obligations
as contemplated hereby with respect to any Eurodollar Loan, then, by written
notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not thereafter (for
the duration of such unlawfulness) be made by such Lender hereunder (or be
continued for additional Interest Periods and ABR Loans will not thereafter (for
such duration) be converted into Eurodollar Loans), whereupon any request
for a Eurodollar Borrowing (or to convert an ABR Borrowing to a Eurodollar
Borrowing or to continue a Eurodollar Borrowing for an additional Interest
Period) shall, as to such Lender only, be deemed a request for an ABR Loan (or a
request to continue an ABR Loan as such or to convert a Eurodollar Loan into an
ABR Loan, as the case may be), unless such declaration shall be subsequently
withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar Loans made by
it be converted to ABR Loans, in which event all such Eurodollar Loans shall be
automatically converted to ABR Loans as of the effective date of such notice as
provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period then applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender against
any loss or expense that such Lender may sustain or incur as a consequence of
(a) any event, other than a default by such Lender in the performance of its
obligations hereunder, which results in (i) such Lender receiving or being
deemed to receive any amount on account of the principal of any Eurodollar Loan
prior to the end of the Interest Period in effect therefor, (ii) the conversion
of any Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period
with respect to any Eurodollar Loan, in each case other than on the last day of
the Interest Period in effect therefor, or (iii) any Eurodollar Loan to be made
by such Lender (including any Eurodollar Loan to be made pursuant to a
conversion or continuation under Section 2.10) not being made after notice of
such Loan shall have been given by the Borrower hereunder (any of the events
referred to in this clause (a) being called a "Breakage Event") or (b) any
default in the making of any payment or prepayment required to be made
hereunder. In the case of any Breakage Event, such loss shall include an amount
equal to the excess, as reasonably determined by such Lender, of (i) its
cost of obtaining funds for the Eurodollar Loan that is the subject of such
Breakage Event for the period from the date of such Breakage Event to the last
day of the Interest Period in effect (or that would have been in effect) for
such Loan over (ii) the amount of interest likely to be realized by such Lender
in redeploying the funds released or not utilized by reason of such Breakage
Event for such period. A certificate of any Lender setting forth any amount or
amounts which such Lender is entitled to receive pursuant to this Section 2.16
shall be delivered to the Borrower and shall be conclusive absent manifest
error.
SECTION 2.17. Pro Rata Treatment. Except as provided below in this Section
2.17 with respect to Swingline Loans and as required under Section 2.15, each
Borrowing, each payment or prepayment of principal of any Borrowing, each
payment of interest on the Loans, each payment of the Commitment Fees, each
reduction of the Term Loan Commitments or the Revolving Credit Commitments and
each conversion of any Borrowing to or continuation of any Borrowing as a
Borrowing of any Type shall be allocated pro rata among the Lenders in
accordance with their respective applicable Commitments (or, if such Commitments
shall have expired or been terminated, in accordance with the respective
principal amounts of their outstanding Loans). For purposes of determining the
available Revolving Credit Commitments of the Lenders at any time, each
outstanding Swingline Loan shall be deemed to have utilized the Revolving Credit
Commitments of the Lenders (including those Lenders which shall not have made
Swingline Loans) pro rata in accordance with such respective Revolving Credit
Commitments. Each Lender agrees that in computing such Lender's portion of any
Borrowing to be made hereunder, the Administrative Agent may, in its discretion,
round each Lender's percentage of such Borrowing to the next higher or lower
whole dollar amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or Loans or L/C Disbursement as a result of which the unpaid principal
portion of its Loans and participations in L/C Disbursements shall be
proportionately less than the unpaid principal portion of the Loans and
participations in L/C Disbursements of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and shall
promptly pay to such other Lender the purchase price for, a participation in the
Loans and L/C Exposure of such other Lender, so that the aggregate unpaid
principal amount of the Loans and L/C Exposure and participations in Loans and
L/C Exposure held by each Lender shall be in the same proportion to the
aggregate unpaid principal amount of all Loans and L/C Exposure then outstanding
as the principal amount of its Loans and L/C Exposure prior to such exercise of
banker's lien, setoff or counterclaim or other event was to the principal amount
of all Loans and L/C Exposure outstanding prior to such exercise of banker's
lien, setoff or counterclaim or other event; provided, however, that if any such
purchase or purchases or adjustments shall be made pursuant to this Section 2.18
and the payment giving rise thereto shall thereafter be recovered, such purchase
or purchases or adjustments shall be rescinded to the extent of such recovery
and the purchase price or prices or adjustment restored without interest. The
Borrower and Holdings expressly consent to the foregoing arrangements and agree
that any Lender holding a participation in a Loan or L/C Disbursement deemed to
have been so purchased may exercise any and all rights of banker's lien, setoff
or counterclaim with respect to any and all moneys owing by the Borrower and
Holdings to such Lender by reason thereof as fully as if such Lender had made a
Loan directly to the Borrower in the amount of such participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and under any other Loan Document not later
than 1:00 p.m., New York City time, on the date when due in immediately
available dollars, without setoff, defense or counterclaim. Each such payment
(other than (i) Issuing Bank Fees, which shall be paid directly to the Issuing
Bank, and (ii) principal of and interest on Swingline Loans, which shall be paid
directly to the Swingline Lender except as otherwise provided in Section
2.22(e)) shall be made to the Administrative Agent at its offices at Eleven
Madison Avenue, New York, New York 10010. The Administrative Agent shall
distribute any such payments received by it for the account of any other person
to the appropriate recipient promptly following receipt thereof.
(b) Except as otherwise expressly provided herein, whenever any payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder or under any other Loan Document shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment shall
be made on the next preceding Business Day.
SECTION 2.20. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower or any other Loan Party hereunder or under any other
Loan Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower or any other
Loan Party shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, such
Lender or the Issuing Bank (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
or such Loan Party shall make such deductions and (iii) the Borrower or such
Loan Party shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender and
the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to
any payment by or on account of any obligation of the Borrower or any other Loan
Party hereunder or under any other Loan Document (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its behalf or on behalf of a Lender or the Issuing Bank,
shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower or any other Loan Party to a Governmental Authority, the
Borrower shall deliver to the Administrative Agent the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such payment,
a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Each Foreign Lender shall deliver to the Borrower and the Administrative
Agent, on or before the date on which such Foreign Lender becomes a Lender under
this Agreement, either:
(i) two duly completed and signed copies of either Internal Revenue Service
Form W-8BEN (claiming a complete exemption from U.S. withholding tax under an
applicable treaty) or its successor form or Form W-8ECI (claiming a complete
exemption from U.S. withholding tax as effectively connected income) or its
successor form and related applicable forms, as the case may be; or
(ii) in the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under Section 881(c) of the Code, (x) a certificate to
the effect that such Foreign Lender is not (A) a "bank" within the meaning of
Section 881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of the Borrower
within the meaning of Section 881(c)(3)(B) of the Code, or (C) a
"controlled foreign corporation" described in Section 881(c)(3)(C) of the Code,
and (y) two duly completed and signed copies of Internal Revenue Service Form
W-8BEN or its successor form and related applicable forms;
provided, however, that, in the case of a Foreign Lender that becomes a Lender
under this Agreement pursuant to a transfer of interest under Section 9.04, such
Foreign Lender's obligation to deliver such documentation to the Borrower shall
not apply to the extent that the transferor of such interest was entitled to
receive additional amounts from the Borrower under this Section 2.20. Further,
each Foreign Lender agrees to deliver to the Borrower and the Administrative
Agent two further duly completed and signed copies of the above referenced
forms, or successor and related applicable forms, on or before the date that any
such form expires or becomes obsolete and promptly after the occurrence of any
event requiring a change from the most recent form(s) previously delivered by it
in accordance with applicable U.S. laws and regulations and to deliver promptly
to the Borrower and the Administrative Agent such additional statements and
forms as shall be reasonably requested by Borrower from time to time unless, in
any such case, any change in law or regulation has occurred subsequent to the
date such Foreign Lender became a party to this Agreement which renders all such
forms inapplicable or which would prevent such Lender from properly completing
and executing any such form with respect to it and such Lender promptly notifies
the Borrower and the Administrative Agent if it is no longer able to deliver, or
if it is required to withdraw or cancel, any form or statement previously
delivered by it pursuant to this Section 2.20(e).
(f) If the Administrative Agent, the Issuing Bank or a Lender determines, in
its sole discretion, that it has received a refund of any Indemnified Taxes
or Other Taxes as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this
Section 2.20, it shall pay over such refund to the Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrower
under this Section 2.20 with respect to the Indemnified Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent, the Issuing Bank or such Lender and without interest
(other than any interest paid by the relevant Governmental Authority with
respect to such refund), provided that the Borrower, upon the request of the
Administrative Agent, the Issuing Bank or such Lender, agrees to repay the
amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent, the
Issuing Bank or such Lender in the event the Administrative Agent, the Issuing
Bank or such Lender is required to repay such refund to such Governmental
Authority. This Section shall not be construed to require the Administrative
Agent, the Issuing Bank or any Lender to make available its Tax returns (or any
other information relating to its Taxes which it deems confidential) to the
Borrower or any other person.
SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to
Mitigate. (a) In the event (i) any Lender or the Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
the Issuing Bank delivers a notice described in Section 2.15, (iii) the Borrower
is required to pay any additional amount to any Lender or the Issuing Bank or
any Governmental Authority on account of any Lender or the Issuing Bank pursuant
to Section 2.20 or (iv) any Lender refuses to consent to any amendment, waiver
or other modification of any Loan Document requested by the Borrower that
requires the consent of a greater percentage of the Lenders than the Required
Lenders and such amendment, waiver or other modification is consented to by the
Required Lenders, the Borrower may, at its sole expense and effort (including
with respect to the processing and recordation fee referred to in Section
9.04(b)), upon notice to such Lender or the Issuing Bank and the Administrative
Agent, require such Lender or the Issuing Bank to transfer and assign, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all of its interests, rights and obligations under this Agreement
(or, in the case of clause (iv) above, all of its interests, rights and
obligations with respect to the Class of Loans or Commitments that is the
subject of the related consent, amendment, waiver or other modification) to an
assignee that shall assume such assigned obligations and, with respect to clause
(iv) above, shall consent to such requested amendment, waiver or other
modification of any Loan Document (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (w) in the case of an assignment
resulting from a claim for compensation under Section 2.14 or payments required
to be made pursuant to Section 2.20, such assignment will result in such
compensation or payments, (x) such assignment shall not conflict with any law,
rule or regulation or order of any court or other Governmental Authority having
jurisdiction, (y) the Borrower shall have received the prior written consent of
the Administrative Agent (and, if a Revolving Credit Commitment is being
assigned, of the Issuing Bank and the Swingline Lender), which consent shall not
unreasonably be withheld, and (z) the Borrower or such assignee shall have paid
to the affected Lender or the Issuing Bank in immediately available funds an
amount equal to the sum of the principal of and interest accrued to the date of
such payment on the outstanding Loans or L/C Disbursements of such Lender or the
Issuing Bank, respectively, plus all Fees and other amounts accrued for the
account of such Lender or the Issuing Bank hereunder (including any amounts
under Section 2.14 and Section 2.16); provided further that, if prior to any
such transfer and assignment the circumstances or event that resulted in such
Lender's or the Issuing Bank's claim for compensation under Section 2.14 or
notice under Section 2.15 or the amounts paid pursuant to Section 2.20, as the
case may be, cease to cause such Lender or the Issuing Bank to suffer increased
costs or reductions in amounts received or receivable or reduction in return on
capital, or cease to have the consequences specified in Section 2.15, or cease
to result in amounts being payable under Section 2.20, as the case may be
(including as a result of any action taken by such Lender or the Issuing Bank
pursuant to paragraph (b) below), or if such Lender or the Issuing Bank shall
waive its right to claim further compensation under Section 2.14 in respect of
such circumstances or event or shall withdraw its notice under Section 2.15 or
shall waive its right to further payments under Section 2.20 in respect of such
circumstances or event or shall consent to the proposed amendment, waiver,
consent or other modification, as the case may be, then such Lender or the
Issuing Bank shall not thereafter be required to make any such transfer and
assignment hereunder. Each Lender hereby grants to the Administrative Agent an
irrevocable power of attorney (which power is coupled with an interest) to
execute and deliver, on behalf of such Lender as assignor, any Assignment and
Acceptance necessary to effectuate any assignment of such Lender's interests
hereunder in the circumstances contemplated by this Section 2.21(a).
(b) If (i) any Lender or the Issuing Bank shall request compensation under
Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice described in
Section 2.15 or (iii) the Borrower is required to pay any additional amount
to any Lender or the Issuing Bank or any Governmental Authority on account of
any Lender or the Issuing Bank, pursuant to Section 2.20, then such Lender or
the Issuing Bank shall use reasonable efforts (which shall not require such
Lender or the Issuing Bank to incur an unreimbursed loss or unreimbursed cost or
expense or otherwise take any action inconsistent with its internal policies or
legal or regulatory restrictions or suffer any disadvantage or burden deemed by
it to be significant) (x) to file any certificate or document reasonably
requested in writing by the Borrower or (y) to assign its rights and delegate
and transfer its obligations hereunder to another of its offices, branches or
affiliates, if such filing or assignment would reduce its claims for
compensation under Section 2.14 or enable it to withdraw its notice pursuant to
Section 2.15 or would reduce amounts payable pursuant to Section 2.20, as the
case may be, in the future. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender or the Issuing Bank in connection with
any such filing or assignment, delegation and transfer.
SECTION 2.22. Swingline Loans. (a) Swingline Commitment. Subject to the
terms and conditions and relying upon the representations and warranties herein
set forth, the Swingline Lender agrees to make loans to the Borrower at any time
and from time to time on and after the Closing Date and until the earlier
of the Revolving Credit Maturity Date and the termination of the Revolving
Credit Commitments in accordance with the terms hereof, in an aggregate
principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of all Swingline Loans exceeding $5,000,000 in the
aggregate or (ii) the Aggregate Revolving Credit Exposure, after giving effect
to any Swingline Loan, exceeding the Total Revolving Credit Commitment. Each
Swingline Loan shall be in a principal amount that is an integral multiple of
$250,000. The Swingline Commitment may be terminated or reduced from time to
time as provided herein. Within the foregoing limits, the Borrower may borrow,
pay or prepay and reborrow Swingline Loans hereunder, subject to the terms,
conditions and limitations set forth herein.
(b) Swingline Loans. The Borrower shall notify the Swingline Lender and the
Administrative Agent by fax, or by telephone (confirmed by fax), not later
than 1:00 p.m., New York City time, on the day of a proposed Swingline Loan.
Such notice shall be delivered on a Business Day, shall be irrevocable and shall
refer to this Agreement and shall specify the requested date (which shall be a
Business Day) and amount of such Swingline Loan and the wire transfer
instructions for the account of the Borrower to which the proceeds of the
Swingline Loan should be transferred. The Swingline Lender shall make each
Swingline Loan by wire transfer to the account specified in such request.
(c) Prepayment. The Borrower shall have the right at any time and from time
to time to prepay any Swingline Loan, in whole or in part, upon giving written
or fax notice (or telephone notice promptly confirmed by written or fax notice)
to the Swingline Lender and to the Administrative Agent before 12:00 (noon), New
York City time, on the date of prepayment at the Swingline Lender's address for
notices specified on Schedule 2.01.
(d) Interest. Each Swingline Loan shall be an ABR Loan and, subject to the
provisions of Section 2.07, shall bear interest as provided in Section 2.06(a).
(e) Participations. The Swingline Lender may by written notice given to the
Administrative Agent not later than 1:00 p.m., New York City time, on any
Business Day require the Revolving Credit Lenders to acquire participations on
such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Revolving
Credit Lenders will participate. The Administrative Agent will, promptly upon
receipt of such notice, give notice to each Revolving Credit Lender, specifying
in such notice such Lender's Pro Rata Percentage of such Swingline Loan or
Loans. In furtherance of the foregoing, each Revolving Credit Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Revolving Credit Lender's Pro Rata Percentage of such Swingline Loan or
Loans. Each Revolving Credit Lender acknowledges and agrees that its obligation
to acquire participations in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or an Event of
Default, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Revolving Credit Lender shall comply
with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.02(c) with respect
to Loans made by such Lender (and Section 2.02(c) shall apply, mutatis mutandis,
to the payment obligations of the Lenders) and the Administrative Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the
Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower (or other person on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders that
shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear. The purchase of participations in a
Swingline Loan pursuant to this paragraph shall not relieve the Borrower (or
other person liable for obligations of the Borrower) of any default in the
payment thereof.
SECTION 2.23. Letters of Credit. (a) General. The Borrower may request the
issuance of a Letter of Credit for its own account or for the account of
any of its wholly owned Subsidiaries (in which case the Borrower and such wholly
owned Subsidiary shall be co-applicants with respect to such Letter of Credit),
in a form reasonably acceptable to the Administrative Agent and the Issuing
Bank, at any time and from time to time while the L/C Commitment remains in
effect. This Section shall not be construed to impose an obligation upon the
Issuing Bank to issue any Letter of Credit that is inconsistent with the terms
and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
In order to request the issuance of a Letter of Credit (or to amend, renew or
extend an existing Letter of Credit), the Borrower shall hand deliver or fax to
the Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting
the issuance of a Letter of Credit, or identifying the Letter of Credit to
be amended, renewed or extended, the date of issuance, amendment, renewal or
extension, the date on which such Letter of Credit is to expire (which shall
comply with paragraph (c) below), the amount of such Letter of Credit, the name
and address of the beneficiary thereof and such other information as shall be
necessary to prepare such Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if, and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that, after giving effect to such issuance, amendment, renewal or
extension (i) the L/C Exposure shall not exceed $15,000,000 and (ii) the
Aggregate Revolving Credit Exposure shall not exceed the Total Revolving Credit
Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the earlier of the date one year after the date of the issuance of
such Letter of Credit and the date that is five Business Days prior to the
Revolving Credit Maturity Date, unless such Letter of Credit expires by its
terms on an earlier date; provided, however, that a Letter of Credit may, upon
the request of the Borrower, include a provision whereby such Letter of Credit
shall be renewed automatically for additional consecutive periods of 12 months
or less (but not beyond the date that is five Business Days prior to the
Revolving Credit Maturity Date) unless the Issuing Bank notifies the beneficiary
thereof at least 30 days prior to the then-applicable expiration date that
such Letter of Credit will not be renewed.
(d) Participations. By the issuance of a Letter of Credit and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Credit Lender, and each such Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Pro Rata Percentage of the aggregate amount available to be
drawn under such Letter of Credit, effective upon the issuance of such Letter of
Credit. In consideration and in furtherance of the foregoing, each Revolving
Credit Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such Lender's Pro
Rata Percentage of each L/C Disbursement made by the Issuing Bank and not
reimbursed by the Borrower (or, if applicable, another person pursuant to its
obligations under any other Loan Document) forthwith on the date due as provided
in Section 2.02(f). Each Revolving Credit Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this paragraph in respect
of Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including the occurrence and continuance of a
Default or an Event of Default, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, the Borrower shall pay to the Administrative
Agent an amount equal to such L/C Disbursement not later than two hours after
the Borrower shall have received notice from the Issuing Bank that payment of
such draft will be made, or, if the Borrower shall have received such notice
later than 10:00 a.m., New York City time, on any Business Day, not later than
10:00 a.m., New York City time, on the immediately following Business Day.
(f) Obligations Absolute. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit or any
Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all or any
of the provisions of any Letter of Credit or any Loan Document;
(iii) the existence of any claim, setoff, defense or other right that the
Borrower, any other person guaranteeing, or otherwise obligated with, the
Borrower, any Subsidiary or other Affiliate thereof or any other person may at
any time have against the beneficiary under any Letter of Credit, the Issuing
Bank, the Administrative Agent or any Lender or any other person, whether in
connection with this Agreement, any other Loan Document or any other related or
unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit proving
to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(v) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the terms of
such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of the Issuing
Bank, any Lender, the Administrative Agent or any other person or any other
event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of the Borrower's obligations hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of the Issuing Bank. However, the
foregoing shall not be construed to excuse the Issuing Bank from liability to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
the Issuing Bank's gross negligence or wilful misconduct in determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof; it is understood that the Issuing Bank may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary and, in
making any payment under any Letter of Credit (i) the Issuing Bank's exclusive
reliance on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due to the
beneficiary thereunder equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be insufficient
in any respect, if such document on its face appears to be in order, and whether
or not any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement therein proves
to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance
in any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of the Issuing Bank.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall as promptly as
possible give telephonic notification, confirmed by fax, to the Administrative
Agent and the Borrower of such demand for payment and whether the Issuing Bank
has made or will make an L/C Disbursement thereunder; provided that any failure
to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Revolving Credit Lenders with
respect to any such L/C Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, then, unless the Borrower shall reimburse such
L/C Disbursement in full on such date, the unpaid amount thereof shall bear
interest for the account of the Issuing Bank, for each day from and including
the date of such L/C Disbursement, to but excluding the earlier of the date of
payment by the Borrower or the date on which interest shall commence to accrue
thereon as provided in Section 2.02(f), at the rate per annum that would apply
to such amount if such amount were an ABR Revolving Loan.
(i) Resignation or Removal of the Issuing Bank. The Issuing Bank may resign
at any time by giving 30 days' prior written notice to the Administrative Agent,
the Lenders and the Borrower, and may be removed at any time by the Borrower by
notice to the Issuing Bank, the Administrative Agent and the Lenders. Upon the
acceptance of any appointment as the Issuing Bank hereunder by a Lender that
shall agree to serve as successor Issuing Bank, such successor shall succeed to
and become vested with all the interests, rights and obligations of the retiring
Issuing Bank and the retiring Issuing Bank shall be discharged from its
obligations to issue additional Letters of Credit hereunder. At the time such
removal or resignation shall become effective, the Borrower shall pay all
accrued and unpaid fees pursuant to Section 2.05(c)(ii). The acceptance of any
appointment as the Issuing Bank hereunder by a successor Lender shall be
evidenced by an agreement entered into by such successor, in a form satisfactory
to the Borrower and the Administrative Agent, and, from and after the effective
date of such agreement, (i) such successor Lender shall have all the rights and
obligations of the previous Issuing Bank under this Agreement and the other Loan
Documents and (ii) references herein and in the other Loan Documents to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the resignation or removal of the Issuing Bank
hereunder, the retiring Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement and the other Loan Documents with respect to Letters of Credit issued
by it prior to such resignation or removal, but shall not be required to issue
additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Credit Lenders holding participations in
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit) thereof and of the amount
to be deposited, deposit in an account with the Collateral Agent, for the
benefit of the Revolving Credit Lenders, an amount in cash equal to the L/C
Exposure as of such date. Such deposit shall be held by the Collateral Agent as
collateral for the payment and performance of the Obligations. The
Collateral Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest
earned on the investment of such deposits in Permitted Investments, which
investments shall be made at the option and sole discretion of the Collateral
Agent, such deposits shall not bear interest. Interest or profits, if any, on
such investments shall accumulate in such account. Moneys in such account shall
(i) automatically be applied by the Administrative Agent to reimburse the
Issuing Bank for L/C Disbursements for which it has not been reimbursed, (ii) be
held for the satisfaction of the reimbursement obligations of the Borrower for
the L/C Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Credit Lenders holding
participations in outstanding Letters of Credit representing greater than 50% of
the aggregate undrawn amount of all outstanding Letters of Credit), be applied
to satisfy the Obligations. If the Borrower is required to provide an amount of
cash collateral hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be returned to the
Borrower within three Business Days after all Events of Default have been cured
or waived.
(k) Additional Issuing Banks. The Borrower may, at any time and from time
to time with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld) and such Lender, designate one or more additional Lenders
to act as an issuing bank under the terms of this Agreement. Any Lender
designated as an issuing bank pursuant to this paragraph (k) shall be deemed to
be an "Issuing Bank" (in addition to being a Lender) in respect of Letters of
Credit issued or to be issued by such Lender, and, with respect to such Letters
of Credit, such term shall thereafter apply to the other Issuing Bank and such
Lender.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrower represents and warrants to the
Administrative Agent, the Collateral Agent, the Issuing Bank and each of the
Lenders that:
SECTION 3.01. Organization; Powers. Holdings, the Borrower and each of the
Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has all requisite power
and authority to own its property and assets and to carry on its business as now
conducted and as proposed to be conducted, (c) is qualified to do business
in, and is in good standing in, every jurisdiction where such qualification is
required, except where the failure so to qualify could not reasonably be
expected to result in a Material Adverse Effect, and (d) has the power and
authority to execute, deliver and perform its obligations under each of the Loan
Documents and each other agreement or instrument contemplated thereby to which
it is or will be a party and, in the case of the Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by
each Loan Party of each of the Loan Documents and the transactions contemplated
hereby and thereby (including the borrowings hereunder, the Self Tender, the
repayment of all amounts outstanding or due under, and the termination of, the
Existing Credit Agreement and the payment of related fees and expenses)
(collectively, the "Transactions") (a) have been duly authorized by all
requisite corporate and, if required, stockholder action and (b) will not (i)
violate (A) any provision of law, statute, rule or regulation in any material
respect, or of the certificate or articles of incorporation or other
constitutive documents or by-laws of Holdings, the Borrower or any Subsidiary,
(B) any order of any Governmental Authority or (C) in any material respect, any
provision of any material indenture, agreement or other instrument to which
Holdings, the Borrower or any Subsidiary is a party or by which any of them or
any material portion of their property is or may be bound, (ii) be in conflict
with, result in a breach of or constitute (alone or with notice or lapse of time
or both) a default under, or give rise to any right to accelerate or to
require the prepayment, repurchase or redemption of any obligation under any
such indenture, agreement or other instrument or (iii) result in the creation or
imposition of any Lien upon or with respect to any property or assets now owned
or hereafter acquired by Holdings, the Borrower or any Subsidiary (other than
any Lien created hereunder or under the Security Documents).
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by Holdings and the Borrower and constitutes, and each other Loan
Document when executed and delivered by each Loan Party party thereto will
constitute, a legal, valid and binding obligation of such Loan Party enforceable
against such Loan Party in accordance with its terms, subject to (a) the
effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent
conveyance or other similar laws affecting creditors' rights generally, (b)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (c) implied covenants of
good faith and fair dealing.
SECTION 3.04. Governmental Approvals. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the Transactions, except for (a) the
filing of Uniform Commercial Code financing statements and filings with the
United States Patent and Trademark Office and the United States Copyright
Office, (b) recordation of the Mortgages, (c) the filing with the Securities and
Exchange Commission of the Issuer Tender Offer Statement and any amendments
thereto and (d) such as have been made or obtained and are in full force and
effect or which are not material to the consummation of the Transactions.
SECTION 3.05. Financial Statements. (a) Holdings has heretofore furnished
to the Lenders its consolidated balance sheets and related statements of income,
stockholder's equity and cash flows (i) as of and for the fiscal year ended
December 31, 2003, audited by and accompanied by the opinion of
PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and
for the fiscal quarter and the portion of the fiscal year ended June 30, 2004,
certified by its chief financial officer. Such financial statements present
fairly the financial condition and results of operations and cash flows of
Holdings and its consolidated subsidiaries as of such dates and for such
periods. Such balance sheets and the notes thereto disclose all material
liabilities, direct or contingent, of Holdings and its consolidated subsidiaries
as of the dates thereof. Such financial statements were prepared in accordance
with GAAP applied on a consistent basis.
(b) Holdings has heretofore delivered to the Lenders its unaudited pro forma
consolidated balance sheet and related statements of income and cash flows
as of June 30, 2004, prepared giving effect to the Transactions as if they had
occurred, with respect to such balance sheet, on such date and, with respect to
such other financial statements, on the first day of the 12-month period ending
on such date. Such pro forma financial statements (i) have been prepared in
good faith by Holdings, based on the assumptions used to prepare the pro forma
financial information contained in the Confidential Information Memorandum
(which assumptions are believed by the Borrower on the date hereof and on the
Closing Date to be reasonable (it being understood that such assumptions are
based on good faith estimates with respect to certain items and that the actual
amounts of such items on the Closing Date are subject to variation)), (ii) are
based on the best information available to Holdings as of the date of delivery
thereof and (iii) subject to the assumptions and qualifications described in the
Confidential Information Memorandum, accurately reflect all adjustments
required to be made to give effect to the Transactions and present fairly in all
material respects on a pro forma basis the estimated consolidated financial
position of Holdings and its consolidated subsidiaries as of such date and for
such period, assuming that the Transactions had actually occurred at such date
or at the beginning of such period, as the case may be.
SECTION 3.06. No Material Adverse Change. No event, change or condition has
occurred that has had, or could reasonably be expected to have, a material
adverse effect on the business, assets, liabilities, financial condition or
results of operations of Holdings, the Borrower and the Subsidiaries, taken as a
whole, since December 31, 2003.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of
Holdings, the Borrower and the Subsidiaries has good and marketable title to, or
valid leasehold interests in, all its material properties and assets
(including all Mortgaged Property), except for minor defects in title that do
not interfere with its ability to conduct its business as currently conducted or
to utilize such properties and assets for their intended purposes. All such
material properties and assets are free and clear of Liens, other than Liens
expressly permitted by Section 6.02.
(b) Each of Holdings, the Borrower and the Subsidiaries has complied in all
material respects with all obligations under all material leases to which it is
a party and all such leases are in full force and effect. Each of Holdings, the
Borrower and the Subsidiaries enjoys peaceful and undisturbed possession
under all such material leases.
(c) Neither Holdings nor the Borrower has received any notice of, nor has
any knowledge of, any pending or contemplated condemnation proceeding affecting
the Mortgaged Properties or any sale or disposition thereof in lieu of
condemnation.
(d) None of Holdings, the Borrower or any of the Subsidiaries is obligated
under any right of first refusal, option or other contractual right to sell,
assign or otherwise dispose of any Mortgaged Property or any interest therein.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing Date
a list of all Subsidiaries and the direct or indirect percentage ownership
interest of Holdings or the Borrower therein. The shares of capital stock or
other ownership interests so indicated on Schedule 3.08 are fully paid and
non-assessable and are owned by Holdings or the Borrower, directly or
indirectly, free and clear of all Liens (other than Liens created under the
Security Documents).
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth on
Schedule 3.09, there are no actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of Holdings or the Borrower, threatened against or affecting Holdings
or the Borrower or any Subsidiary or any business, property or rights of any
such person (i) that involve any Loan Document or the Transactions or (ii) as to
which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect.
(b) Since the date of this Agreement, there has been no change in the status
of the matters disclosed on Schedule 3.09 that, individually or in the
aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
(c) None of Holdings, the Borrower or any of the Subsidiaries or any of
their respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation (including any zoning, building,
ordinance, code or approval or any building permits) or any restrictions of
record or agreements affecting the Mortgaged Property, or is in default with
respect to any judgment, writ, injunction, decree or order of any Governmental
Authority, where such violation or default could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.10. Agreements. (a) None of Holdings, the Borrower or any of the
Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(b) None of Holdings, the Borrower or any of the Subsidiaries is in default
in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) None of Holdings, the
Borrower or any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the Regulations of the Board, including Regulation
T, U or X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act.
None of Holdings, the Borrower or any Subsidiary is (a) an "investment company"
as defined in, or subject to regulation under, the Investment Company Act of
1940 or (b) a "holding company" as defined in, or subject to regulation under,
the Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of the
Loans and will request the issuance of Letters of Credit only for the purposes
specified in the preamble to this Agreement.
SECTION 3.14. Tax Returns. Each of Holdings, the Borrower and the
Subsidiaries has filed or caused to be filed all Federal and all material state,
local and foreign Tax returns or materials required to have been filed by it and
has paid or caused to be paid all material Taxes shown thereon to be due and
payable by it and all material assessments received by it, except Taxes that are
being contested in good faith by appropriate proceedings and for which Holdings,
the Borrower or such Subsidiary, as applicable, has set aside on its books
adequate reserves.
SECTION 3.15. No Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule furnished by or on behalf of Holdings or the
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto, when taken as a whole, contained, contains or will contain any material
misstatement of fact or omitted, omits or will omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were, are or will be made, not misleading; provided that to the
extent any such information, report, financial statement, exhibit or schedule
was based upon or constitutes a forecast or projection, each of Holdings and the
Borrower represents only that it acted in good faith and utilized reasonable
assumptions and due care in the preparation of such information, report,
financial statement, exhibit or schedule.
SECTION 3.16. Employee Benefit Plans. Except as set forth on Schedule 3.16,
each of the Borrower and its ERISA Affiliates is in compliance in all material
respects with the applicable provisions of ERISA and the Code and the
regulations and published interpretations thereunder. No ERISA Event has
occurred or is reasonably expected to occur that, when taken together with all
other such ERISA Events, could reasonably be expected to result in material
liability of the Borrower or any of its ERISA Affiliates.
SECTION 3.17. Environmental Matters. (a) Except as set forth on Schedule
3.17 and except with respect to any other matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, none of Holdings, the Borrower or any of the Subsidiaries (i) has failed
to comply with any Environmental Law (nor will the continued operation of their
material properties and assets as currently conducted violate any Environmental
Law) or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received notice of any claim with respect to
any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(b) Since the date of this Agreement, there has been no change in the status
of the matters disclosed on Schedule 3.17 that, individually or in the
aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and
correct summary description of all insurance maintained by the Borrower or by
the Borrower for its Subsidiaries as of the date hereof and the Closing Date.
As of each such date, such insurance is in full force and effect and all
premiums have been duly paid. The Borrower and the Subsidiaries have insurance
in such amounts and covering such risks and liabilities as are in accordance
with normal industry practice.
SECTION 3.19. Security Documents. (a) The Guarantee and Collateral
Agreement, upon execution and delivery thereof by the parties thereto, will
create in favor of the Collateral Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable security interest in the Collateral (as
defined in the Guarantee and Collateral Agreement) and the proceeds thereof and
(i) when the Pledged Collateral (as defined in the Guarantee and Collateral
Agreement) is delivered to the Collateral Agent, the Lien created under the
Guarantee and Collateral Agreement shall constitute a fully perfected first
priority Lien on, and security interest in, all right, title and interest of the
Loan Parties in such Pledged Collateral, in each case prior and superior in
right to any other person, and (ii) when financing statements in appropriate
form are filed in the offices specified on Schedule 3.19, the Lien created under
the Guarantee and Collateral Agreement will constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the Loan Parties
in such Collateral (other than Intellectual Property, as defined in the
Guarantee and Collateral Agreement), in each case prior and superior in right to
any other person, other than with respect to Liens expressly permitted by
Section 6.02 and Liens having priority by operation of law.
(b) Upon the recordation of the Guarantee and Collateral Agreement (or a
short-form agreement thereof) with the United States Patent and Trademark Office
and the United States Copyright Office, together with the financing
statements in appropriate form filed in the offices specified on Schedule 3.19,
the Guarantee and Collateral Agreement shall constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the Loan Parties
in the Intellectual Property (as defined in the Guarantee and Collateral
Agreement) in which a security interest may be perfected by filing in the United
States and its territories and possessions, in each case prior and superior in
right to any other person (it being understood that subsequent recordings in the
United States Patent and Trademark Office and the United States Copyright Office
may be necessary to perfect a Lien on registered trademarks, trademark
applications and copyrights acquired by the Loan Parties after the date hereof).
(c) The Mortgages are effective to create in favor of the Collateral Agent,
for the ratable benefit of the Secured Parties, a legal, valid and enforceable
Lien on all of the Loan Parties' right, title and interest in and to the
Mortgaged Property thereunder and the proceeds thereof, and when the Mortgages
are filed in the appropriate mortgage filing offices specified by the Borrower,
the Mortgages shall constitute a fully perfected Lien on, and security interest
in, all right, title and interest of the Loan Parties in such Mortgaged Property
and the proceeds thereof, in each case prior and superior in right to any other
person, other than with respect to the rights of persons pursuant to Liens
expressly permitted by Section 6.02 and Liens having priority by operation of
law.
SECTION 3.20. Location of Real Property and Leased Premises. (a) Schedule
3.20(a) lists completely and correctly as of the Closing Date all real property
owned by the Borrower and the Subsidiaries and the addresses thereof. The
Borrower and the Subsidiaries own in fee all the real property set forth on
Schedule 3.20(a).
(b) Schedule 3.20(b) lists completely and correctly as of the Closing Date
all real property leased by the Borrower and the Subsidiaries and the addresses
thereof. The Borrower and the Subsidiaries have valid leases in all the real
property set forth on Schedule 3.20(b).
SECTION 3.21. Labor Matters. As of the date hereof and the Closing Date,
there are no strikes, lockouts or slowdowns against Holdings, the Borrower or
any Subsidiary pending or, to the knowledge of Holdings or the Borrower,
threatened. The hours worked by and payments made to employees of Holdings, the
Borrower and the Subsidiaries have not been in violation in any material
respect of the Fair Labor Standards Act or any other applicable Federal, state,
local or foreign law dealing with such matters. All material payments due from
Holdings, the Borrower or any Subsidiary, or for which any claim may be made
against Holdings, the Borrower or any Subsidiary, on account of wages and
employee health and welfare insurance and other benefits, have been paid or
accrued as a liability on the books of Holdings, the Borrower or such
Subsidiary. The consummation of the Transactions will not give rise to any
right of termination or right of renegotiation on the part of any union under
any collective bargaining agreement to which Holdings, the Borrower or any
Subsidiary is bound.
SECTION 3.22. Solvency. Immediately after the consummation of the
Transactions to occur on the Closing Date and immediately following the making
of each Loan and after giving effect to the application of the proceeds of each
Loan, (a) the fair value of the assets of the Loan Parties, taken as a whole, at
a fair valuation, will exceed their debts and liabilities, subordinated,
contingent or otherwise; (b) the present fair saleable value of the property of
the Loan Parties, taken as a whole, will be greater than the amount that will be
required to pay the probable liability of their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) the Loan Parties, taken as a whole, will be
able to pay their debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured; and (d) the Loan
Parties, taken as a whole, will not have unreasonably small capital with which
to conduct the business in which they are engaged as such business is now
conducted and is proposed to be conducted following the Closing Date.
ARTICLE IV
CONDITIONS OF LENDING
The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit hereunder are subject to the satisfaction of the
following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing, including
each Borrowing of a Swingline Loan and on the date of each issuance, amendment,
extension or renewal of a Letter of Credit (each such event being called a
"Credit Event"):
(a) The Administrative Agent shall have received a notice of such Borrowing
as required by Section 2.03 (or such notice shall have been deemed given in
accordance with Section 2.03) or, in the case of the issuance, amendment,
extension or renewal of a Letter of Credit, the Issuing Bank and the
Administrative Agent shall have received a notice requesting the issuance,
amendment, extension or renewal of such Letter of Credit as required by Section
2.23(b) or, in the case of the Borrowing of a Swingline Loan, the Swingline
Lender and the Administrative Agent shall have received a notice requesting such
Swingline Loan as required by Section 2.22(b).
(b) The representations and warranties set forth in Article III hereof and
in each other Loan Document shall be true and correct in all material respects
on and as of the date of such Credit Event with the same effect as though made
on and as of such date, except to the extent such representations and warranties
expressly relate to an earlier date.
(c) The Borrower and each other Loan Party shall be in compliance with all
the terms and provisions set forth herein and in each other Loan Document on its
part to be observed or performed, and at the time of and immediately after such
Credit Event, no Event of Default or Default shall have occurred and be
continuing.
Each Credit Event shall be deemed to constitute a representation and
warranty by the Borrower and Holdings on the date of such Credit Event as to the
matters specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of itself, the
Lenders and the Issuing Bank, a favorable written opinion of Latham & Watkins
LLP, counsel for Holdings and the Borrower, substantially to the effect set
forth in Exhibit F (A) dated the Closing Date, (B) addressed to the Issuing
Bank, the Administrative Agent and the Lenders, and (C) covering such other
matters relating to the Loan Documents and the Transactions as the
Administrative Agent shall reasonably request, and Holdings and the Borrower
hereby request such counsel to deliver such opinion.
(b) All legal matters incident to this Agreement, the Borrowings and
extensions of credit hereunder and the other Loan Documents shall be
satisfactory to the Lenders, to the Issuing Bank and to the Administrative
Agent.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments thereto, of
each Loan Party, certified as of a recent date by the Secretary of State of the
state of its organization, and a certificate as to the good standing of each
Loan Party as of a recent date, from such Secretary of State; (ii) a certificate
of the Secretary or Assistant Secretary of each Loan Party dated the Closing
Date and certifying (A) that attached thereto is a true and complete copy of the
by-laws of such Loan Party as in effect on the Closing Date and at all times at
and after adoption of the resolutions described in clause (B) below, (B) that
attached thereto is a true and complete copy of resolutions duly adopted by the
board of directors of such Loan Party authorizing the execution, delivery and
performance of the Loan Documents to which such person is a party and, in the
case of the Borrower, the borrowings hereunder, and that such resolutions have
not been modified, rescinded or amended and are in full force and effect, (C)
that the certificate or articles of incorporation of such Loan Party have not
been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above, and (D) as
to the incumbency and specimen signature of each officer executing any Loan
Document or any other document delivered in connection herewith on behalf of
such Loan Party; (iii) a certificate of another officer as to the incumbency and
specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to clause (ii) above; and (iv) such other documents as the
Lenders, the Issuing Bank or the Administrative Agent may reasonably request.
(d) The Administrative Agent shall have received a certificate, dated the
Closing Date and signed by a Financial Officer of the Borrower, confirming (i)
compliance with the conditions precedent set forth in paragraphs (b) and (c) of
Section 4.01, (ii) that Holdings has received the opinion of Standard & Poor's
Corporate Value Consulting referred to in the Issuer Tender Offer Statement as
to Holdings's capital surplus under Delaware law and that such opinion is in
form and substance satisfactory to the board of directors of Holdings and (iii)
that such Financial Officer has no reason to believe, based on the best
information available to Holdings and the Borrower as of the date of such
certificate, that any other condition to the Self Tender (other than obtaining
the financing contemplated hereby) will not be satisfied or waived by Holdings.
(e) The Administrative Agent shall have received all Fees and other amounts
due and payable on or prior to the Closing Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(f) The Security Documents shall have been duly executed by each Loan Party
that is to be a party thereto and shall be in full force and effect on the
Closing Date. The Collateral Agent on behalf of the Secured Parties shall have
a security interest in the Collateral of the type and priority described in each
Security Document.
(g) The Collateral Agent shall have received a Perfection Certificate with
respect to the Loan Parties dated the Closing Date and duly executed by a
Responsible Officer of Holdings and the Borrower, and shall have received the
results of a search of the Uniform Commercial Code filings (or equivalent
filings) made with respect to the Loan Parties in the states (or other
jurisdictions) of formation of such persons, in which the chief executive office
of each such person is located and in the other jurisdictions in which such
persons maintain property, in each case as indicated on such Perfection
Certificate, together with copies of the financing statements (or similar
documents) disclosed by such search, and accompanied by evidence satisfactory to
the Collateral Agent that the Liens indicated in any such financing statement
(or similar document) would be permitted under Section 6.02 or have been or will
be contemporaneously released or terminated.
(h) The Administrative Agent shall have received a copy of, or a certificate
as to coverage under, the insurance policies required by Section 5.02 and the
applicable provisions of the Security Documents, each of which shall be endorsed
or otherwise amended to include a customary lender's loss payable endorsement
and to name the Collateral Agent as additional insured, in form and substance
reasonably satisfactory to the Administrative Agent and the Collateral Agent.
(i) All principal, premium, if any, interest, fees and other amounts due or
outstanding under the Existing Credit Agreement shall have been paid in full,
the commitments thereunder terminated and all guarantees and security in support
thereof discharged and released, and the Administrative Agent shall have
received reasonably satisfactory evidence thereof. Immediately after giving
effect to the initial Borrowing hereunder, Holdings, the Borrower and the
Subsidiaries shall have outstanding no Indebtedness or preferred stock other
than (a) Indebtedness outstanding under this Agreement (or, in the case of
Holdings, its Guarantee of such Indebtedness) and (b) Indebtedness set forth on
Schedule 6.01.
(j) The Lenders shall have received the financial statements and opinion
referred to in Section 3.05.
(k) The Lenders shall be reasonably satisfied in all respects with the Tax
Sharing Agreement and any other tax sharing arrangements among Holdings and its
subsidiaries after giving effect to the Transactions.
(l) The Administrative Agent shall have received a certificate in form and
substance reasonably satisfactory to the Administrative Agent dated the Closing
Date and signed by the Chief Financial Officer of Holdings, confirming the
solvency of Holdings and its subsidiaries on a consolidated basis after giving
effect to the Transactions.
(m) All requisite Governmental Authorities and third parties shall have
approved or consented to the Transactions and the other transactions
contemplated hereby to the extent required, all applicable appeal periods shall
have expired and there shall not be any pending or threatened litigation,
governmental, administrative or judicial action that could reasonably be
expected to restrain, prevent or impose burdensome conditions on the
Transactions or the other transactions contemplated hereby.
(n) The Lenders shall have received, to the extent requested, all
documentation and other information required by regulatory authorities under
applicable "know your customer" and anti-money laundering rules and regulations,
including the USA Patriot Act.
ARTICLE V
AFFIRMATIVE COVENANTS
Each of Holdings and the Borrower covenants and agrees with each Lender
that so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document shall have
been paid in full and all Letters of Credit have been canceled or have expired
and all amounts drawn thereunder have been reimbursed in full (or such Letters
of Credit have been cash collateralized on terms satisfactory to the
Administrative Agent or are supported by Backstop Letters of Credit), unless the
Required Lenders shall otherwise consent in writing, each of Holdings and the
Borrower will, and will cause each of the Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence, except as otherwise expressly permitted under Section 6.05.
(b) Do or cause to be done all things necessary to obtain, preserve, renew,
extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
necessary to the conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and operated; comply
in all material respects with all applicable laws, rules, regulations and
decrees and orders of any Governmental Authority, whether now in effect or
hereafter enacted; and at all times maintain and preserve all property necessary
to the conduct of such business and keep such property in good repair, working
order and condition (ordinary wear and tear excepted) and from time to time
make, or cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times.
SECTION 5.02. Insurance. (a) Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain such
other insurance, to such extent and against such risks, including fire and other
risks insured against by extended coverage, as is customary with companies
in the same or similar businesses operating in the same or similar locations,
including commercial general liability insurance against claims for personal
injury or death or property damage occurring upon, in, about or in connection
with the use of any properties owned, occupied or controlled by it; and maintain
such other insurance as may be required by law.
(b) Cause all such policies covering any Collateral to be endorsed or
otherwise amended to include a customary lender's loss payable endorsement, in
form and substance reasonably satisfactory to the Administrative Agent and the
Collateral Agent, which endorsement shall provide that, from and after the
Closing Date, if the insurance carrier shall have received written notice from
the Administrative Agent or the Collateral Agent of the occurrence of an Event
of Default, the insurance carrier shall pay all proceeds otherwise payable to
the Borrower or any other Loan Party under such policies directly to the
Collateral Agent until the insurance carrier shall have received written notice
from the Administrative Agent or the Collateral Agent that no Events of Default
are continuing, after which time the insurance carrier shall pay all proceeds to
the Borrower or other Loan Parties, as applicable, until receipt by the
insurance carrier of another notice of an Event of Default as provided herein;
cause all such policies to provide that neither the Borrower, the Administrative
Agent, the Collateral Agent nor any other party shall be a coinsurer thereunder
and to contain a "Replacement Cost Endorsement", without any deduction for
depreciation, and such other provisions as the Administrative Agent or the
Collateral Agent may reasonably require from time to time to protect their
interests; deliver original or certified copies of all such policies or a
certificate of an insurance broker reasonably satisfactory to the Collateral
Agent to the Collateral Agent; cause each such policy to provide that it shall
not be canceled, modified or not renewed (i) by reason of nonpayment of premium
upon not less than 10 days' prior written notice thereof by the insurer to the
Administrative Agent and the Collateral Agent (giving the Administrative Agent
and the Collateral Agent the right to cure defaults in the payment of premiums)
or (ii) for any other reason upon not less than 30 days' prior written notice
thereof by the insurer to the Administrative Agent and the Collateral Agent;
deliver to the Administrative Agent and the Collateral Agent, together with the
delivery of the financial statements required by Section 5.04(a) or (b), a copy
of any renewal or replacement policy entered into during the applicable period
(or other evidence of renewal of a policy previously delivered to the
Administrative Agent and the Collateral Agent), or an insurance certificate with
respect thereto, together with evidence satisfactory to the Administrative Agent
and the Collateral Agent of payment of the premium therefor.
(c) If at any time the area in which the Premises (as defined in the
Mortgages) are located is designated (i) a "flood hazard area" in any Flood
Insurance Rate Map published by the Federal Emergency Management Agency (or any
successor agency), obtain flood insurance in such total amount as the
Administrative Agent, the Collateral Agent or the Required Lenders may from time
to time require, and otherwise comply with the National Flood Insurance
Program as set forth in the Flood Disaster Protection Act of 1973, as it may be
amended from time to time, or (ii) a "Zone 1" area, obtain earthquake insurance
in such total amount as the Administrative Agent, the Collateral Agent or the
Required Lenders may from time to time reasonably require (provided that such
insurance is available on commercially reasonable terms).
(d) With respect to any Mortgaged Property, carry and maintain comprehensive
general liability insurance including the "broad form CGL endorsement" and
coverage on an occurrence basis against claims made for personal injury
(including bodily injury, death and property damage) and umbrella liability
insurance against any and all claims, in no event for a combined single limit of
less than $1,500,000, naming the Collateral Agent as an additional insured, on
forms reasonably satisfactory to the Collateral Agent.
(e) Notify the Administrative Agent and the Collateral Agent promptly
whenever any separate insurance concurrent in form or contributing in the event
of loss with that required to be maintained under this Section 5.02 is taken out
by the Borrower; and deliver to the Administrative Agent and the Collateral
Agent a duplicate original copy of such policy or policies or an insurance
certificate with respect thereto together with the delivery of the financial
statements required by Section 5.04(a) or (b) for the applicable period.
SECTION 5.03. Taxes and Certain Obligations. Pay and discharge promptly
when due all Federal and all material state, local or foreign Taxes, assessments
and governmental charges or levies imposed upon it or upon its income or
profits or in respect of its property, before the same shall become delinquent
or in default, as well as all lawful claims for labor, materials and supplies or
otherwise that, if unpaid, might give rise to a Lien upon such properties or any
part thereof; provided, however, that such payment and discharge shall not be
required with respect to any such tax, assessment, charge, levy or claim so long
as the validity or amount thereof is being contested in good faith by
appropriate proceedings and the Borrower has set aside on its books adequate
reserves with respect thereto in accordance with GAAP and such contest operates
to suspend collection of the contested obligation, Tax, assessment or charge and
enforcement of a Lien and, in the case of a Mortgaged Property, there is no risk
of forfeiture of such property.
SECTION 5.04. Financial Statements, Reports, etc. In the case of Holdings,
furnish to the Administrative Agent for each Lender:
(a) within 90 days after the end of each fiscal year, its consolidated
balance sheet and related statements of income, stockholders' equity and cash
flows showing the financial condition of Holdings and its consolidated
subsidiaries as of the close of such fiscal year and the results of its
operations and the operations of such subsidiaries during such year, together
with comparative figures for the immediately preceding fiscal year, all audited
by PricewaterhouseCoopers LLP or other independent public accountants of
recognized national standing and accompanied by an opinion of such accountants
(which opinion shall be without a "going concern" or like qualification or
exception and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements fairly present
the financial condition and results of operations of Holdings and its
consolidated subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters
of each fiscal year, its consolidated balance sheet and related statements of
income, stockholders' equity and cash flows showing the financial condition of
Holdings and its consolidated subsidiaries as of the close of such fiscal
quarter and the results of its operations and the operations of such
subsidiaries during such fiscal quarter and the then elapsed portion of the
fiscal year, and comparative figures for the same periods in the immediately
preceding fiscal year, all certified by one of its Financial Officers as fairly
presenting the financial condition and results of operations of Holdings and its
consolidated subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments;
(c) (i) concurrently with any delivery of financial statements under
paragraph (a) or (b) above, a certificate of the Financial Officer of Holdings
certifying such statements (x) certifying that no Event of Default or Default
has occurred or, if such an Event of Default or Default has occurred, specifying
the nature and extent thereof and any corrective action taken or proposed to be
taken with respect thereto and (y) setting forth computations in reasonable
detail satisfactory to the Administrative Agent demonstrating compliance with
the covenants contained in Sections 6.06, 6.10, 6.11 and 6.12 and, in the case
of a certificate delivered with the financial statements required by paragraph
(a) above, setting forth the Borrower's calculation of Excess Cash Flow and (ii)
concurrently with any delivery of financial statements under paragraph (a)
above, a certificate of the accounting firm opining on such statements (which
certificate, when furnished by an accounting firm, may be limited to accounting
matters and disclaim responsibility for legal interpretations) (x) certifying
that such accounting firm has reviewed the terms of this Agreement and (y) that
nothing has come to their attention that constitutes an Event of Default or
Default;
(d) no more than 15 days after approval thereof by the board of directors of
Holdings (and, in any event, within 45 days after the end of each fiscal year of
Holdings), a detailed consolidated budget for such fiscal year (including a
projected consolidated balance sheet and related statements of projected
operations and cash flows as of the end of and for such fiscal year and setting
forth the assumptions used for purposes of preparing such budget) and, promptly
when available, any significant revisions of such budget;
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
Holdings, the Borrower or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any of
their respective subsidiaries, a copy of any "management letter" received by any
such person from its certified public accountants and the management's response
thereto;
(g) promptly after the request by any Lender, all documentation and other
information that such Lender reasonably requests in order to comply with its
ongoing obligations under applicable "know your customer" and anti-money
laundering rules and regulations, including the USA Patriot Act; and
(h) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of Holdings, the Borrower
or any Subsidiary, or compliance with the terms of any Loan Document, as the
Administrative Agent or any Lender may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the Administrative
Agent, the Issuing Bank and each Lender prompt written notice of the following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) taken or proposed to be taken with
respect thereto;
(b) the filing or commencement of, or any threat or notice of intention of
any person to file or commence, any action, suit or proceeding, whether at law
or in equity or by or before any Governmental Authority, against the Borrower or
any Affiliate thereof that could reasonably be expected to result in a Material
Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any other
ERISA Events that have occurred, could reasonably be expected to result in
liability of the Borrower and the Subsidiaries in an aggregate amount exceeding
$2,500,000; and
(d) any development that has resulted in, or could reasonably be expected to
result in, a Material Adverse Effect.
SECTION 5.06. Information Regarding Collateral. (a) Furnish to the
Administrative Agent prompt written notice of any change (i) in any Loan Party's
legal name, (ii) in the jurisdiction of organization or formation of any
Loan Party, (iii) in any Loan Party's identity or type of organization or
corporate structure or (iv) in any Loan Party's Federal Taxpayer Identification
Number or organizational identification number. Holdings and the Borrower agree
not to effect or permit any change referred to in the preceding sentence unless
all filings have been made under the Uniform Commercial Code or otherwise that
are required in order for the Collateral Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral. Holdings and the Borrower also agree promptly to notify the
Administrative Agent if any material portion of the Collateral is damaged or
destroyed.
(b) In the case of Holdings and the Borrower, each year, at the time of
delivery of the annual financial statements with respect to the preceding fiscal
year pursuant to Section 5.04(a), deliver to the Administrative Agent a
certificate of a Responsible Officer setting forth the information required
pursuant to the Perfection Certificate or confirming that there has been no
change in such information since the date of the Perfection Certificate
delivered on the Closing Date or the date of the most recent certificate
delivered pursuant to this Section 5.06.
SECTION 5.07. Maintaining Records; Access to Properties and Inspections;
Maintenance of Ratings. (a) Keep proper books of record and account in which
full, true and correct entries in conformity with GAAP and all requirements of
law are made of all dealings and transactions in relation to its business and
activities. Each Loan Party will, and will cause each of its subsidiaries to,
permit any representatives designated by the Administrative Agent (or, upon the
occurrence and during the continuation of any Event of Default, any Lender) to
visit and inspect the financial records and the properties of such person at
reasonable times during normal business hours and as often as reasonably
requested and to make extracts from and copies of such financial records, and
permit any representatives designated by the Administrative Agent (or, upon the
occurrence and during the continuation of any Event of Default, any Lender) to
discuss the affairs, finances and condition of such person with the officers
thereof and independent accountants therefor (provided that an officer or other
member of management of the Borrower shall be afforded a reasonable opportunity
to be present during any discussions with such accountants).
(b) In the case of Holdings and the Borrower, use commercially reasonable
effects to cause the Credit Facilities to be continuously rated by S&P and
Moody's, and provide all information regarding the business and financial
condition of Holdings and its subsidiaries as any such ratings agency (or any
successor thereto) may from time to time reasonably request in connection
therewith.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and request
the issuance of Letters of Credit only for the purposes set forth in the
preamble to this Agreement.
SECTION 5.09. Further Assurances. Execute any and all further documents,
financing statements, agreements and instruments, and take all further action
(including filing Uniform Commercial Code and other financing statements,
mortgages and deeds of trust) that may be required under applicable law, or that
the Required Lenders, the Administrative Agent or the Collateral Agent may
reasonably request, in order to effectuate the transactions contemplated by the
Loan Documents and in order to grant, preserve, protect and perfect the validity
and first priority of the security interests created or intended to be created
by the Security Documents. The Borrower will cause any subsequently acquired or
organized Domestic Subsidiary to become a Loan Party by executing the Guarantee
and Collateral Agreement and each applicable Security Document in favor of the
Collateral Agent. In addition, from time to time, the Borrower will, at its
cost and expense, promptly secure the Obligations by pledging or creating, or
causing to be pledged or created, perfected security interests with respect to
such of its assets and properties as the Administrative Agent, the Collateral
Agent or the Required Lenders shall designate (it being understood that it is
the intent of the parties that the Obligations shall be secured by substantially
all the assets of Holdings, the Borrower and its Subsidiaries (including real
and other properties acquired subsequent to the Closing Date, but excluding real
properties having a value less than the threshold specified below, immaterial
leasehold properties, motor vehicles and other categories of assets that are not
included in the security interest granted under the terms of the Guarantee and
Collateral Agreement)). Such security interests and Liens will be created under
the Security Documents and other security agreements, mortgages, deeds of trust
and other instruments and documents in form and substance satisfactory to the
Collateral Agent, and the Borrower shall deliver or cause to be delivered to the
Lenders all such instruments and documents (including legal opinions, title
insurance policies and lien searches) as the Collateral Agent shall reasonably
request to evidence compliance with this Section. The Borrower agrees to
provide such evidence as the Collateral Agent shall reasonably request as to the
perfection and priority status of each such security interest and Lien. In
furtherance of the foregoing, the Borrower will give prompt notice to the
Administrative Agent of the acquisition by it or any of the Subsidiaries of any
real property (or any interest in real property) having a value in excess of
$500,000.
SECTION 5.10. Interest Rate Protection. No later than the 60th day after
the Closing Date (or such later date not more than 105 days after the Closing
Date as the Administrative Agent in its discretion may agree), the Borrower
shall enter into, and for a minimum of two years thereafter maintain, Hedging
Agreements acceptable to the Administrative Agent that result in at least 50% of
the aggregate principal amount of its funded long-term Indebtedness on the
Closing Date (after giving effect to the Borrowings hereunder) being effectively
subject to a fixed or maximum interest rate acceptable to the Administrative
Agent.
ARTICLE VI
NEGATIVE COVENANTS
Each of Holdings and the Borrower covenants and agrees with each Lender
that, so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document have been paid
in full and all Letters of Credit have been cancelled or have expired and all
amounts drawn thereunder have been reimbursed in full (or such Letters of Credit
have been cash collateralized on terms satisfactory to the Administrative Agent
or are supported by Backstop Letters of Credit), unless the Required Lenders
shall otherwise consent in writing, neither Holdings nor the Borrower will, nor
will they cause or permit any of the Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness existing on the date hereof and set forth in Schedule 6.01;
(b) Indebtedness created hereunder and under the other Loan Documents;
(c) intercompany Indebtedness of the Borrower and the Subsidiaries to the
extent permitted by Section 6.04(c);
(d) Indebtedness of the Borrower or any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets, and
extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof; provided that (i) such
Indebtedness is incurred prior to or within 120 days after such acquisition or
the completion of such construction or improvement and (ii) the aggregate
principal amount of Indebtedness permitted by this Section 6.01(d), when
combined with the aggregate principal amount of all Capital Lease Obligations
and Synthetic Lease Obligations incurred pursuant to Section 6.01(e) shall not
exceed $5,000,000 at any time outstanding;
(e) Capital Lease Obligations and Synthetic Lease Obligations in an
aggregate principal amount, when combined with the aggregate principal amount of
all Indebtedness incurred pursuant to Section 6.01(d), not in excess of
$5,000,000 at any time outstanding;
(f) Indebtedness under performance, statutory, surety, appeal, customs or
similar bonds or obligations or with respect to workers' compensation claims,
unemployment insurance claims and claims under other social security laws or
regulations, in each case incurred in the ordinary course of business;
(g) Indebtedness under or in respect of Hedging Agreements that are not
speculative in nature;
(h) Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument drawn against insufficient
funds in the ordinary course of business or other cash management services in
the ordinary course of business; provided that such Indebtedness is extinguished
within five Business Days of its incurrence;
(i) Indebtedness acquired or assumed by the Borrower or any Subsidiary in
connection with any Permitted Acquisition in an aggregate principal amount not
in excess of $5,000,000 at any time outstanding; provided, however, that such
Indebtedness existed at the time of such Permitted Acquisition and was not
created in connection therewith or in contemplation thereof;
(j) Indebtedness to insurance carriers representing the deferred payment of
premiums to such insurance carriers incurred in the ordinary course of business;
(k) Indebtedness incurred to extend, renew or refinance any Indebtedness
described in Section 6.01(a), (d), (e) or (i) ("Refinancing Indebtedness");
provided, however, that (i) such Refinancing Indebtedness is in an aggregate
principal amount not greater than the aggregate principal amount of the
Indebtedness being extended, renewed or refinanced, plus the amount of any
interest, premiums or penalties required to be paid thereon plus fees and
expenses associated therewith, (ii) such Refinancing Indebtedness has a later or
equal final maturity and a longer or equal weighted average life to maturity
than the Indebtedness being extended, renewed or refinanced, (iii) if the
Indebtedness being extended, renewed or refinanced is subordinated to the
Obligations, the Refinancing Indebtedness is subordinated to the Obligations on
terms no less favorable to the Lenders than the Indebtedness being extended,
renewed or refinanced, (iv) only the obligors in respect of the Indebtedness
being extended, renewed or refinanced may become obligated with respect to such
Refinancing Indebtedness and (v) the non-economic covenants, events of default,
remedies and other provisions of the Refinancing Indebtedness, when taken as a
whole, shall be materially no less favorable to the Lenders than those contained
in the Indebtedness being extended, renewed or refinanced; and
(l) other Indebtedness of the Borrower or the Subsidiaries in an aggregate
principal amount not exceeding $25,000,000 at any time outstanding.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien on
any property or assets (including Equity Interests or other securities of any
person, including any Subsidiary) now owned or hereafter acquired by it or on
any income or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its Subsidiaries
existing on the date hereof and set forth in Schedule 6.02; provided that such
Liens shall secure only those obligations which they secure on the date hereof
and extensions, renewals and replacements thereof permitted hereunder;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the acquisition
thereof by the Borrower or any Subsidiary; provided that (i) such Lien is not
created in contemplation of or in connection with such acquisition, (ii) such
Lien does not apply to any other property or assets of the Borrower or any
Subsidiary and (iii) such Lien does not materially interfere with the use,
occupancy and operation of any Mortgaged Property;
(d) Liens for taxes not yet due or which are being contested in compliance
with Section 5.03;
(e) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business and securing
obligations that are not due and payable or which are being contested in
compliance with Section 5.03;
(f) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other social
security laws or regulations;
(g) deposits to secure the performance of bids, trade contracts (other than
for Indebtedness), leases (other than Capital Lease Obligations), statutory
obligations, surety and appeal bonds, performance bonds, customs bonds and other
obligations of a like nature incurred in the ordinary course of business;
(h) zoning restrictions, easements, rights-of-way, restrictions on use of
real property and other similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in amount and do not
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of the Borrower or any of its
Subsidiaries;
(i) purchase money security interests in real property, improvements thereto
or equipment hereafter acquired (or, in the case of improvements, constructed)
by the Borrower or any Subsidiary; provided that (i) such security interests
secure Indebtedness permitted by Section 6.01, (ii) such security interests are
incurred, and the Indebtedness secured thereby is created, within 120 days after
such acquisition (or construction), (iii) the Indebtedness secured thereby does
not exceed 100% of the lesser of the cost or the fair market value of such real
property, improvements or equipment at the time of such acquisition (or
construction) and (iv) such security interests do not apply to any other
property or assets of the Borrower or any Subsidiary;
(j) any interest or title of a lessor or licensor under any leases or
licenses entered into by the Borrower or any Subsidiary in the ordinary course
of business;
(k) Liens arising solely by virtue of statutory or common law provisions
relating to banker's liens, rights of set-off or similar rights;
(l) Liens that are contractual rights of set-off (i) relating to the
establishment of depository relations with banks not given in connection with
the incurrence of Indebtedness or (ii) relating to pooled deposit or sweep
accounts of the Borrower or any Subsidiary to permit the satisfaction of
overdraft or similar obligations incurred in the ordinary course of business of
the Borrower and the Subsidiaries;
(m) Liens of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;
(n) Liens securing obligations in respect of trade-related letters of credit
or trade-related bankers acceptances issued in the ordinary course of
business of the Borrower or the Subsidiaries, in each case covering the goods
(or the documents of title in respect of such goods) financed by such letters of
credit or bankers acceptances and the proceeds and products thereof; provided
that such Liens secure only the obligations of the Borrower or any Subsidiary in
respect of such letters of credit or bankers acceptances to the extent permitted
under Section 6.01;
(o) Liens arising out of judgments or awards in respect of which Holdings,
the Borrower or any of the Subsidiaries shall in good faith be prosecuting an
appeal or proceedings for review in respect of which there shall be secured a
subsisting stay of execution pending such appeal or proceedings; provided that
the aggregate amount of all such judgments or awards (and any cash and the fair
market value of any property subject to such Liens) does not exceed $5,000,000
at any time outstanding; and
(p) other Liens that do not, individually or in the aggregate, secure
obligations (or encumber property with a fair market value) in excess of
$5,000,000 at any one time.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any arrangement,
directly or indirectly, with any person whereby it shall sell or transfer
any property, real or personal, used or useful in its business, whether now
owned or hereafter acquired, and thereafter rent or lease such property or other
property which it intends to use for substantially the same purpose or purposes
as the property being sold or transferred unless (a) the sale of such property
is permitted by Section 6.05 and (b) any Capital Lease Obligations, Synthetic
Lease Obligations or Liens arising in connection therewith are permitted by
Sections 6.01 and 6.02, as the case may be.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or acquire
any Equity Interests, evidences of indebtedness or other securities of, make or
permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) (i) investments by Holdings, the Borrower and the Subsidiaries existing
on the date hereof in the Equity Interests of the Borrower and the Subsidiaries
and (ii) additional investments by Holdings, the Borrower and the Subsidiaries
in the Equity Interests of the Borrower and the Subsidiaries; provided that (A)
any such Equity Interests held by a Loan Party shall be pledged pursuant to the
Guarantee and Collateral Agreement (subject to the limitations applicable to
voting stock of a Foreign Subsidiary referred to therein) and (B) the aggregate
amount of investments by Loan Parties in, and loans and advances by Loan Parties
to, Subsidiaries that are not Loan Parties (determined without regard to
any write-downs or write-offs of such investments, loans and advances) shall not
exceed $2,500,000 at any time outstanding;
(b) Permitted Investments;
(c) loans or advances made by the Borrower to any Subsidiary and made by any
Subsidiary to Holdings, the Borrower or any other Subsidiary; provided that (i)
any such loans and advances made by a Loan Party shall be evidenced by a
promissory note pledged to the Collateral Agent for the ratable benefit of the
Secured Parties pursuant to the Guarantee and Collateral Agreement and (ii) the
amount of such loans and advances made by Loan Parties to Subsidiaries that are
not Loan Parties shall be subject to the limitation set forth in clause (a)
above;
(d) investments received in connection with the bankruptcy or reorganization
of, or settlement of delinquent accounts and disputes with, customers and
suppliers, in each case in the ordinary course of business;
(e) the Borrower and the Subsidiaries 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 $750,000;
(f) the Borrower may enter into Hedging Agreements that (i) are required by
Section 5.10 or (ii) are not speculative in nature and are related to income
derived from foreign operations of the Borrower or any Subsidiary or otherwise
related to purchases from foreign suppliers;
(g) the Borrower or any Subsidiary may acquire all or substantially all the
assets of a person or line of business of such person, or not less than 100% of
the Equity Interests of a person (referred to herein as the "Acquired Entity");
provided that (i) such acquisition was not preceded by an unsolicited tender
offer for such Equity Interests by, or proxy contest initiated by, Holdings, the
Borrower or any Subsidiary; (ii) the Acquired Entity shall be in a similar
line of business as that of the Borrower and the Subsidiaries as conducted
during the current and most recent calendar year; and (iii) at the time of such
transaction (A) both before and after giving effect thereto, no Event of Default
or Default shall have occurred and be continuing; (B) the Borrower would be in
compliance with the covenants set forth in Sections 6.11 and 6.12 as of the most
recently completed period of four consecutive fiscal quarters ending prior to
such transaction for which the financial statements and certificates required by
Section 5.04(a) or (b) and Section 5.04(c) have been delivered or for which
comparable financial statements have been filed with the Securities and Exchange
Commission, after giving pro forma effect to such transaction and to any other
event occurring after such period as to which pro forma recalculation is
appropriate (including any other transaction described in this Section 6.04(g)
occurring after such period) as if such transaction had occurred as of the first
day of such period; (C) after giving effect to such acquisition, there must be
at least $10,000,000 of unused and available Revolving Credit Commitments; and
(D) the total consideration paid in connection with such acquisition and any
other acquisitions pursuant to this Section 6.04(g) (including any Indebtedness
of the Acquired Entity that is assumed by the Borrower or any Subsidiary
following such acquisition) shall not in the aggregate exceed $50,000,000 (any
acquisition of an Acquired Entity meeting all the criteria of this Section
6.04(g) being referred to herein as a "Permitted Acquisition");
(h) investments, loans and advances existing on the date hereof and set
forth on Schedule 6.04;
(i) the Borrower and any Subsidiary may acquire and hold receivables owing
to it, if created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms (including the dating of
receivables) of the Borrower or such Subsidiary;
(j) Holdings may acquire the Offer to Purchase Shares pursuant to the Self
Tender;
(k) investments arising out of the receipt by the Borrower or any Subsidiary
of non-cash consideration for an Asset Sale to the extent permitted by
Section 6.05;
(l) investments by any person existing at the time such person became a
Subsidiary; provided, however, that all such investments existed at the time
such person became a Subsidiary and were not made or incurred in connection
therewith or in contemplation thereof; and
(m) in addition to investments permitted by paragraphs (a) through (l)
above, additional investments, loans and advances by the Borrower and the
Subsidiaries (other than investments, loans and advances to Foreign
Subsidiaries) so long as the aggregate amount invested, loaned or advanced
pursuant to this paragraph (m) (determined without regard to any write-downs or
write-offs of such investments, loans and advances) does not exceed $15,000,000
in the aggregate.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions.
(a) Merge into or consolidate with any other person, or permit any other person
to merge into or consolidate with it, or sell, transfer, lease or otherwise
dispose of (in one transaction or in a series of transactions) all or
substantially all the assets (whether now owned or hereafter acquired) of the
Borrower or less than all the Equity Interests of any Subsidiary, or purchase,
lease or otherwise acquire (in one transaction or a series of transactions) all
or any substantial part of the assets of any other person, except that (i) the
Borrower and any Subsidiary may purchase and sell inventory in the ordinary
course of business and (ii) if at the time thereof and immediately after giving
effect thereto no Event of Default or Default shall have occurred and be
continuing (x) any wholly owned Subsidiary may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation, (y) any wholly
owned Subsidiary may merge into or consolidate with any other wholly owned
Subsidiary in a transaction in which the surviving entity is a wholly owned
Subsidiary and no person other than the Borrower or a wholly owned Subsidiary
receives any consideration (provided that if any party to any such transaction
is a Loan Party, the surviving entity of such transaction shall be a Loan Party)
and (z) the Borrower and the Subsidiaries may make Permitted Acquisitions.
(b) Engage in any Asset Sale otherwise permitted under paragraph (a) above
unless (i) such Asset Sale is for consideration at least 75% of which is cash
(or the assets are exchanged substantially simultaneously for similar
replacement assets), (ii) such consideration is at least equal to the fair
market value of the assets being sold, transferred, leased or disposed of and
(iii) the fair market value of all assets sold, transferred, leased or disposed
of pursuant to this paragraph (b) shall not exceed (x) $2,500,000 in any fiscal
year or (y) $10,000,000 in the aggregate (provided, however, that up to
$10,000,000 in proceeds from the sale or other disposition by the Borrower of
the Equity Interests in the ChoiceParts JV held by the Borrower shall be not be
counted for purposes of determining compliance with the limitations set forth in
this clause (iii)).
SECTION 6.06. Restricted Payments; Restrictive Agreements. (a) Declare or
make, or agree to declare or make, directly or indirectly, any Restricted
Payment (including pursuant to any Synthetic Purchase Agreement), or incur any
obligation (contingent or otherwise) to do so; provided, however, that (i) any
Subsidiary may declare and pay dividends or make other distributions ratably to
its equity holders, (ii) so long as no Event of Default or Default shall have
occurred and be continuing or would result therefrom, the Borrower may, or the
Borrower may make distributions to Holdings so that Holdings may, repurchase its
Equity Interests owned by employees of Holdings, the Borrower or the
Subsidiaries or make payments to employees of Holdings, the Borrower or the
Subsidiaries upon termination of employment in connection with the exercise of
stock options, stock appreciation rights or similar equity incentives or equity
based incentives pursuant to management incentive plans or in connection with
the death or disability of such employees in an aggregate amount not to exceed
$2,000,000 in any fiscal year (provided, however, that such amount shall be
increased by the amount of cash proceeds received by Holdings from the sale of
Equity Interests of Holdings to such employees after the Closing Date to the
extent such proceeds are contributed directly or indirectly to the Borrower as
common equity), (iii) Holdings may, and the Borrower may make distributions to
Holdings so that Holdings may, acquire the Offer to Purchase Shares pursuant to
the Self Tender, (iv) the Borrower may make Restricted Payments to Holdings (x)
in an amount not to exceed $250,000 in any fiscal year, to the extent necessary
to pay general corporate and overhead expenses incurred by Holdings in the
ordinary course of business and (y) in an amount necessary to pay the Tax
liabilities of Holdings directly attributable to (or arising as a result of) the
operations of the Borrower and the Subsidiaries; provided, however, that (A) the
amount of such dividends shall not exceed the amount that the Borrower and the
Subsidiaries would be required to pay in respect of Federal, State and local
taxes were the Borrower and the Subsidiaries to pay such taxes as stand-alone
taxpayers and (B) all Restricted Payments made to Holdings pursuant to this
clause (iv) are used by Holdings for the purposes specified herein within 20
days of the receipt thereof and (v) so long as no Event of Default or Default
shall have occurred and be continuing or result therefrom, Holdings and the
Borrower may make other Restricted Payments under this clause (v) in an amount
not to exceed the sum of (a) $20,000,000 and (b) 50% of Cumulative Consolidated
Net Income (or, in the case Cumulative Consolidated Net Income at the time of
determination is a deficit, minus 100% of such deficit), less (c) the aggregate
amount of all Restricted Payments made since the Closing Date pursuant to this
clause (v).
(b) Enter into, incur or permit to exist any agreement or other arrangement
that prohibits, restricts or imposes any condition upon (i) the ability of
Holdings, the Borrower or any Subsidiary to create, incur or permit to exist any
Lien upon any of its property or assets, or (ii) the ability of any
Subsidiary to pay dividends or other distributions with respect to any of its
Equity Interests or to make or repay loans or advances to, or to transfer any of
its property or assets to, the Borrower or any other Subsidiary or to Guarantee
Indebtedness of the Borrower or any other Subsidiary; provided that (A) the
foregoing shall not apply to restrictions and conditions imposed by law or by
any Loan Document, (B) the foregoing shall not apply to customary restrictions
and conditions contained in agreements relating to the sale of a Subsidiary
pending such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (C) the
foregoing shall not apply to customary provisions in joint venture agreements
and other similar agreements applicable to joint ventures permitted under
Section 6.04 and applicable solely to such joint venture entered into in the
ordinary course of business, (D) the foregoing shall not apply to customary
restrictions and conditions contained in any agreement relating to an Asset Sale
permitted under Section 6.05 pending the consummation of such Asset Sale to the
extent such restrictions and conditions apply only to the assets subject to such
Asset Sale, (E) the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to Indebtedness permitted under Section
6.01(l) so long as such restrictions or conditions are no more restrictive than
those contained in this Agreement, (F) clause (i) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness and (G) clause
(i) of the foregoing shall not apply to customary provisions in leases, licenses
and other contracts restricting the assignment thereof.
SECTION 6.07. Transactions with Affiliates. Except for transactions by or
among Loan Parties, sell or transfer any property or assets to, or purchase or
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except that (a) the Borrower or any
Subsidiary may engage in any of the foregoing transactions in the ordinary
course of business at prices and on terms and conditions not less favorable to
the Borrower or such Subsidiary than could be obtained on an arm's-length basis
from unrelated third parties, (b) dividends and purchases may be paid and
effected to the extent provided in Section 6.06, (c) loans, investments and
advances may be made to the extent permitted by Sections 6.01 and 6.04, (d) the
Loan Parties may perform their respective obligations under the terms of the Tax
Sharing Agreement or any amendment thereto that is not adverse to the
Lenders and (e) reasonable fees and compensation may be paid to, and indemnities
may be provided on behalf of, officers, directors and employees of Holdings, the
Borrower and the Subsidiaries, as determined by the board of directors of
Holdings or the Borrower or appropriate officers of the Borrower in good faith.
SECTION 6.08. Business of Holdings, Borrower and Subsidiaries. (a) With
respect to Holdings, engage in any business activities or have any assets or
liabilities other than its ownership of the Equity Interests of the Borrower and
liabilities incidental thereto, including its liabilities pursuant to the
Guarantee and Collateral Agreement, liabilities in connection with maintaining
its existence and liabilities in connection with the Self Tender.
(b) With respect to the Borrower and its Subsidiaries, engage at any time in
any business or business activity other than the business currently
conducted by it and business activities reasonably related thereto.
SECTION 6.09. Other Indebtedness and Agreements. (a) Permit any waiver,
supplement, modification, amendment, termination or release of any indenture,
instrument or agreement pursuant to which any Material Indebtedness of Holdings,
the Borrower or any of the Subsidiaries is outstanding if the effect of
such waiver, supplement, modification, amendment, termination or release would
materially increase the obligations of the obligor or confer additional material
rights on the holder of such Indebtedness in a manner materially adverse to
Holdings, the Borrower, any of the Subsidiaries or the Lenders.
(b) (i) Make any distribution, whether in cash, property, securities or a
combination thereof, other than regular scheduled payments of principal and
interest as and when due (to the extent not prohibited by applicable
subordination provisions), in respect of, or pay, or offer or commit to pay, or
directly or indirectly (including pursuant to any Synthetic Purchase Agreement)
redeem, repurchase, retire or otherwise acquire for consideration, or set apart
any sum for the aforesaid purposes, any subordinated Indebtedness, or (ii) pay
in cash any amount in respect of any Indebtedness or preferred Equity Interests
that may at the obligor's option be paid in kind or in other securities.
SECTION 6.10. Capital Expenditures. (a) Permit the aggregate amount of
Capital Expenditures made by the Borrower and the Subsidiaries in any period set
forth below to exceed the amount set forth below for such period:
PERIOD AMOUNT
------
Closing Date through December 31, 2004 $4,350,000
Each fiscal year thereafter $12,000,000
(b) The amount of permitted Capital Expenditures set forth in paragraph (a)
above in respect of any fiscal year commencing with the fiscal year ending on
December 31, 2005, shall be increased (but not decreased) by (i) the amount of
unused permitted Capital Expenditures for the immediately preceding fiscal year
(or portion thereof) less (ii) an amount equal to unused Capital Expenditures
carried forward to such preceding fiscal year; provided, however, that in no
event shall the amount of the increase pursuant to this paragraph (b) in respect
of any fiscal year exceed $2,000,000.
SECTION 6.11. Interest Coverage Ratio. Permit the Interest Coverage Ratio
for any period of four consecutive fiscal quarters, in each case taken as one
accounting period, ending on the last day of any fiscal quarter (commencing with
the fiscal quarter ending September 30, 2004) after the Closing Date to be
less than 3.50 to 1.00.
SECTION 6.12. Maximum Leverage Ratio. Permit the Leverage Ratio as of the
last day of any fiscal quarter (commencing with the fiscal quarter ending on
September 30, 2004) to be greater than the ratio set forth opposite such period
below:
Period Ratio
------ -----
Closing Date through December 31, 2005 4.25 to 1.00
January 1, 2006 through June 30, 2006 4.00 to 1.00
July 1, 2006 through December 31, 2006 3.75 to 1.00
January 1, 2007 through December 31, 2007 3.50 to 1.00
January 1, 2008 through December 31, 2008 3.00 to 1.00
Thereafter 2.75 to 1.00
SECTION 6.13. Fiscal Year. With respect to Holdings and the Borrower,
change their fiscal year-end to a date other than December 31.
SECTION 6.14. Certain Equity Securities. Issue any capital stock that is
not Qualified Capital Stock.
ARTICLE VII
EVENTS OF DEFAULT
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in connection
with any Loan Document or the borrowings or issuances of Letters of Credit
hereunder, or any representation, warranty, statement or information contained
in any report, certificate, financial statement or other instrument furnished in
connection with or pursuant to any Loan Document, shall prove to have been
false or misleading in any material respect when so made, deemed made or
furnished;
(b) default shall be made in the payment of any principal of any Loan or the
reimbursement with respect to any L/C Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan or any
Fee or L/C Disbursement or any other amount (other than an amount referred to in
(b) above) due under any Loan Document, when and as the same shall become due
and payable, and such default shall continue unremedied for a period of three
Business Days;
(d) default shall be made in the due observance or performance by Holdings,
the Borrower or any Subsidiary of any covenant, condition or agreement contained
in Section 5.01(a), 5.05 or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by Holdings,
the Borrower or any Subsidiary of any covenant, condition or agreement contained
in any Loan Document (other than those specified in (b), (c) or (d) above) and
such default shall continue unremedied for a period of 30 days after notice
thereof from the Administrative Agent or any Lender to the Borrower;
(f) (i) Holdings, the Borrower or any Subsidiary shall fail to pay any
principal or interest, regardless of amount, due in respect of any Material
Indebtedness, when and as the same shall become due and payable (after giving
effect to any applicable grace period specified in the agreement or instrument
governing such Indebtedness), or (ii) any other event or condition occurs that
results in any Material Indebtedness becoming due prior to its scheduled
maturity or that enables or permits (with or without the giving of notice, the
lapse of time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material Indebtedness to
become due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this clause (ii) shall
not apply to secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of the property or assets securing such Indebtedness;
(g) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed in a court of competent jurisdiction seeking (i) relief in
respect of Holdings, the Borrower or any Subsidiary, or of a substantial part of
the property or assets of Holdings, the Borrower or a Subsidiary, under Title 11
of the United States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, the Borrower or any Subsidiary or
for a substantial part of the property or assets of Holdings, the Borrower or a
Subsidiary or (iii) the winding-up or liquidation of Holdings, the Borrower or
any Subsidiary; and such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of the foregoing shall
be entered;
(h) Holdings, the Borrower or any Subsidiary shall (i) voluntarily commence
any proceeding or file any petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other Federal,
state or foreign bankruptcy, insolvency, receivership or similar law, (ii)
consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or the filing of any petition described in (g) above,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holdings, the Borrower or any
Subsidiary or for a substantial part of the property or assets of Holdings, the
Borrower or any Subsidiary, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more judgments shall be rendered against Holdings, the Borrower,
any Subsidiary or any combination thereof and the same shall remain undischarged
for a period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor
to levy upon assets or properties of Holdings, the Borrower or any Subsidiary to
enforce any such judgment and such judgment either (i) is for the payment of
money in an aggregate amount in excess of $5,000,000 (to the extent not
adequately covered by insurance as to which the insurance company has been
notified of such judgment and has not denied coverage) or (ii) is for injunctive
relief and could reasonably be expected to result in a Material Adverse Effect;
(j) an ERISA Event shall have occurred that, in the opinion of the Required
Lenders, when taken together with all other such ERISA Events, could reasonably
be expected to result in liability of the Borrower and its ERISA Affiliates in
an aggregate amount exceeding $5,000,000;
(k) any Guarantee under the Guarantee and Collateral Agreement for any
reason shall cease to be in full force and effect (other than in accordance with
its terms), or any Guarantor shall deny in writing that it has any further
liability under the Guarantee and Collateral Agreement (other than as a result
of the discharge of such Guarantor in accordance with the terms of the Loan
Documents);
(l) any security interest purported to be created by any Security Document
shall cease to be, or shall be asserted by the Borrower or any other Loan Party
not to be, a valid, perfected, first priority (except as otherwise expressly
provided in this Agreement or such Security Document) security interest in the
securities, assets or properties covered thereby, except to the extent that any
such loss of perfection or priority results from the failure of the Collateral
Agent to maintain possession of certificates representing securities pledged
under the Guarantee and Collateral Agreement and except to the extent that such
loss is covered by a lender's title insurance policy and the related insurer
promptly after such loss shall have acknowledged in writing that such loss is
covered by such title insurance policy; or
(m) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to Holdings or
the Borrower described in paragraph (g) or (h) above), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrower,
take either or both of the following actions, at the same or different times:
(i) terminate forthwith the Commitments and (ii) declare the Loans then
outstanding to be forthwith due and payable in whole or in part, whereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall become
forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Borrower,
anything contained herein or in any other Loan Document to the contrary
notwithstanding; and in any event with respect to Holdings or the Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
ARTICLE VIII
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the
Administrative Agent and the Collateral Agent (for purposes of this Article
VIII, the Administrative Agent and the Collateral Agent are referred to
collectively as the "Agents") its agent and authorizes the Agents to take such
actions on its behalf and to exercise such powers as are delegated to such Agent
by the terms of the Loan Documents, together with such actions and powers as are
reasonably incidental thereto. Without limiting the generality of the
foregoing, the Agents are hereby expressly authorized to execute any and all
documents (including releases) with respect to the Collateral and the rights of
the Secured Parties with respect thereto, as contemplated by and in accordance
with the provisions of this Agreement and the Security Documents.
The bank serving as the Administrative Agent and/or the Collateral Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not an Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with Holdings, the Borrower or any
Subsidiary or other Affiliate thereof as if it were not an Agent hereunder.
Neither Agent shall have any duties or obligations except those expressly set
forth in the Loan Documents. Without limiting the generality of the foregoing,
(a) neither Agent shall be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) neither
Agent shall have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that such Agent is instructed in writing to exercise by the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.08), and (c) except
as expressly set forth in the Loan Documents, neither Agent shall have any duty
to disclose, nor shall it be liable for the failure to disclose, any information
relating to Holdings, the Borrower or any of the Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent and/or
Collateral Agent or any of its Affiliates in any capacity. Neither Agent shall
be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.08) or in the absence of its own gross negligence or wilful misconduct.
Neither Agent shall be deemed to have knowledge of any Default unless and until
written notice thereof is given to such Agent by Holdings, the Borrower or a
Lender, and neither Agent shall be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with any Loan Document, (ii) the contents of any certificate, report
or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed
or sent by the proper person. Each Agent may also rely upon any statement made
to it orally or by telephone and believed by it to have been made by the proper
person, and shall not incur any liability for relying thereon. Each Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
Each Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by it. Each Agent and any
such sub-agent may perform any and all its duties and exercise its rights and
powers by or through their respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of each Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.
Subject to the appointment and acceptance of a successor Agent as provided
below, either Agent may resign at any time by notifying the Lenders, the Issuing
Bank and the Borrower. Upon any such resignation, the Required Lenders shall
have the right, with the approval of the Borrower (such approval not to be
unreasonably withheld or delayed), to appoint a successor. If no successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the Lenders and the
Issuing Bank, appoint a successor Agent which shall be a bank with an office in
New York, New York, or an Affiliate of any such bank. Upon the acceptance of
its appointment as Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After an Agent's resignation
hereunder, the provisions of this Article and Section 9.05 shall continue in
effect for the benefit of such retiring Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while acting as Agent.
Each Lender acknowledges that it has, independently and without reliance upon
the Agents or any other Lender and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Agents or any other Lender and based on such documents
and information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement or any other Loan Document, any related agreement or any document
furnished hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. Notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by fax, as follows:
(a) if to the Borrower or Holdings, to it at World Trade Center Chicago, 444
Merchandise Mart, Chicago, Illinois 60654, Attention of David Harbert,
Chief Financial Officer (Fax No. (312) 527-1194);
(b) if to the Administrative Agent, the Collateral Agent or the Issuing
Bank, to Credit Suisse First Boston, Eleven Madison Avenue, New York, New York
10010, Attention of Agency Group (Fax No. (212) 325-8304); and
(c) if to a Lender, to it at its address (or fax number) set forth on
Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender
shall have become a party hereto.
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by fax or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01. As agreed to among Holdings, the Borrower, the Administrative
Agent and the applicable Lenders from time to time, notices and other
communications may also be delivered by e-mail to the e-mail address of a
representative of the applicable person provided from time to time by such
person.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower or Holdings herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the Issuing Bank and shall survive the
making by the Lenders of the Loans and the issuance of Letters of Credit by the
Issuing Bank, regardless of any investigation made by the Lenders or the Issuing
Bank or on their behalf, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any Fee or any
other amount payable under this Agreement or any other Loan Document is
outstanding and unpaid or any Letter of Credit is outstanding (unless such
Letter of Credit has been cash collateralized on terms satisfactory to the
Administrative Agent or is supported by a Backstop Letter of Credit) and so long
as the Commitments have not been terminated. The provisions of Sections 2.14,
2.16, 2.20 and 9.05 shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of
the transactions contemplated hereby, the repayment of any of the Loans, the
expiration of the Commitments, the expiration of any Letter of Credit, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Loan Document, or any investigation made by or on behalf of the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank.
SECTION 9.03. Binding Effect. This Agreement shall become effective when it
shall have been executed by the Borrower, Holdings and the Administrative
Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties
hereto.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the permitted successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the Borrower, Holdings, the Administrative
Agent, the Collateral Agent, the Issuing Bank or the Lenders that are contained
in this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it), with the prior
written consent of the Administrative Agent (not to be unreasonably
withheld or delayed); provided, however, that (i) in the case of an assignment
of a Revolving Credit Commitment, each of the Borrower, the Issuing Bank and the
Swingline Lender must also give its prior written consent to such assignment
(which consent shall not be unreasonably withheld or delayed) (provided, that
the consent of the Borrower shall not be required to any such assignment to a
Lender or an Affiliate of a Lender or during the continuance of any Event of
Default), (ii) the amount of the Commitment or Loans of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $1,000,000 in respect of Term Loans or Term Loan
Commitments (or, if less, the entire remaining amount of such Term Lender's Term
Loans or Term Loan Commitments; provided, that such minimum assignment amount
shall be aggregated for two or more simultaneous assignments by or to two or
more Related Funds) or $2,500,000 in respect of Revolving Loans or Revolving
Credit Commitments (or, if less, the entire remaining amount of such Revolving
Credit Lender's Revolving Loans or Revolving Credit Commitments), (iii) the
parties to each such assignment shall (A) electronically execute and deliver to
the Administrative Agent an Assignment and Acceptance via an electronic
settlement system acceptable to the Administrative Agent (which initially shall
be ClearPar, LLC) or (B) manually execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and recordation
fee of $3,500, and (iv) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire and all applicable
tax forms. Upon acceptance and recording pursuant to paragraph (e) of this
Section 9.04, from and after the effective date specified in each Assignment and
Acceptance, (A) the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement and (B) the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto but shall continue to be entitled
to the benefits of Sections 2.14, 2.16, 2.20 and 9.05, as well as to any Fees
accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that its
Term Loan Commitment and Revolving Credit Commitment, and the outstanding
balances of its Term Loans and Revolving Loans, in each case without giving
effect to assignments thereof which have not become effective, are as set forth
in such Assignment and Acceptance, (ii) except as set forth in (i) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of Holdings, the Borrower or any Subsidiary
or the performance or observance by Holdings, the Borrower or any Subsidiary of
any of its obligations under this Agreement, any other Loan Document or any
other instrument or document furnished pursuant hereto; (iii) such assignee
represents and warrants that it is legally authorized to enter into such
Assignment and Acceptance; (iv) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent financial
statements referred to in Section 3.05(a) or delivered pursuant to Section 5.04
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance; (v) such assignee will independently and without reliance upon the
Administrative Agent, the Collateral Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (vi) such assignee appoints and authorizes the
Administrative Agent and the Collateral Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent and the Collateral Agent, respectively, by the terms
hereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms
all the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in The City of New York a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive and the Borrower, the Administrative Agent, the Issuing Bank, the
Collateral Agent and the Lenders may treat each person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall
be available for inspection by the Borrower, the Issuing Bank, the Collateral
Agent and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of, and consent to, a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) above, if applicable, and, if required, the written consent of
the Borrower, the Swingline Lender and the Issuing Bank to such assignment and
any applicable tax forms, the Administrative Agent shall (i) accept such
Assignment and Acceptance and (ii) record the information contained therein in
the Register. No assignment shall be effective unless it has been recorded in
the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the Swingline
Lender, the Issuing Bank or the Administrative Agent sell participations to one
or more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.14, 2.16 and 2.20 to the same extent as if they were Lenders (but, with
respect to any particular participant, to no greater extent than the Lender that
sold the participation to such participant, unless the sale of the participation
to such participant is made with the Borrower's prior written consent) and (iv)
the Borrower, the Administrative Agent, the Issuing Bank and the Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrower relating to the
Loans or L/C Disbursements and to approve any amendment, modification or waiver
of any provision of this Agreement (other than amendments, modifications or
waivers decreasing any fees payable hereunder or the amount of principal of or
the rate at which interest is payable on the Loans, extending the maturity date
of any other scheduled principal payment date or date fixed for the payment of
interest on the Loans, increasing or extending the Commitments or releasing any
material Guarantor (other than any such release as provided for in any Security
Document in connection with the consummation of any transaction permitted under
this Agreement) or all or substantially all of the Collateral). A participant
that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.20 unless such participant agrees, for the benefit of the
Borrower, to comply with Section 2.20(e) as though it were a Lender.
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower, Holdings, any Subsidiary
or their business furnished to such Lender by or on behalf of the Borrower;
provided that, prior to any such disclosure of information designated by the
Borrower as confidential, each such assignee or participant or proposed assignee
or participant shall execute an agreement whereby such assignee or
participant shall agree (subject to customary exceptions) to preserve the
confidentiality of such confidential information on terms no less restrictive
than those applicable to the Lenders pursuant to Section 9.16.
(h) Any Lender may at any time, without the consent of or notice to the
Borrower, the Swingline Lender, the Issuing Bank or the Administrative Agent,
assign all or any portion of its rights under this Agreement to secure
extensions of credit to such Lender or in support of obligations owed by such
Lender; provided that no such assignment shall release a Lender from any of its
obligations hereunder or substitute any such assignee for such Lender as a party
hereto.
(i) Notwithstanding anything to the contrary contained herein, any Lender (a
"Granting Lender") may grant to a special purpose funding vehicle (an "SPC"),
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower all
or any part of any Loan that such Granting Lender would otherwise be obligated
to make to the Borrower pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan and (ii) if an
SPC elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees
(which agreement shall survive the termination of this Agreement) that, prior to
the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPC, it will
not institute against, or join any other person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section
9.04, any SPC may (i) with notice to, but without the prior written consent of,
the Borrower and the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to the Granting
Lender or to any financial institutions (consented to by the Borrower and
Administrative Agent) providing liquidity and/or credit support to or for the
account of such SPC to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPC.
(j) Neither Holdings nor the Borrower shall assign or delegate any of its
rights or duties hereunder without the prior written consent of the
Administrative Agent, the Issuing Bank and each Lender, and any attempted
assignment without such consent shall be null and void.
(k) In the event that S&P, Moody's and Thompson's BankWatch (or
InsuranceWatch Ratings Service, in the case of Lenders that are insurance
companies (or Best's Insurance Reports, if such insurance company is not rated
by Insurance Watch Ratings Service)) shall, after the date that any Lender
becomes a Revolving Credit Lender, downgrade the long-term certificate deposit
ratings of such Lender, and the resulting ratings shall be below BBB-, Baa3 and
C (or BB, in the case of a Lender that is an insurance company (or B, in the
case of an insurance company not rated by InsuranceWatch Ratings Service)), then
the Issuing Bank shall have the right, but not the obligation, at its own
expense, upon notice to such Lender and the Administrative Agent, to replace (or
to request the Borrower to use its reasonable efforts to replace) such Lender
with an assignee (in accordance with and subject to the restrictions contained
in paragraph (b) above), and such Lender hereby agrees to transfer and assign
without recourse (in accordance with and subject to the restrictions contained
in paragraph (b) above) all its interests, rights and obligations in respect of
its Revolving Credit Commitment to such assignee; provided, however, that (i) no
such assignment shall conflict with any law, rule or regulation or order of any
Governmental Authority and (ii) the Issuing Bank or such assignee, as the case
may be, shall pay to such Lender in immediately available funds on the date of
such assignment the principal of and interest accrued to the date of payment on
the Loans made by such Lender hereunder and all other amounts accrued for such
Lender's account or owed to it hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower and Holdings agree,
jointly and severally, to pay all reasonable out-of-pocket expenses incurred by
the Administrative Agent, the Collateral Agent, the Issuing Bank and the
Swingline Lender in connection with the syndication of the credit facilities
provided for herein and the preparation and administration of this Agreement and
the other Loan Documents or in connection with any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the
transactions hereby or thereby contemplated shall be consummated) or incurred by
the Administrative Agent, the Collateral Agent or any Lender in connection with
the enforcement or protection of its rights in connection with this Agreement
and the other Loan Documents or in connection with the Loans made or Letters of
Credit issued hereunder, including the reasonable fees, charges and
disbursements of Cravath, Swaine & Moore LLP, counsel for the Administrative
Agent and the Collateral Agent, and, in connection with any such enforcement or
protection, the fees, charges and disbursements of any other counsel for the
Administrative Agent, the Collateral Agent or any Lender.
(b) The Borrower and Holdings agree, jointly and severally, to indemnify the
Administrative Agent, the Collateral Agent, the Syndication Agent, the
Documentation Agent, each Lender, the Issuing Bank and each Related Party of any
of the foregoing persons (each such person being called an "Indemnitee")
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees,
charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i) the execution
or delivery of this Agreement or any other Loan Document or any agreement or
instrument contemplated thereby, the performance by the parties thereto of their
respective obligations thereunder or the consummation of the Transactions and
the other transactions contemplated thereby, (ii) the use of the proceeds of the
Loans or issuance of Letters of Credit, (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto, or (iv) any actual or alleged presence or Release
of Hazardous Materials on any property currently or formerly owned or operated
by the Borrower or any of the Subsidiaries, or any Environmental Liability
related in any way to the Borrower or the Subsidiaries; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted primarily from the gross negligence or wilful misconduct of such
Indemnitee.
(c) To the extent that Holdings and the Borrower fail to pay any amount
required to be paid by them to the Administrative Agent, the Collateral Agent,
the Syndication Agent, the Documentation Agent, the Issuing Bank or the
Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, the Collateral Agent, the
Syndication Agent, the Documentation Agent, the Issuing Bank or the Swingline
Lender, as the case may be, such Lender's pro rata share (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount; provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent, the Collateral Agent,
the Syndication Agent, the Documentation Agent, the Issuing Bank or the
Swingline Lender in its capacity as such. For purposes hereof, a Lender's "pro
rata share" shall be determined based upon its share of the sum of the Aggregate
Revolving Credit Exposure, outstanding Term Loans and unused Commitments at the
time.
(d) To the extent permitted by applicable law, neither Holdings nor the
Borrower shall assert, and each hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or Letter of Credit or the use
of the proceeds thereof.
(e) The provisions of this Section 9.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the expiration of the Commitments, the expiration of any Letter of
Credit, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by or on behalf
of the Administrative Agent, the Collateral Agent, any Lender or the Issuing
Bank. All amounts due under this Section 9.05 shall be payable on written
demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time to
time, except to the extent prohibited by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower or Holdings against any of and all the
obligations of the Borrower or Holdings now or hereafter existing under this
Agreement and any other Loan Documents held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement or
such other Loan Document and although such obligations may be unmatured. The
rights of each Lender under this Section 9.06 are in addition to other rights
and remedies (including other rights of setoff) which such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE
DATE SUCH LETTER OF CREDIT WAS ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE
(THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS,
THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank in
exercising any power or right hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower or any other Loan Party therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Borrower or Holdings in
any case shall entitle the Borrower or Holdings to any other or further notice
or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower, Holdings and the Required Lenders; provided, however, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan or any date for reimbursement of an L/C Disbursement,
or waive or excuse any such payment or any part thereof, or decrease the rate of
interest on any Loan or L/C Disbursement, without the prior written consent of
each Lender affected thereby, (ii) increase or extend the Commitment or decrease
or extend the date for payment of any Fees of any Lender without the prior
written consent of such Lender, (iii) amend or modify the pro rata requirements
of Section 2.17, the provisions of Section 9.04(j) or the provisions of this
Section or release any material Guarantor (other than any such release as
provided for in any Security Document in connection with the consummation of any
transaction permitted under this Agreement) or all or substantially all part of
the Collateral, without the prior written consent of each Lender, (iv) change
the provisions of any Loan Document in a manner that by its terms adversely
affects the rights in respect of payments due to Lenders holding Loans of one
Class differently from the rights of Lenders holding Loans of any other Class
without the prior written consent of Lenders holding a majority in interest of
the outstanding Loans and unused Commitments of each adversely affected Class,
(v) modify the protections afforded to an SPC pursuant to the provisions of
Section 9.04(i) without the written consent of such SPC or (vi) reduce the
percentage contained in the definition of the term "Required Lenders" without
the prior written consent of each Lender (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 Term Loan Commitments and Revolving Credit
Commitments on the date hereof); provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender hereunder
or under any other Loan Document without the prior written consent of the
Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline
Lender. Notwithstanding the foregoing, if the terms of any amendment to this
Agreement provide that any Class of Loans will be repaid in full and the
Commitments of such Class (if any) terminated as a condition to the
effectiveness of such amendment, then so long as the Loans and Commitments (if
any) of such Class are in fact repaid and terminated upon the effectiveness of
such amendment, such Loans and Commitments shall not be included in the
determination of the Required Lenders with respect to such amendment.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and other
amounts which are treated as interest on such Loan or participation in such
L/C Disbursement under applicable law (collectively the "Charges"), shall exceed
the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan or
participation in accordance with applicable law, the rate of interest payable in
respect of such Loan or participation hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the
extent lawful, the interest and Charges that would have been payable in respect
of such Loan or participation but were not payable as a result of the operation
of this Section 9.09 shall be cumulated and the interest and Charges payable to
such Lender in respect of other Loans or participations or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
SECTION 9.10. Entire Agreement. This Agreement, the Fee Letter and the
other Loan Documents constitute the entire contract between the parties relative
to the subject matter hereof. Any other previous agreement among the
parties with respect to the subject matter hereof is superseded by this
Agreement and the other Loan Documents. Nothing in this Agreement or in the
other Loan Documents, expressed or implied, is intended to confer upon any
person (other than the parties hereto and thereto, their respective successors
and assigns permitted hereunder (including any Affiliate of the Issuing Bank
that issues any Letter of Credit) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Collateral
Agent, the Syndication Agent, the Documentation Agent, the Issuing Bank and the
Lenders) any rights, remedies, obligations or liabilities under or by reason of
this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the provisions
contained in this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original but all of which when taken together shall constitute a
single contract, and shall become effective as provided in Section 9.03.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each of
Holdings and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent, the Collateral Agent, the Syndication
Agent, the Documentation Agent, the Issuing Bank or any Lender may otherwise
have to bring any action or proceeding relating to this Agreement or the other
Loan Documents against the Borrower, Holdings or their respective properties in
the courts of any jurisdiction.
(b) Each of Holdings and the Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the other
Loan Documents in any New York State or Federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(c) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 9.01. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 9.16. Confidentiality. Each of the Administrative Agent, the
Collateral Agent, the Syndication Agent, the Documentation Agent, the Issuing
Bank and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its and its
Affiliates' officers, directors, trustees, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority or
quasi-regulatory authority (such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or regulations or
by any subpoena or similar legal process, (d) in connection with the exercise of
any remedies hereunder or under the other Loan Documents or any suit,
action or proceeding relating to the enforcement of its rights hereunder or
thereunder, (e) subject to an agreement containing provisions substantially the
same as those of this Section 9.16, to (i) any actual or prospective assignee or
pledgee of or participant in any of its rights or obligations under this
Agreement and the other Loan Documents or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower or any Subsidiary or any of their respective obligations, (f) with
the consent of the Borrower or (g) to the extent such Information becomes
publicly available other than as a result of a breach of this Section 9.16. For
the purposes of this Section, "Information" shall mean all information received
from the Borrower or Holdings and related to the Borrower, Holdings, any
Subsidiary or their business, other than any such information that was available
to the Administrative Agent, the Collateral Agent, the Issuing Bank or any
Lender on a nonconfidential basis prior to its disclosure by the Borrower or
Holdings; provided that, in the case of Information received from the Borrower
or Holdings after the date hereof, such information is clearly identified at the
time of delivery as confidential or is of a nature that the recipient should
reasonably believe to be confidential. Any person required to maintain the
confidentiality of Information as provided in this Section 9.16 shall be
considered to have complied with its obligation to do so if such person has
exercised the same degree of care to maintain the confidentiality of such
Information as such person would accord its own confidential information.
SECTION 9.17. USA Patriot Act Notice. Each Lender and the Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies Holdings and
the Borrower that pursuant to the requirements of the USA Patriot Act, it is
required to obtain, verify and record information that identifies Holdings and
the Borrower, which information includes the name and address of Holdings and
the Borrower and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify Holdings and the Borrower in
accordance with the USA Patriot Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
CCC INFORMATION SERVICES INC.
by
/s/ David L. Harbert
Name: David L. Harbert
-------------------------
Title: Chief Financial Officer
CCC INFORMATION SERVICES GROUP INC.
by
/s/ David L. Harbert
Name: David L. Harbert
-------------------------
Title: Chief Financial Officer
CREDIT SUISSE FIRST BOSTON, acting through its Cayman Islands Branch,
individually and as Administrative Agent, Collateral Agent, Swingline Lender and
Issuing Bank,
by
/s/ Mark E. Gleason
Name: Mark E. Gleason
------------------------
Title: Director
by
/s/ Joshua Parrish
Name: Joshua Parrish
----------------------
Title: Associate
LASALLE BANK NATIONAL ASSOCIATION, individually and as Documentation Agent,
by
/s/ Amy Long
Name: Amy Long
----------------
Title: First Vice President
JEFFERIES & COMPANY, INC.,
as Syndication Agent,
by
/s/ M. Brent Stevens
Name: M. Brent Stevens
-------------------------
Title: Executive Vice President